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North Beach Road, Siesta Key

Cosentino asks court to let him essentially start all over in North Beach Road case because of evidence he has discovered

By Rachel Brown Hackney
SarasotaNewsLeader.com

Siesta Key resident Mike Cosentino has filed a new motion, asking the 12th Judicial Circuit Court to essentially throw out earlier judgments against him and let him start all over with his allegations regarding the May 11, 2016 County Commission vote to vacate a 373-foot-long segment of North Beach Road.

Cosentino is asking the Circuit Court to vacate the final order Circuit Judge Frederick P. Mercurio issued on Sept. 11, 2018, dismissing the last of Cosentino’s complaint against Sarasota County in the original North Beach Road case.

In October 2018, Cosentino filed an appeal of Mercurio’s order with the Second District Court of Appeal. SNL checked on Oct. 18 found that the Appeal Court had set the date of Dec. 19 for oral arguments in the case in Tampa.

Having won Circuit Court Judge Andrea McHugh’s approval to represent himself in the North Beach Road case — known as acting pro se — Cosentino wrote in his Sept. 11 motion that his basis for his new action is Rule 1.540(B)(3) of the Florida Rules of Civil Procedure. That rule says a court can vacate a final summary judgment order “on the grounds of fraud, misrepresentation, misconduct of an adverse party, and fraud upon the Court,” he pointed out in the motion.

Cosentino raises an allegation that he made to the County Commission during an Open to the Public period during the board’s regular meeting on Aug. 27.

The motion argues that the commission’s votes on May 11, 2016 to vacate part of North Beach Road and to approve a Coastal Setback Variance — which was sought by one set of petitioners for the road vacation — “resulted directly from years of misconduct by Sarasota County Attorneys, who assisted [two sets of the road vacation petitioners] in their fraudulent misrepresentations of law and fact …”

The street vacation enabled one set of North Beach Road property owners to assert “unity of title” of parcels seaward and landward of the road, plus the vacated road segment’s square footage, to win county zoning approval for the construction of six new condominiums on North Beach Road.

During one of the May 11, 2016 public hearings, the County Commission granted a Coastal Setback Variance to allow the new construction to extend 67.2 feet seaward of the Gulf Beach Setback Line (GBSL). That figurative line was established to protect dune habitat, which, in turn, protects inland structures from storm surge and other flooding events.

Charles D. Bailey III of the Williams Parker law firm in Sarasota explained that the section of the development that would be the furthest west of the GBSL actually would be a retaining wall already on the property.

(The new condominiums were planned to replace existing units that dated back decades. A staff document provided to the board before the meeting explained, “A prior owner developed [the property at] 89 Beach Road between 1935 and 1940 with seven living units in three non-conforming slab-on-grade buildings. [The structures later were modified to contain 12 units.] Two buildings are two-story, and one is one story.” Additionally, the document said, “There is no significant native dune habitat existing on any areas proposed for development.” The staff memo also noted, “The seaward extent of the proposed residential construction is 4.4 [feet] more seaward than the existing buildings …”)

In his Sept. 11 motion to vacate Judge Mercurio’s 2018 final order, Cosentino alleges that the county attorney worked in “a years long collaboration [his emphasis]” with two sets of North Beach Road property owners. One goal, Cosentino contends, was to achieve what he characterizes as the fraudulent manipulation of county staff reports related to potential repairs of North Beach Road.

A 2013 engineering analysis of the segment of North Beach Road that the commission vacated in 2016 included multiple photos of damage storms had inflicted upon the road over decades. The report, produced by Taylor Engineering of Jacksonville, offered options for repairing the affected portion of the road. Ultimately, the commission chose not to pursue any of them. At that time, the county was continuing to deal with the repercussions of the Great Recession. In the 2013 fiscal year, the county received $108.8 million from property tax revenue, compared to $175.7 million in the 2008 fiscal year, before the economic downturn began.

Since the summer of 2016, Cosentino has referred to recommendations in the 2013 Taylor Engineering report. He has remained adamant that the County Commission could have stabilized the road for less money than maintenance of the road — with the expectation of continuing damage — would have cost.

He cites that report again in the new motion.

Cosentino further points to a Nov. 26, 2012 letter from attorney Bailey to then-County Administrator Randall Reid — as Cosentino also has done consistently over the past three years. Cosentino maintains that the owners of the 89 Beach Road parcel wanted to have part of North Beach Road vacated instead of seeing the county repair it.

On Dec. 20, 2012, Reid wrote Bailey, “The ultimate goal is to provide future protection to the coast line in this area [emphasis provided],” Cosentino says in his motion.

The goal of the property owners, Cosentino contends, “was to turn their road front properties into beach front properties by having Beach Road vacated.”

However, no structures existed seaward of the road in front of 89 Beach Road at the time the road vacation petition was submitted to the county.

Cosentino further alleges that, following an August 2013 meeting involving the owners of 89 Beach Road, the county attorney and county staff, staff prepared an Oct. 23, 2013 report to the County Commission saying that staff’s recommendation was for Taylor’s “no-action alternative … based on project costs …”

In other words, according to Cosentino, staff advised the commission to refrain from pursuing any project that might stabilize the road and prevent future storm damage.