At Cosentino’s request, Court of Appeal dismisses his appeal of Circuit Court’s September 2018 ruling in favor of Sarasota County in North Beach Road case
By Rachel Brown Hackney
At the request of Siesta Key resident Michael Cosentino, the Second District Court of Appeal has dismissed his appeal of a Circuit Court’s 2018 ruling in favor of Sarasota County in the North Beach Road vacation lawsuit.
Cosentino filed the original lawsuit in June 2016.
On Nov. 15, Cosentino’s attorney filed a motion pointing out that all the claims between Cosentino and Sarasota County “have not been resolved and continue to be litigated” in the 12th Judicial Circuit Court.
Therefore, his attorney, Tracy S. Carlin of the Brannock & Humphries firm in Tampa, requested in that motion that the Second District Court of Appeal determine whether the appeal should proceed or dismiss it “without prejudice,” meaning a new appeal could be filed at a later time.
In its Dec. 3 decision, three judges writing for the Court of Appeal ordered that the case be dismissed “for lack of appellate jurisdiction.”
In a statement to SNL, Cosentino wrote, “Now we have the opportunity to supplement the record with the county produced documents that prove the validity of our allegations.” He added that he believes this step moves him closer to ultimate victory over the county.
In early September, Cosentino filed a new motion in the North Beach Road case, essentially asking the Circuit Court to throw out his existing complaint and let him start all over with his litigation. He argued that materials he has obtained prove “a years long collaboration” between two sets of North Beach Road property owners and the Office of the County Attorney to achieve what he characterizes as the fraudulent manipulation of county staff reports related to potential repairs of North Beach Road.
The presiding judge had not ruled on Cosentino’s Sept. 11 motion by the deadline for this issue of Siesta Sand.
The Office of the County Attorney does not comment on pending litigation, county spokesmen have told SNL on multiple occasions.
As a result of the Court of Appeal ruling, oral arguments that had been scheduled for Dec. 19 were cancelled.
In her Nov. 15 motion, Cosentino attorney Carlin pointed out that the county has a crossclaim pending against Cosentino in Circuit Court, and the trial judge has determined that that “is inextricably intertwined with the claims at issue in this appeal.”
“Thus,” she continued, “because there is no finality between Cosentino and the County, and Cosentino’s claims are not appealable [under the Florida Rules of Judicial Procedure], this Court lacks jurisdiction.”
Carlin added, “[I]f an appeal is still necessary after all the claims between the County and Cosentino are resolved … this Court will have jurisdiction to hear it at that time.”
History of the litigation
Cosentino’s original lawsuit focused on the County Commission’s May 11, 2016 vacation of a 373-foot-long section of North Beach Road. Three sets of property owners along that segment had petitioned for the action, pointing out that the road had been damaged repeatedly over the years by storms and that the county had closed that section to traffic in 1993 because it was unsafe for vehicles.
Cosentino argued that the commission had violated a policy in the county’s Comprehensive Plan, which prohibited the vacation of any road segments along the water. However, only then-Commissioner Christine Robinson — citing that policy — opposed the property owners’ petition.
Subsequently, Cosentino established a nonprofit organization called Reopen Beach Road and began collecting signatures of registered county voters on petitions for two proposed Sarasota County Charter amendments related to the North Beach Road issue. He wrote the amendments, he said, as a supplemental means of trying to achieve the goals of his litigation.
The first amendment called for the county to rescind the North Beach Road vacation or reacquire the affected part of the road. The second prohibited the County Commission from vacating any road segment with so much as a waterfront vista. Both won voter approval during the Nov. 6, 2018 General Election.
However, even before the election, one set of the original groups of petitioners for the road vacation filed suit, claiming that the amendments contravened state law in terms of the powers accorded to local government boards. The county also launched an effort to have the amendments declared void.
On Oct. 28, Circuit Judge Hunter Carroll ruled that Amendment 3.9 — regarding the directive for the county to rescind the road vacation — “is contrary to Sarasota’s Charter and is therefore invalid.” He also ruled that the first sentence of Amendment 3.10 — regarding future vacation petitions — violates the Florida Statutes. However, he ruled that the second sentence of Amendment 3.10 is “an encouragement to maximize rights-of-way use for public access and viewing waterfront vistas, while the third sentence “requires these areas to be made accessible to mobility-impaired persons whenever feasible.”
Thus, Carroll wrote, the first sentence could be severed from the rest of the text and the remainder of the amendment could stand.
The county’s position on the appeal
In the county’s Nov. 25 response to Cosentino’s efforts to have the appeal dismissed, Assistant County Attorney David Pearce pointed out that the appeal “involves the trial court’s order granting partial final judgment which disposed of all pending claims against Sarasota County.”
The only portion remaining of the North Beach Road case involves one of the sets of property owners, who were allowed to intervene in the litigation.
Pearce argued that the Court of Appeal had jurisdiction “because the trial court’s [Sept. 11, 2018] order disposed of Cosentino’s existing claims as to the County.”
He did acknowledge, though, that the day after the trial court judge granted that final judgment for the county, intervenors in the original lawsuit “dragged the County back into the case” through an amended counterclaim and third-party complaint.