Private meeting likely in early January between county attorney’s staff and County Commission to discuss potential settlement of North Beach Road issues

Item on Dec. 11 Consent Agenda raises anew commission concerns about abiding with language in one County Charter amendment approved on Nov. 6

At the request of Sarasota County Attorney Stephen DeMarsh, the County Commission will hold a “shade” meeting, most likely in January 2019, to discuss how the board wants to proceed with ongoing litigation revolving around two County Charter amendments that won voter approval on Nov. 6.

Each relates to the board’s May 11, 2016 vote to vacate a 373-segment of North Beach Road on Siesta Key.

A private meeting between the commissioners and legal staff is allowed under state law to discuss settlement options, DeMarsh explained during the board’s regular meeting on Dec. 11 in Venice.

Nonetheless, state law does require him to make a formal request of the board for any shade meeting, DeMarsh pointed out, so that was what he was doing.

In the meantime, DeMarsh noted, at the direction of the commission in late November, a representative of County Administrator Jonathan Lewis and a representative of the Office of the County Attorney plan to meet early next week with Siesta Key resident Michael Cosentino and Cosentino’s attorney regarding a proposal from Cosentino for the County Commission to consider.

Cosentino, who drew up the two Charter amendments at the heart of the Dec. 11 discussion, expressed to Commissioner Charles Hines on Nov. 27 a desire to talk with county staff about settling the issues surrounding those amendments. Hines then won agreement from his colleagues for that meeting to take place.

Emphasizing the concerns

Although DeMarsh said on Dec. 11 that he already had planned to seek commission approval for the shade session, its need was underscored by action sought on the board’s Consent Agenda of routine business items that morning. The item asked for establishment of a time and place for a public hearing on a petition for the county to vacate part of its interest in an 84,171.45-square-foot portion of Hardee Drive in Venice. Located between Inverness Road and Jackson Road, the property is marked on the Venice Farms plat, according to Sarasota County Clerk of Court records provided in the board’s packet for the meeting.

Commissioner Hines had pulled the item from the Consent Agenda even before attorney Steve Rees of the Icard Merrill firm in Sarasota addressed the commissioners about it during the Open to the Public portion of the Dec. 11 meeting.

Hines questioned Rees, who is the agent for the petitioners — David Lee Miller, Nancy Ann Miller and Sylvia Quartier — about whether the road segment could be considered to have a “waterfront vista.”

Hines referenced the Cosentino Charter amendment that won support of 72.7% of the voters who cast ballots on it in the Nov. 6 General Election. That amendment says, “The County shall not sell, and shall retain ownership of, County-owned Parks and Preserves, and shall not vacate or sell County-owned road segments or right of way along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista. The County shall encourage maximum right of way use for public access and viewing of waterfront vistas. Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”

Rees showed the board the applicable section of the 1926 Venice Farms plat, which depicted the area without a body of water visible in current aerial maps. After Interstate 75 was constructed through the area, Rees explained, subsequent aerial views show the water. “It is a completely manmade water body.” If his clients wanted to do so, Rees added, they “could put a hose in there and drain the entire [borrow] pit.”

His position, Rees said, is that the Cosentino Charter amendment “does not apply in this situation [of the requested street vacation].”

Hines indicated that he believes the argument could be made that it does. “Can we see the water from the road segment that’s proposed to be vacated?”

“Potentially, yes,” Rees responded. “It is heavily wooded in that area.”

Chair Nancy Detert then voiced frustration that the County Charter does not afford the commissioners the ability to interpret citizen-initiated Charter amendments. She pointed out that state law allows the Legislature to approve rules for implementing state constitutional amendments that pass.

DeMarsh said of the local process, “I do acknowledge that this works differently than it does at the state level.”

Nonetheless, DeMarsh continued, “I think there’s real question as to whether [the Cosentino Charter amendment] is enforceable. … It’s quite broad in its application to the real world.”

“We do want to implement the wishes of the people,” Detert responded. “I think we understand the spirit of what it is they were trying to accomplish,” she added of the amendment’s supporters. “But I think we need to do everything we can to protect ourselves from potential lawsuits. … It’s just fraught with alligators, frankly.”

“I agree with you on that,” DeMarsh told her.

The County Charter gives a citizen “the right to judicial relief” to enforce the Charter, he continued, “and so that’s the problem.”

“The commission can interpret the Charter language one way,” DeMarsh explained, and a citizen can interpret the language another way. In such cases, he said, the final decision on the correct interpretation comes via a court ruling.

A process already underway

During the discussion, DeMarsh referenced the fact that the county has been contesting the legality of both Cosentino’s Charter amendments.

The second amendment calls for the county to reacquire the section of North Beach Road that the commission vacated in May 2016 at the request of three sets of property owners. It also calls for the county to repair and reopen the road, which has been closed to motor vehicle traffic since 1993 because of repeated storm damage.

Cosentino filed suit against the county in June 2016, seeking to overturn the road vacation. Although he has lost his case in the 12th Judicial Circuit Court, he has appealed Circuit Judge Frederick Mercurio’s dismissal of the last part of the complaint to the Second District Court of Appeal.

If the board wanted the Office of the County Attorney (OCA) to continue to pursue its action on the Charter amendments in the 12th Judicial Circuit Court, DeMarsh said, then the OCA would do so.

A Nov. 15 memo from the OCA to the commission explains the ongoing litigation.

In Cosentino v. Sarasota County, the memo says, the Office of the County Attorney “filed a post-election challenge to the two charter amendments. … In Caflisch v. Sarasota County, the Plaintiffs sued Sarasota County alleging the two charter amendments are illegal. The County filed its answer which agreed the amendments violate state law and are unconstitutionally vague,” the memo continues.

“In each lawsuit,” the memo says, “the County alleges the two charter amendments are inconsistent with executive/administrative authority granted to the Board by statute to convey property, vacate roads, and make budgetary decisions. The County also alleged that the amendments are vague.”

Contingent issues

Another approach, DeMarsh suggested to the board on Dec. 11, would be for the commission to seek a “declaratory relief action” from the court.

Detert told him the latter idea, she felt, was “going too far.” She added, “What I’m looking for is not to have [the amendment] declared illegal, but to have some clarity.”

Commissioner Christian Ziegler asked when the Charter amendments became law.

“Upon passing,” DeMarsh replied, though he clarified that the amendments would have been considered law after the election results were certified.

Then Ziegler asked whether the passage of the amendment regarding reacquisition of the vacated North Beach Road segment implied that a certain timeline must be followed.

It did not, DeMarsh told him.

When Ziegler asked whether, for example, the commission could wait five years to reacquire the road segment, DeMarsh responded, “If there were a lengthy period of time with no action, I presume that the citizen might be able to file an action, seeking a judicial relief requiring the board to take some action.”

“There’s that vagueness that’s in place [about the timeline], right?” Ziegler asked.

“I think that’s correct, yes,” DeMarsh replied.

Commissioner Hines then referenced the Nov. 15 memo from the Office of the County Attorney. “I think that we really are now seeing what the application of this fact pattern is on how vague and confusing and not a workable type of Charter amendment [this is] that was passed.”

Hines reminded his colleagues that he had raised issues about the proposed ordinance before the election. Then, he had noted the pending deal with Mote Marine Laboratory for a lease or sale of county-owned land at Nathan Benderson Park for a new Mote aquarium. Benderson Park, as an internationally known rowing facility, has an abundance of water.

Yet another example, Hines pointed out on Dec. 11, is that if the County Commission ends up acquiring Orange Hammock Ranch in South County, as it hopes to do, and it wants to sell the City of North Port a 200-acre section of that property that already has been cleared and has no ecological value. The Cosentino amendment, he said, would prevent such a transaction.

Then Hines referred again to the Hardee Drive road vacation petition. “That’s how this can really be bizarre.”

Hines added, “It’s important that a judge reviews this language [in the Charter amendment] and makes a determination whether it’s valid or not. If a judge says it’s valid, we’re stuck with potentially having to turn down this street vacation because [the property] has a vista of water.”

Finally, on a motion by Hines, the board did vote unanimously to set the public hearing on the Hardee Drive vacation for the morning of Jan. 15. The hearing is scheduled to be conducted at the R.L. Anderson Administration Center in Venice.