Circuit Court rules against North Beach Road County Charter amendments

Rachel Brown Hackney
SarasotaNewsLeader.com

Just four months shy of the fourth anniversary of the initial case filing, a 12th Circuit Court judge has ended all of Siesta Key resident Michael Cosentino’s efforts to reverse the May 11, 2016 County Commission vacation of part of North Beach Road.

On the morning of Feb. 28, Circuit Judge Andrea McHugh granted a joint motion of Sarasota County and two sets of North Beach Road property owners. They had sought a final order that would end related litigation over two Sarasota County Charter amendments Cosentino wrote, which won voter approval on the November 2018 General Election ballot.

Circuit Judge Hunter Carroll ruled on Oct. 28, 2019 that one of the amendments violated the Florida Constitution. The first sentence of the second amendment, he continued, also was invalid for the same reason. Thus, he ruled against Cosentino. (McHugh was unable to preside over the hearing on those points because of a family emergency.)

In a Feb. 18 order, McHugh dismissed the last count in the lawsuit Cosentino filed in June 2016 related directly to the road vacation.

In her Feb. 28 ruling, McHugh wrote, “The Court finds that all claims have been adjudicated in this lawsuit. … [T]he Court will enter a final order, reserving jurisdiction to determine costs and attorney’s fees.”

McHugh had conducted a Feb. 18 hearing on the motion filed by the Office of the County Attorney, the Caflisch family and

Dennis and Wendy Madden. The Caflisches and Maddens comprised two of the three sets of North Beach Road property owners who had petitioned for the vacation of 373 feet of North Beach Road.

In her Feb. 28 ruling, McHugh noted that Cosentino and the nonprofit organization he founded in June 2016 — Reopen Beach Road — maintained that no final order could be issued in the Charter amendments part of the case because Judge Carroll had ruled that the constitutional portions of Amendment 3.10 could be preserved. “The flaw in this argument,” McHugh wrote, “is that neither Cosentino, nor Reopen Beach Road, have ever sought declaratory relief with respect to 3.10. There is no pending claim on which Cosentino or Reopen Beach Road, Inc., can proceed to request further [court] action on 3.10.”

She added, “For Cosentino or Reopen Beach Road, Inc. to bring a declaratory action regarding 3.10, the Court would have to permit them to amend their pleadings, nearly four years into the lawsuit, wherein an extraordinary amount of judicial labor has been exercised to dispose of multiple controversies between multiple parties.”

Further, McHugh continued, the county, the Maddens and the Caflisches filed their motion for final judgment in the case on Dec. 6, 2019. “Cosentino and Reopen Beach Road, Inc. had more than ninety days to file a motion to amend their complaint or a motion for clarification of [Carroll’s ruling] on 3.10, but none were filed, or pending before the Court,” when the Feb. 18 hearing was conducted.

“For the reasons above,” McHugh continued, “the Court finds the arguments opposing entry of final judgment unpersuasive.”

Charter Amendment 3.9 called for the county to rescind the road vacation or re-acquire the vacated segment.

Amendment 3.10 forbade the county from selling any county-owned property, including road segments or rights of way,

“along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista.” That was the portion Circuit Judge Carroll ruled to be in contravention of state law.

With the Charter amendments litigation underway, the County Commission in January 2019 indefinitely continued a public hearing on a road vacation petition regarding property in Venice. Commissioner Charles Hines, especially, cited concern that the segment could be said to have a water view.

Carroll characterized the remaining sentences of Amendment 3.10 as encouragement of good county policy. They called for the county to “encourage maximum right of way use for public access and viewing of waterfront vistas” and said that, “Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”

SNL was unable to get a comment from the Office of the County Attorney prior to the deadline for this issue of Siesta Sand.

Cosentino repeatedly has told the SNL that he believes he ultimately will prevail at the appellate level.

A claim of forces aligned against him

During a Jan. 28 hearing, Cosentino talked of plans to file a third amended complaint in the North Beach Road case. Since the summer of 2019, he has taken a number of opportunities — including an appearance before the County Commission — to accuse the Office of the County Attorney of colluding with the Caflisches and the Maddens to prevent the county from constructing a system that would stabilize the portion of North Beach Road the commission ended up vacating.

Charles D. Bailey III of the Williams Parker firm in Sarasota pointed out to the County Commission on May 11, 2016 that the segment at the heart of the vacation petition had been closed to motor vehicle traffic since 1993 because of repeated storm damage.

However, Cosentino has cited a statement written by former County Administrator Randall Reid, indicating Reid’s intent was to pursue one of the stabilization methods proposed by a Jacksonville engineering firm the county hired to assess the road damage in 2013. Taylor Engineering issued its report that fall. However, the County Commission took no action on any of the recommendations.

At that time, the board still was contending with a continuing decline in property tax revenue as a result of the Great Recession.

During a June 25, 2019 hearing before McHugh, Cosentino said, “I want to bring some things to light with respect to fraudulent misrepresentation of the law and facts” by the county and the attorneys for the Maddens and Caflisches.

His goal, Cosentino told McHugh on Jan. 28, was “making a record [of the issues in Circuit Court] and saving my money for the appeal.”