In remarks to judge, Cosentino alleges ‘fraudulent misrepresentation of law and facts’ by county and opposing attorneys
A 12th Judicial Circuit Court trial could be conducted as early as September on the remaining issues related to the Sarasota County Commission’s May 11, 2016 vacation of a 373-foot-long segment of Siesta Key’s North Beach Road.
During a 30-minute hearing on June 25 at the Silvertooth Judicial Center in downtown Sarasota, Circuit Judge Andrea McHugh directed Assistant County Attorney David Pearce to consult with the attorney for one party who was not present that day about consolidating two cases that arose out of the road vacation. If that attorney says his clients are agreeable — as the other parties are — then McHugh said she would consolidate the original case Siesta resident Michael Cosentino filed against the county in June 2016 and a second case North Beach Road property owners filed in October 2018.
Additionally, provided the consolidation goes forward, McHugh asked that all the parties confer on the possibility of scheduling a non-jury trial in September or November.
In the meantime, Cosentino reiterated arguments he has made since he filed his complaint in 2016, alleging that the County Commission violated a policy in its Comprehensive Plan in approving the North Beach Road vacation on a 4-1 vote.
“I want to bring some things to light with respect to fraudulent misrepresentation of the law and facts” by the county and the attorneys for the other parties in the cases, Cosentino told McHugh on June 25. “There has not been a document related to Beach Road submitted anywhere since probably 2009 that was not the result of fraud,” he added.
Later, he told McHugh, “Everything that’s happened in this case is literally a result of collusion between the Sarasota County Attorney’s Office and the intervenors in the original case to defraud the taxpayers in the United States, in the state of Florida and the county. This is a bad, ugly situation …”
In May 2016, three sets of property owners on North Beach Road petitioned the County Commission for the vacation of the road segment, pointing out that vehicles had not been allowed on that stretch since 1993 because of repeated storm damage.
One couple among the petitioners, Dennis and Wendy Madden, also had applied for a Coastal Setback Variance so they could construct a new six-unit structure on the landward side of the road. They planned to tear down multiple older buildings that no longer conformed to modern building regulations. Their attorney during the May 2016 hearing — Charles D. Bailey III of the Williams Parker firm in Sarasota — explained that they needed the square footage of the right of way of the vacated road segment, in combination with property they owned seaward of the road as well as landward of the road, to create enough land to comply with county zoning regulations for the new construction.
The County Commission also approved the Coastal Setback Variance.
In October 2018, another couple among the petitioners for the road vacation — William and Sheila Caflisch — filed a complaint in the 12th Judicial Circuit Court in an effort to have two Sarasota County Charter amendments Cosentino had written removed from the Nov. 6, 2018 ballot.
One of those amendments called for the county to reacquire the vacated segment of North Beach Road. The other said the county must retain ownership of all county-owned parks and preserves, as well as county-owned road segments or rights of way “along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista.”
The latter amendment won support of more than 72% of the voters who cast ballots on it. The other amendment was approved with support from more than 65% of the voters in the November 2018 election.
Circuit Judge Frederick Mercurio, who originally presided over both the complaint Cosentino filed in 2016 and the Caflisch case, refused to strike the amendments from the ballot. After both amendments became part of the County Charter, the county joined the Caflisches in contending that the amendments contravene authority the Florida Constitution gives to county commissions.
A long process
Over the past three years, changes in judges presiding over the case — and the withdrawal of Cosentino’s first two attorneys — have resulted in a number of delays in the litigation.
In June 25 remarks to McHugh, Cosentino impugned the reputation of his second attorney, Lee Robert Rohe of Big Pine Key.
He and Rohe had a disagreement over a Motion to Dismiss a county crossclaim over the Charter amendments, Cosentino told McHugh. “‘Why don’t we just answer the doggone thing and consolidate the cases?’” was what he asked Rohe, Cosentino continued, noting that he is appealing Mercurio’s last ruling — in favor of the county — in the case he filed in June 2016.
Referring to his latest attorney, Fred E. Moore of the Blalock Walters firm in Bradenton, Cosentino said, “Quite frankly, I had discussions with co-counsel as much as a year ago” about the possibility that Rohe might have Alzheimer’s. “What [Rohe] did with my appellate brief was horrible. … He actually put in my appellate brief without even showing it to me. I’m now trying to clean up that mess.”
Then Cosentino explained to McHugh that Moore is “not exactly up to speed with the case as far as all of the tangential issues …”
Further, Cosentino said, “We have thus far been ramrodded out of any discovery.”
Later, he told her that he had provided more than “6,000 pages” of documents in responding to requests for discovery from other parties in the litigation. “I have a bunch of depositions that I want to take,” he added.
McHugh responded that she did not believe consolidating the original case with the Caflisches’ complaint would imperil Cosentino’s ability to conduct discovery.
Trying to move forward
As McHugh steered the discussion back to the consolidation issue, she asked the attorneys for their clients’ views on that point.
William Moore of Sarasota, the Caflisches’ attorney, said his clients did not object to consolidation. He added that the Caflisches would “just like to proceed” on a new challenge to the Charter amendments that he filed in late December 2019, after their passage. Recorded in the case docket on Jan. 3, Moore wrote that both amendments violate existing state law, so the court should rule them void.
Since then, Moore continued, the court had allowed Cosentino and a nonprofit organization Cosentino founded in June 2016 — Reopen Beach Road — to intervene in the case. “We did not oppose [that action].”
Assistant County Attorney Pearce told McHugh that the county also does not object to consolidating the cases. “The parties are the same; the issues are the same.”
“Do the Maddens agree to the consolidation?” McHugh asked.
“I suspect they would not object,” Pearce responded.
Then Fred Moore, Cosentino’s attorney, said he had had a “variety of conversations” with M. Lewis Hall III, also of the Williams Parker firm, who is counsel for the Maddens. “I believe there is no objection [from the Maddens],” Moore added, but Hall had not provided formal correspondence to that effect.
McHugh told Pearce to confer with Hall and send her office a letter confirming that the Maddens are in favor of the consolidation, if that is indeed the situation. “I would be happy to sign that.”
The summary judgment issue
During the hearing, Pearce also pointed out that he had filed for summary judgment in the original Cosentino case, asking the court to rule that the Charter amendments are unconstitutional.
That motion says, “This Court need only review the text of the charter amendments to determine whether they are inconsistent with state law or vague.”
He argued in the motion that Cosentino “cannot forestall summary judgment by claiming a need to conduct discovery to develop the material facts of this case.”
“There are substantial, historical factual allegations that the county, the Maddens and the Caflisches have put in their complaint,” Fred Moore told McHugh on June 25. “We do believe that we have a right to look at the historical allegations and information.”
Moore added, “I’m not looking at a terrible amount of time. … Give us 60, 90 days …”
“What discovery is needed?” Pearce asked. “This is an official constitutionality challenge.”
“This court doesn’t have the authority to blanketly prevent discovery,” McHugh replied.
“I understand, your honor,” Pearce said.
In response to a question from Pearce about how much time Fred Moore needed, Moore said that he felt he could file the request for discovery “within the next seven to 10 days.”
Pearce then pointed out that the county filed its crossclaim over the validity of the Charter amendments in October 2018. “They have conducted nodiscovery since October,” he told McHugh.
His concern, Pearce continued, is that the Charter amendments are hampering the ability of the County Commission to conduct business. For example, he said, although the commission early this year signed a lease that could lead to the sale of property at the county-owned Benderson Park to Mote Marine Laboratory, the existence of the Charter amendment calling for the county to retain all lands with even a waterfront vista has called into question the legality of that action.
Mote Marine wants to construct a $130-million aquarium and science education center at Benderson Park, which is close to Interstate 75. The park is known internationally for the rowing events held on its primary lake.
“There is some significant concern,” Pearce stressed.
“I’m not looking to delay this thing any longer than necessary,” Fred Moore responded.
Then William Moore reiterated the Caflisches’ interest in seeking a resolution to their case.
McHugh finally said that quick responses to requests for discovery could speed up the timeline for the trial.
She did agree to a later proceeding — similar to the one this week — to set a date for a hearing on the county’s motion for summary judgment on the Charter amendments issue.