Second District Court of Appeal denies Cosentino motion for rehearing of North Beach Road case

County attorney tells commissioners that he expects decision to mark end of more than 5 years of litigation

Bollards installed at the intersection of North Beach Road and Columbus Boulevard are designed to keep out motor vehicle traffic. Pedestrians and bicyclists are welcome on the stretch. File photo

Five years and three months after it began, litigation over the Sarasota County Commission’s vacation of a 373-foot portion of North Beach Road finally may be at an end.

That was the indication that County Attorney Frederick J. “Rick” Elbrecht gave the County Commission on Sept. 28.

Exactly a week earlier, the Second District Court of Appeal issued a denial of a motion filed by the plaintiff, Michael Cosentino of Siesta Key, for a rehearing or rehearing en banc after a three-judge panel of the court ruled against Cosentino on June 11.

En banc is a legal term referring to all the judges serving on a court of appeals hearing a case.

Cosentino may attempt to appeal the decision to the Florida Supreme Court, Elbrecht added. “However,” as Elbrecht noted in a Sept. 21 memo to the commissioners, the Florida Supreme Court’s jurisdiction is limited to “a narrow set of circumstances.” Therefore, he told the board members on Sept. 28, the chances of the high court’s accepting the case “would be very low. So this will likely be the end of this litigation.”

Cosentino alleged in his original complaint, filed in June 2016 in the 12th Judicial Circuit Court in Sarasota, that the County Commission had violated the county Comprehensive Plan in approving the road vacation.

This is a view of the vacated segment of North Beach Road, looking north, in early August 2018. File photo

At the time of the May 2016 vote, the Comprehensive Plan included language saying, “The County shall not vacate road segments on waterfronts along any creek, river, lake, bay or Gulf access point and shall encourage right-of-way use of these areas for coastal beach and bay access.” Later that year, in a revision of the entire Comprehensive Plan, that environmental policy was revised to give the board members more flexibility.

Cosentino also contended that a related Coastal Setback Variance petition, which the commissioners approved in conjunction with the road vacation, was directly tied to that vacation vote. That variance allowed North Beach Road property owners Dennis and Wendy Madden to tear down 12 decades-old structures and construct a six-unit condominium complex that complies with all modern building standards. A small portion of the new construction would be a few feet seaward of the county’s Gulf Beach Setback line, which was established in 1979 to protect landward property from storm surge and other flooding events. That was why the Maddens needed the variance.

County photos included in a 2013 report issued bye Taylor Engineering of Jacksonville show the condition of North Beach Road in October 2005. In requesting the road vacation 11 years later, an attorney representing three sets of  property owners talked of how the road had been closed to traffic since 1993 because of repeated storm damage. Image courtesy Sarasota County

In his 2016 complaint, Cosentino formally alleged that the County Commission violated Chapter 163.3161 of the Florida Statutes, which is called the Community Planning Act. Section 6 of that law says, “It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act.”

During his Sept. 28 report to the commissioners, Elbrecht also noted that the Second District Court of Appeal decision meant that two county Charter amendments that Cosentino wrote, which won voter approval in November 2018, had been found “invalid and unenforceable,” as declared by Circuit Judge Hunter Carroll.

One forbade the County Commission from vacating roads with even so much as a view of the water.

The second one called for the board members to rescind their vacation of the North Beach Road segment or to try to reacquire the affected section.

These are the Cosentino Charter amendments that passed on Nov. 6, 2018. Image courtesy Sarasota County

Oral arguments in the case were conducted before the three-judge panel on April 13. Appeal Court Judge Susan H. Rothstein-Youakim wrote the June 11 opinion. Although she found one of Cosentino’s arguments to have merit, she noted that the panel had concluded that it had no bearing on the litigation.

That argument pertained to the county’s formal publication of the notice of the road vacation after the action was completed. A survey necessary to determine the legal description of a 5-foot public path to the shoreline, perpendicular to North Beach Road, took extra time, Assistant County Attorney David Pearce explained to the Appeal Court panel. That was why the publication of the notice was delayed.

The additional public trail to the beach was a late proffer of the three sets of property owners who had petitioned for the road vacation. It was a facet of commission discussion near the end of the May 11, 2016 public hearing.

Mike Cosentino addresses the county commissioners on March 11, 2020. File image

In responding to a Sarasota News Leader request for comments following the June ruling by the Second District Court of Appeal, Cosentino wrote that if the court denied his motion for rehearing, he then would ask the court to certify, to the Supreme Court, questions that he had raised regarding specific sections of state law that he contends are applicable to his case, as well as case law that he believes to be relevant.

He indicated in his emailed statement to the News Leader that the Appeal Court’s acceptance of the county’s position on those aspects of the case “eliminates comprehensive planning challenges statewide,” which makes it “a matter of great public importance.”

As of this writing, the Second District Court of Appeal docket showed no indication of Cosentino’s taking the action he said he planned. However, a News Leader review of details contained in the Pro Se Handbook provided by The Appellate Practice Section of The Florida Bar found that plaintiffs generally have 30 days after a ruling in which to file an appeal.

Pro se refers to an individual representing himself in litigation, instead of hiring an attorney to handle the legal issues. Cosentino was acting on a pro se basis in the latter stages of the case before the Second District Court of Appeal.