Siesta Key couple argues that in seeking to reverse the vacation of part of North Beach Road, Michael Cosentino has employed an incorrect interpretation of state law

April 5 hearing set on Dennis and Wendy Maddens’ motion for partial summary judgment; couple also asking court to invalidate citizen signatures on petitions for Cosentino’s proposed County Charter amendments

Judge Frederick P. Mercurio. Image from the 12th Judicial Circuit Court website

An April 5 hearing has been set in the 12th Judicial Circuit Court in Sarasota on Siesta Key property owners’ motion for partial summary judgment in the case involving the Sarasota County Commission’s May 11, 2016 vacation of a 357-foot-long segment of North Beach Road.

Judge Frederick Mercurio has set the hearing for 10:30 a.m., reserving the courtroom for 30 minutes.

Dennis and Wendy Madden, who own property at 89 Beach Road and 84 Avenida Veniccia, argue that Siesta Key resident Michael Cosentino incorrectly has claimed that the road vacation was a development order linked to new construction they have planned on North Beach Road; therefore, they say the road vacation cannot be challenged because of provisions in state law.

The couple also is continuing to pursue a counterclaim against Cosentino, seeking a judge’s order of a permanent injunction to stop him and supporters of a nonprofit he helped establish — Reopen Beach Road — from seeking citizens’ signatures on petitions for two Sarasota County Charter amendments. One amendment would reverse the May 11, 2016 road vacation, while the other would prevent such future board action.

The Maddens not only contend that Cosentino and his supporters have employed “false information and deceptive advertising” in their endeavor, but they also are asking the court to declare invalid all the signatures obtained thus far on those proposed amendments.

In June 2016, Cosentino brought suit against Sarasota County over the North Beach Road vacation, arguing that the board’s 4-1 vote was a violation of a policy in the county’s Comprehensive Plan prohibiting such action regarding a roadway adjacent to the water.

Conversely, the attorney for the petitioners seeking the road vacation — Charles Bailey III of the Williams Parker firm — contended to the County Commission that because the petitioners own lots seaward of North Beach Road, the policy was not applicable to that situation.

The policy in effect on May 11, 2016 said, “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.” During the county’s updating of its Comprehensive Plan in 2016, the policy was modified so it would be less restrictive. The new one says, “The County should not vacate road segments or access points on waterfronts along any beach, bay, creek, river, or lake, and should encourage public right-of way use of these areas for public shoreline and water access.”

This house owned by the Maddens on North Beach Road, which has rental units, is slated to be torn down. File photo

The Maddens filed as intervenors in the case last year. Along with the road vacation, the County Commission on May 11, 2016 approved a Coastal Setback Variance, allowing the couple to combine the property of the vacated road with parcels they already owned seaward and landward of that part of North Beach Road to give them enough land — as required under the Zoning Code — so they could construct six new dwelling units in place of 12 old structures that do not comply with current state and local building codes.

Facets of the summary judgment motion

In a Jan. 25 filing, the Maddens point out, “Summary judgment is proper where there is no genuine issue on any material fact and the moving party is entitled to a judgment as a matter of law.” Citing a 1965 Florida Supreme Court case, the Maddens indicate that only the production of “counterevidence sufficient to reveal a genuine issue of material fact” would prevent a summary judgment order.

In making their case, the Maddens contend that Cosentino has been wrong in saying that the County Commission’s approval of the resolution vacating part of North Beach Road was a development order necessitating compliance with the Comprehensive Plan. Assistant County Attorney David Pearce has made the same argument in the county’s response to Cosentino’s second amended complaint in the case, filed on Feb. 3.

The Maddens and Pearce both point to Section 163.3215 of the Florida Statutes, which defines a development order as “any order granting, denying, or granting with conditions for a development permit.” State law, they continue, defines a development permit as “any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.”

A graphic from the Sarasota County Property Appraiser’s Office shows the Maddens’ property (in red) between Beach Road and Avenida Veneccia. Image courtesy Sarasota County

Moreover, the Maddens’ motion says, “The remedy provided in [the Florida statute] applies only to aggrieved or adversely affected persons to overturn local development orders inconsistent with a comprehensive plan. Cosentino does not state a cause of action and can never state a cause of action challenging [the resolution for the road vacation] because Resolution No. 2016-079 is not a development order as defined in the Florida Statutes.”

Further, the Maddens point out that in the county’s Motion to Dismiss Cosentino’s first amended complaint last year, the county argued that, under common law, “the dedication of roads to the public meant that property owners on either side of the road held title to the centerline, but that their property within the right-of-way was subject to an easement for public use,” citing a 1915 Florida Supreme Court case. “The Maddens adopt the County’s correct statement of the law,” their motion for partial summary judgment says.

The Maddens also point out that the May 11, 2016 resolution for the road vacation included “the conveyance and recording of a public access easement across the 60-foot right of way …”

In his March 2 motion, Pearce wrote that the board’s road vacation “is the termination of rights to land.” Contrary to an argument Cosentino employed in his second amended complaint, Pearce also wrote that the County Commission “could have vacated the road without approving the coastal setback variance.”

The Maddens cite several other judicial precedents regarding public roads and street vacations to bolster their argument, plus a 1978 opinion of the Florida attorney general.

The Maddens’ motion also argues that, among the undisputed facts in the case are the following:

  • Beach Road is a public roadway on Siesta Key.
  • The Maddens and three other sets of property owners hold title to parcels on the east and west side of the segment of North Beach Road that was vacated.
  • The portion of the road that was vacated “was a platted easement for a roadway in the plat of Mira Mar Beach Subdivision,” which was recorded in the county.

Further arguments

A legal sketch shows the road segment vacated by Sarasota County. Image courtesy Sarasota County

On March 7, the Maddens filed their answer and defenses to Cosentino’s second amended complaint. In that, they argue that Cosentino lacks standing to bring suit in the matter, pointing again to the Florida Statutes. Subsection 163.3215(2) defines an “aggrieved or adversely affected party” as one who “will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan. … The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons [emphasis added by the Maddens].”

In their response, the Maddens say, “Cosentino has not and cannot demonstrate a specific injury or adverse effect to a protected interest exceeding in degree an injury shared by all citizens of Sarasota County.”

Assistant County Attorney Pearce used a similar argument in the county’s response to Cosentino’s second amended complaint.

Cosentino contends that his purchase of property last year at 10 Beach Road gives him greater standing to bring his suit against the county.

“Absent his ownership of the [10 Beach Road parcel], an interest he obtained after filing his lawsuit,” Pearce wrote, Cosentino’s “interests do not differ from any other member of the public that have used Beach Road for vehicular traffic. Owning land on Siesta Key is not enough.”

Moreover, the Maddens argue that Cosentino is wrong in alleging that the County Commission resolution granting their Coastal Setback Variance “approves private development inconsistent with the Comprehensive Plan. To the contrary,” they continue, it “approves private development to replace three non-conforming lots with one conforming lot, five non-conforming structures with one conforming structure and twelve non-conforming dwelling units with six conforming dwelling units.”

As for their counterclaim, it contends that the action of Cosentino and Reopen Beach Road in regard to the proposed County Charter amendments violates state law “by indicating that voting for [one of the amendments] is necessary to allow public access on the land” the County Commission vacated and “‘hides the ball’” by indicating that voting for the amendment will reopen Beach Road for vehicular use.

Michael Cosentino has been installing holiday-related decorations on his property at 10 Beach Road. On March 17, a cloverleaf is a symbol of St. Patrick’s Day. Photo courtesy of Mike Cosentino

They point to a Florida Supreme Court ruling, codified in state law, requiring “that voters must be told, in clear and unambiguous language, what the primary effect will be if a proposed Charter amendment is adopted. The Florida Supreme Court repeatedly has instructed that proposed amendments ‘cannot fly under false colors,’ and that ballot questions cannot ‘hide the ball’ to obtain necessary voter approval.”

The vacated road segment was closed to vehicular traffic in 1993 because of repeated storm damage, making it unsafe for drivers, county staff and commissioners have said.

“In essence,” the counterclaim says, “the Maddens will be deprived of a lawful use of their property if Cosentino and Reopen Beach Road are successful in using false information and deceptive advertising to obtain two charter amendments reversing the decisions of the Board of County Commissioners contained [in the May 11, 2016 resolutions].”