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Circuit Court judge rules that Reopen Beach Road can intervene in lawsuit related to two Sarasota County Charter amendments

By Rachel Brown Hackney
SarasotaNewsLeader.com

A 12th Judicial Circuit Court judge has ruled that the Siesta Key nonprofit Reopen Beach Road may intervene in a case focused on two Sarasota County Charter amendments.

Circuit Judge Maria Ruhl issued her order on Feb. 13, court records show.

Siesta Key property owners who have challenged the legality of the Charter amendments and the Office of the County Attorney had agreed that Reopen Beach Road should be a party to the case. Siesta Key resident Michael Cosentino — who established the Reopen Beach Road in June 2016 — wrote the Charter amendments, both of which are related to a May 2016 County Commission vacation of part of North Beach Road.

The amendments won voter approval on the Nov. 6, 2018 General Election ballot.

Attorney Ryan Reese of Moore, Bowman & Rix in Tampa, acting on behalf of plaintiff William H. Caflisch, and Assistant County Attorney David M. Pearce signed a stipulation filed with the Circuit Court on Feb. 6, saying that it was appropriate for Reopen Beach Road “to intervene in this matter …” They were joined in the stipulation by attorney Fred E. Moore of the Bradenton firm Blalock Walters, acting on behalf of Reopen Beach Road.

On Jan. 16, Reopen Beach Road had filed a motion, seeking to intervene in the case that Siesta property owners William and Sheila Caflisch initiated on Oct. 9, 2018. The Caflisches had sought to have the Sarasota County Charter amendments removed from the November 2018 ballot, but the court did not rule on the matter prior to the election. As a result, on Jan. 3, Caflisch attorney Reese filed a Motion for Judgment on the Pleadings, saying that the documents filed in the case “demonstrate no genuine dispute of material fact exists [between the Caflisches and Sarasota County].” Adding that the amendments “offend existing state law, in violation of [Florida Statute 125.01],” he wrote that the court should declare them “void ab initio,” meaning that the amendments were not valid from the time they were proposed. Statute 125.01 requires county law to be consistent with state law.

A Jan. 30 hearing on that motion for judgment was cancelled.

In a filing in a related case, Assistant County Attorney Pearce wrote, “The constitutionality of the charter amendments is a real issue and not an academic one.”

In that document, Pearce pointed out that the county had challenged the Charter amendments “because they are inconsistent with general law and vague. … [They] interfere with the express authority granted to the [County Commission] to sell and convey property, vacate roads, and make budgetary decisions, as envisioned by [sections of the Florida Statutes]. The County has also alleged the charter amendments are vague because they outline no standard of conduct,” Pearce added.

That document was filed with the court on Nov. 7, 2018, the day after voters approved the amendments.

Reopen Beach Road arguments

In a supplemental memorandum of law filed with the Circuit Court on Jan. 28, Reopen Beach Road pointed out that it “was the sponsor and driving force” behind Charter Amendments 3.9 and 3.10.

The former says the county must rescind the vacation of the 373-foot-long segment of North Beach Road that was approved on May 11, 2016, and then the county must re-acquire the right of way. The amendment also indicates the county should repair the road and keep it open to vehicular traffic.

Amendment 3.10 prohibits Sarasota County from vacating or selling any segment of road or right away abutting any area that could be considered to have a “waterfront vista.”

In June 2016, Cosentino filed suit against the county, arguing that the County Commission had violated the county’s Comprehensive Plan in vacating the portion of North Beach Road. Although Circuit Court Judge Frederick Mercurio dismissed all the counts against Sarasota County, Cosentino has appealed the final dismissal to the Second District Court of Appeal in Lakeland.

Cosentino’s attorney in that case — Lee Robert Rohe of Big Pine Key — asked that the Appeal Court delay until March 22 the filing of his initial brief with the court. On Jan. 28, the Appeal Court ordered that the initial brief “shall be served within 30 days of the date of this order.”

Cosentino lost an earlier appeal of one of Mercurio’s rulings in favor of the county.

The Caflisches were among the three sets of property owners who petitioned for the North Beach Road vacation in 2016, arguing that the segment had been closed to motor vehicles since 1993 because of repeated storm damage. Cosentino has contended the County Commission never should have approved the request because of the road segment’s value as public access to Siesta Beach. He cited a section of the county’s Comprehensive Plan in effect at that time to underscore his argument.

Objection to referral of case to a magistrate

On Feb. 4, Circuit Judge Ruhl also issued an order that referred the matter to Circuit Court Magistrate Deborah A. Bailey. That order authorized Bailey to conduct any hearings, which could include the “taking of evidence,” and then directed her to file a recommended order to Ruhl, “as soon as practicable.”

However, the order pointed out, “A referral to a Magistrate requires the consent of all parties.”

On Jan. 31, S. William Moore, another attorney for the Caflisches, had a letter hand-delivered to Ruhl, the court docket shows. Moore wrote that he and Sarasota County had no objection to her referral. However, “Counsel for proposed Intervenor Reopen Beach Road, Inc. … has notified us of its objection to the referral.”

On Feb. 13, Cosentino’s attorney, Rohe, did file a notice of objection.