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Emphasizing concerns on Cosentino’s Amendments

By Rachel Brown Hackney

On Dec. 11 Sarasota County Attorney Stephen DeMarsh discussed the following item with the County Commissioners.

The item asked for establishment of a time and place for a public hearing on a petition for the county to vacate part of its interest in an 84,171.45-square-foot portion of Hardee Drive in Venice. Commissioner Hines had pulled the item from the Consent Agenda even before attorney Steve Rees of the Icard Merrill firm in Sarasota addressed the commissioners about it during the Open to the Public portion of the Dec. 11 meeting.

Hines questioned Rees, who is the agent for the petitioners, about whether the road segment could be considered to have a “waterfront vista.”

Hines referenced the Cosentino Charter amendment that won support of 72.7% of the voters who cast ballots on it in the Nov. 6 General Election. That amendment 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 right 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. Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”

Rees showed the board the applicable section of the 1926 Venice Farms plat, which depicted the area without a body of water visible in current aerial maps. After Interstate 75 was constructed through the area, Rees explained, subsequent aerial views show the water. “It is a completely manmade water body.” If his clients wanted to do so, Rees added, they “could put a hose in there and drain the entire [borrow] pit.”

His position, Rees said, is that the Cosentino Charter amendment “does not apply in this situation [of the requested street vacation].”

Hines indicated that he believes the argument could be made that it does.

“We do want to implement the wishes of the people,” Chair Nancy Detert said of the Cosentino amendment. “I think we understand the spirit of what it is they were trying to accomplish,” she added of the amendment’s supporters. “But I think we need to do everything we can to protect ourselves from potential lawsuits. … It’s just fraught with alligators, frankly.”

“I agree with you on that,” DeMarsh told her.

The County Charter gives a citizen “the right to judicial relief” to enforce the Charter, he continued, “and so that’s the problem.”

“The commission can interpret the Charter language one way,” DeMarsh explained, and a citizen can interpret the language another way. In such cases, he said, the final decision on the correct interpretation comes via a court ruling.

During the discussion, DeMarsh referenced the fact that the county has been contesting the legality of both Cosentino’s Charter amendments.

The second amendment calls for the county to reacquire the section of North Beach Road that the commission vacated in May 2016 at the request of three sets of property owners. It also calls for the county to repair and reopen the road, which has been closed to motor vehicle traffic since 1993 because of repeated storm damage.

Cosentino filed suit against the county in June 2016, seeking to overturn the road vacation. Although he has lost his case in the 12th Judicial Circuit Court, he has appealed Circuit Judge Frederick Mercurio’s dismissal of the last part of the complaint to the Second District Court of Appeal.

If the board wanted the Office of the County Attorney (OCA) to continue to pursue its action on the Charter amendments in the 12th Judicial Circuit Court, DeMarsh said, then the OCA would do so.

A Nov. 15 memo from the OCA to the commission explains the ongoing litigation.

In Cosentino v. Sarasota County, the memo says, the Office of the County Attorney “filed a post-election challenge to the two charter amendments. … In Caflisch v. Sarasota County, the Plaintiffs sued Sarasota County alleging the two charter amendments are illegal. The County filed its answer which agreed the amendments violate state law and are unconstitutionally vague,” the memo continues.

“In each lawsuit,” the memo says, “the County alleges the two charter amendments are inconsistent with executive/administrative authority granted to the Board by statute to convey property, vacate roads, and make budgetary decisions. The County also alleged that the amendments are vague.”

A question about a timeline

As the county commissioners discussed Mike Cosentino’s county Charter amendments on Dec. 11, Commissioner Christian Ziegler asked when the measures became law.

“Upon passing,” County Attorney Stephen DeMarsh replied, though he clarified that the amendments would have been considered law after the election results were certified.

Then Ziegler asked whether the passage of the amendment regarding reacquisition of the vacated North Beach Road segment implied that a certain timeline must be followed.

It did not, DeMarsh told him.

When Ziegler asked whether, for example, the commission could wait five years to reacquire the road segment, DeMarsh responded, “If there were a lengthy period of time with no action, I presume that the citizen might be able to file an action, seeking a judicial relief requiring the board to take some action.”

“There’s that vagueness that’s in place [about the timeline], right?” Ziegler asked.

“I think that’s correct, yes,” DeMarsh replied.