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Mike Cosentino’s proposed Charter amendments to be on Nov. 6 ballot, though county attorney warns of potential legal concerns if they win approval

By Rachel Brown Hackney
SarasotaNewsLeader.com

It took almost an hour and 50 minutes on Aug. 29 for the Sarasota County Commission to vote unanimously to put on the Nov. 6 General Election ballot two proposed amendments to the Sarasota County Charter that emanated from the board’s May 2016 vacation of a segment of North Beach Road.

Siesta Key resident Mike Cosentino — who has been engaged in a lawsuit with the county over that road vacation for the past two years — argued not only that the Office of the County Attorney had illegally rewritten his proposed amendments in its preparation of the ordinance containing the ballot questions, but Cosentino also contended that the commissioners should give him 20 minutes for a presentation on each of the proposed amendments, for a total of 40 minutes.

Under the County Commission’s rules of procedure, a person petitioning the board for action generally has 20 minutes to discuss the merits of the issue and then 5 minutes for rebuttal after public comments have been taken. On Aug. 29, the board members ultimately agreed to give Cosentino about 25 minutes for his presentation, with Vice Chair Charles Hines — who was presiding during the hearing — admonishing Cosentino not to repeat the history of the lawsuit in addressing the second proposed amendment, as Cosentino had in discussing the first one.

Chair Nancy Detert left just before the hearing began; Hines offered no excuse for her departure.

At the outset, County Attorney Stephen DeMarsh explained the action he took regarding the ordinance the board needed to approve to put the measures on the Nov. 6 ballot. The language in Section 2 of the ordinance “is exactly what was contained on the petitions,” DeMarsh said.

DeMarsh was referring to the petition drive that Cosentino and his supporters undertook to win the necessary number of signatures of registered county voters to meet the 5% threshold outlined in the Sarasota County Charter for citizen-initiated amendments to the Charter.

Then DeMarsh explained that the state requires a ballot question to be no longer than 75 words and to state the chief purpose of the proposed amendment.

If these amendments were approved, DeMarsh added, the language Cosentino had used on the petitions would be added to the Charter.

Delving into the details

When Hines asked DeMarsh to discuss potential legal concerns about the ballot measures, DeMarsh said that, in the county Charter, “limitations on the board’s authority are legally possible. Among them, for example, he continued, is the fact that the commission cannot issue bonds exceeding a certain amount. “But it’s not an absolute prohibition,” he said, as, through a referendum, the board can gain voter approval to issue debt above that level.

Cosentino’s proposed amendments contain prohibitions, DeMarsh said, but no means is provided for the board to work around those prohibitions.

In that context, DeMarsh said, “you could have a number of practical concerns” and, potentially, legal concerns.

Proposed Charter Amendment 3.9 says, “Siesta Key Beach Road as Public Right of Way. The County shall rescind the vacation of, or re-acquire, Beach Road on Siesta Key as it existed on January 1, 2016, and shall not vacate or sell this County-owned road segment(s) or right of way. The County shall provide maximum right of way use of Beach Road for public access, including vehicular use and viewing of waterfront vistas. The County shall make Beach Road accessible to mobility impaired persons.”

Proposed Charter Amendment 3.10 says, “Preserve County-Owned Parks, Preserves, Beach and Water Access and Waterfront Vistas. 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. Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”

“If one is required to reacquire the Beach Road right of way,” DeMarsh pointed out, “and then improve it as a public road,” the owners of private property abutting the road would have to be willing to give up their title to it. If they refused, he continued, “or placed such a high cost on that, then the County Commission would be in a very difficult position.”

He added, “If the board is mandated to pay whatever the cost of reacquiring and reconstructing a road, the board’s decision-making authority and discretion over its budget is limited in a way that could be subject to legal challenge.”

Proposed Amendment 3.10, DeMarsh continued, would restrict the board’s ability to convey real property, as provided for in the Florida Statutes. For example, DeMarsh said, if the board wanted to sell part of a park, “it would be flatly prohibited from doing so under this language.” Furthermore, he noted, language restricting the vacation of roads “may be inconsistent with state laws,” and the terminology in that proposed amendment “could be difficult to apply.” He pointed to “waterfront vista” as an example of that concern.

During the hearing, when Hines told Cosentino that passage of that amendment would prevent the board from being able to sell part of Nathan Benderson Park to Mote Marine, which wants to build a $130-million aquarium on the site, Cosentino suggested leasing the property to Mote, which has a lease for its City Island site with the City of Sarasota.

After DeMarsh concluded his comments, Hines told DeMarsh, “You’ve pointed out a lot of potential issues that may need to be considered should [these amendments pass].”

Nonetheless, Hines said, the board’s role that day was “to vote to put [the amendments] on the ballot.”

At the conclusion of the hearing, Commissioner Michael Moran made the motion to approve placing the proposed amendments on the Nov. 6 ballot. Commissioner Paul Caragiulo seconded the motion. With no further comments from the board, the motion passed 4-0.