Reopen Beach Road seeking to intervene in lawsuit Siesta property owners filed over Mike Cosentino’s County Charter amendments

Hearing set for Jan. 30 on plaintiffs’ latest motion in case

Bollards installed in late January 2017 are at the ends of the vacated segment of North Beach Road. Signage makes plain that the public can access the road segment. File photo

Siesta Key resident Michael Cosentino has asked a 12th Judicial Circuit Court judge to allow a nonprofit organization he established in June 2016 — Reopen Beach Road — to intervene in a lawsuit against Sarasota County. That complaint seeks to have the court throw out two amendments Cosentino proposed to add to the County Charter, which won voter approval in November 2018.

The plaintiffs in the case are William and Sheila Caflisch, who own a number of parcels on Siesta Key, including property on North Beach Road.

A 30-minute hearing had been set for Jan. 30 on a new motion the Caflisches filed on Jan. 3. Circuit Judge Maria M. Ruhl, who just won election to the bench in the Nov. 6, 2018 General Election, will preside, court records show. The new motion reflects the passage of the amendments, while the Caflisches’ original complaint was filed prior to the election.

As of the publication deadline for The Sarasota News Leader this week, Ruhl had not ruled on whether to allow Reopen Beach Road to intervene.

Circuit Judge Maria Ruhl. Image from the 12th Judicial Circuit Court website

In a statement released to the News Leader on the evening of Jan. 16, Cosentino wrote, “As a result of the County’s failure to support the voting public’s interests and defend the will of the electorate, Reopen Beach Road is now forced to intervene in this case to protect the enactment of our two charter amendments as approved by the overwhelming majority of Sarasotans this past Nov. 6th. We will continue to strive to protect our precious public lands and the rights of the disabled community to have equal access and use of them.”

Filed on Oct. 9, 2018, the Caflisches Complaint for Declaratory and Injunctive Relief asked the court to strike Cosentino’s proposed amendments from the November 2018 ballot, arguing that the amendments violate provisions of state law.

The first amendment, 3.9, calls for the county to reacquire a 373-foot-long segment of North Beach Road that the County Commission agreed to vacate — on a 4-1 vote — on May 11, 2016.

That part of the road had been closed to vehicular traffic since 1993 because of repeated storm damage, county staff has pointed out. Following the vacation, property owners on North Beach Road won approval of county staff to install bollards on either end of the closed section, so any person could access the road for walking, bicycling and other activities, except use of a motor vehicle.

In a complaint he filed against the county in June 2016, Cosentino argued that the commission violated a policy in the county’s Comprehensive Plan when it approved the vacation. He also has said numerous times in public that all of North Beach Road should remain open, as it would afford the driving public one of the few uninterrupted views of the Gulf of Mexico in Sarasota County.

On May 24, 2016, in his first remarks to the County Commission after the road vacation vote, Cosentino said, “Every day, when I’d get home from work, I would take that little slow roll down that beach … and just feel my heart rate come down and my blood pressure go down. It was an amazing thing.”

The Reopen Beach Road website says, “On May 11, 2016, the Sarasota County Board of Commissioners voted to give away the last remaining public right-of-way along the number 1 beach in the world — a section of Beach Road north of Columbus Boulevard.

“We are here to stop and reverse this action which is in direct opposition to the general public welfare and is harmful to our local business community.”

County concurs with Caflisches on points

The house at 77 N. Beach Road is owned by the Caflisch family. File photo

In both their 2018 complaint and their Jan. 3 motion, the Caflisches contend that the Florida Community Planning Act “requires counties to adopt comprehensive plans to guide growth and development within their boundaries.” Further, they point out, policies in the Sarasota County Comprehensive Plan “are intended to protect and preserve native habitat, including existing sea turtle nesting and beach-nesting shorebird habitats.” According to county consultants, they continued in their original complaint, “the shore-hardening necessary to re-build and to maintain the vacated portion of Beach Road requires substantial damage to those native habitats.”

In the county’ Nov. 5, 2018 answer to the Caflisches’ original complaint, Assistant Sarasota County Attorney David M. Pearce admitted that “the portion of Beach Road was severely damaged by a series of tropical storms” and that the county closed that segment “because it was unsafe for motorized vehicles.”

The county answer also concurred with another one of the Caflisches’ arguments: “that rebuilding and maintaining the road would involve expenditure of taxpayer funds” and that the Charter amendment’s dictate that the county undertake such a project “conflicts with the express discretionary authority [of the County Commission] to make budgetary decisions as [provided] by general law.”

Photos taken of North Beach Road in February 2013 show damage inflicted on the area by storms. Image courtesy Sarasota County

The second amendment, 3.10, seeks to prevent the vacation of any “County-owned road segments or rights of way along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista.”

In their Jan. 3 motion, the Caflisches argued that Amendment 3.10 usurps “the exclusive authority [emphasis in the document]” that state law gives the county to “‘[v]acate, abandon, discontinue and close any existing public or private street, alleyway, road, highway, or other place used for travel, or any portion thereof, other than a state or federal highway …’”

Pearce also wrote in the county’s November 2018 answer that Charter Amendment 3.10 “violates general law …”

The Jan. 3 motion the Caflisches filed in the case reflects the fact that the amendments were approved in November 2018 and that the county has agreed with the Caflisches that the amendments “are in conflict with existing Florida law.” The motion asks that Amendment 3.9 be “declared void and unenforceable,” while it seeks to have the court declare Amendment 3.10 “void and inoperative.”

Cosentino’s challenges

During remarks before the County Commission on Nov. 27, 2018, Cosentino and a number of his supporters urged the board members to abide by the will of the voters who approved both Charter amendments.

However, on a number of occasions since the election, commissioners have expressed frustration, especially, about what they contend is the vagueness of Amendment 3.10. Additionally, County Attorney Stephen DeMarsh has provided public comments during board meetings, regarding his and his staff’s concerns about the legality of the measures.

Mike Cosentino addresses the County Commission on Aug. 29, 2018. File photo

In the motion seeking to intervene in the Caflisch case, Reopen Beach Road references the goal of Charter Amendment 3.9 to compel the county “to follow the recommendations of taxpayer-funded engineering reports by rebuilding Beach Road … and protect it and the upland structures from future storm-related events and to ensure beach access for the mobility-impaired and for lateral pedestrian access as well as to ensure long-term taxpayer savings.”

In 2013, a Jacksonville consulting firm, Taylor Engineering, completed a report regarding the repeated damage to North Beach Road. It offered several options the county could pursue to stabilize the road, including a step revetment system that would cost slightly more than $2.1 million. Cosentino has argued over the past two-and-a-half years that the County Commission should have agreed to the step revetment system. He also has contended recently that, even with higher construction costs, the project would not be considerably more than the 2013 estimate.

However, Thai Tran, a long-time transportation engineer for the county, testified in a deposition in Cosentino’s lawsuit against the county that he would expect the repairs to North Beach Road to cost at least $7 million.

Additionally, county Public Works Department staff just recently pointed to problems with a step revetment system on Casey Key Road, although Cosentino has cited that structure as a model of success.

The Reopen Beach Road motion to intervene stresses that the nonprofit “has a substantial interest in these proceedings because it drafted and sponsored the two Charter Amendments which are the subject of this case.” It points to Section 1.230 of the Florida Rules of Civil Procedure, which, according to the motion, says “that anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention.”

It further notes that Sarasota County “has not defended the Amendments.”

Amendment 3.9 won approval of 65% of the voters who addressed it on their November 2018 ballots, the motion continues, while Amendment 3.10 won with even greater support — 72.7%.

“The will of the electorate is at stake in this case,” the motion says, “and should be protected at all costs.”

The attorney for Cosentino and Reopen Beach Road is Lee Robert Rohe of Big Pine Key.

The attorneys for the Caflisches are S. William Moore and Ryan C. Reese of Moore Bowman & Rix in Sarasota.

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