Siesta resident says judge’s ruling in North Beach Road case clears the way for his petition drive to overturn County Commission action

| May 1, 2017

By Rachel Brown Hackney
SarasotaNewsLeader.com

A 12th Judicial Circuit Court judge’s ruling in favor of North Beach Road property owners actually will help the fight to overturn the Sarasota County Commission’s decision to vacate a 357-foot-long segment of the road, Siesta Key resident Michael Cosentino told SNL.

Late on the afternoon of April 12, Judge Frederick Mercurio granted the motion of Dennis and Wendy Madden for partial summary judgment in the case Cosentino filed against Sarasota County in June 2016, arguing that the County Commission violated a section of the county’s Comprehensive Plan in its 4-1 vote on May 11, 2016.

The ruling came exactly a week after a 42-minute hearing on the Maddens’ motion. The point around which the order pivots is whether the County Commission action constituted a development order under the guidelines of the Florida Statutes.

Cosentino has argued that the Maddens sought the road vacation so they could combine the 8,265 square feet of property with other parcels they own — landward and seaward of the road — so they could comply with the county Zoning Code in a plan to erect six new dwelling units. Their goal, the Maddens’ attorney — Charles Bailey III of the Williams Parker firm in Sarasota told the County Commission — was to tear down 12 old structures that do not comply with current state and local building code standards.

The Maddens were among three sets of petitioners seeking the road vacation. They also sought a Coastal Setback Variance, so they could undertake the new construction. The commission approved that variance, as well, on May 11, 2016; again, the vote was 4-1, with then-Commissioner Christine Robinson in the minority.

With the ruling, Cosentino told SNL in an April 17 telephone interview, Mercurio “did us a solid favor.”

Cosentino attorney Elizabeth A. Gomez-Mayo added in an emailed statement, “I'd say the order is good news for our petitions, which focus on regaining the public's right to the roadway as it was dedicated 100 years ago. One of the arguments [the defendants] would try to make against [her emphasis] our petitions is that Resolution 2016-079 (street vacation) was a development order. Now, we have this hurdle behind us. We will, of course, still seek to challenge the development allowed by the resolutions, and we still have multiple avenues for fighting the street vacation, but will take this chance to redouble our efforts to have every voter registered in Sarasota County sign petitions 4.2 and 4.1.”

Cosentino pointed out that state law forbids a county charter amendment from calling for a development order.

Last summer, in conjunction with filing his Circuit Court complaint, Cosentino began an initiative to put two Sarasota County Charter amendments on the ballot. Amendment 4.1 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 rights 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.”

Amendment 4.2 would rescind the abandonment of, or have the county re-acquire, the section of North Beach Road that the commissioners voted in to turn over to the Maddens and the two other sets of petitioners.

On April 17, according to the Sarasota County Supervisor of Elections’ Office, the number of valid signatures on the proposed Amendment 4.1 is 1,563; on 4.2, it is 1,559. Cosentino needs 13,866 on each, Supervisor of Elections Office staff says.

“Now they can’t challenge our petitions, which is phenomenal,” Cosentino added on April 17.

However, the Maddens have argued in a counterclaim against Cosentino that he has violated state law by indicating that voting for the charter amendments is necessary for the public to maintain access to the vacated road segment and for motorists once again to be able to drive on it. The road has been closed to motorized vehicles since 1993, when repeated storm damage led the county to erect signage to that effect. However, the 2016 County Commission vote ensured the public could continue to use the road in perpetuity, except by means of motorized vehicles.

Regardless of Cosentino’s view of the judge’s decision, Dennis Madden called the ruling “very exciting” in a brief telephone interview with SNL on April 14. Madden later emailed a written statement: “We are happy to hear the news that the Court upheld the Commissioners’ authority and decision as to what is best for the environment, the neighborhood the local community and the County. The Judge obviously spent time researching and understanding the real facts about the case.”

Asked whether he plans to appeal Mercurio’s decision, Cosentino said he and his attorneys were reviewing it, “and we will act accordingly.”

Along with Gomez-Mayo, Cosentino is represented by Ralf Brookes of Cape Coral, who filed the original complaint against the county last year.

Details of the judge’s order

In his April 12 ruling, Mercurio explains Florida Statute 163.3164’s definitions of a development order and then writes that the County Commission’s decision to vacate Beach Road is “the termination of rights to land. The County could have vacated the road without approving the coastal setback variance. Thus, vacating the road is an independent decision and not dependent upon the coastal setback variance.”

Lewis Hall III of the Williams Parker firm — who is representing the Maddens — argued on April 5 that the County Commission’s decision was predicated upon a financial decision: The cost of continuing to maintain the damaged road “outweighed any benefit to the county …”

However, Brookes said the road vacation petition and the Coastal Setback Variance petition — “were hopelessly intertwined” and that County Attorney Stephen DeMarsh had to remind the commissioners that they could not grant the variance unless they approved the road vacation beforehand.

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