By Rachel Brown Hackney, SarasotaNewsLeader.com
Almost exactly five years after he filed suit against Sarasota County over its vacation of a 373-foot-long segment of North Beach Road, Siesta Key resident Michael Cosentino lost his case in a unanimous ruling by a three-judge panel of Florida’s Second District Court of Appeal.
In a June 11 opinion, Judge Susan H. Rothstein-Youakim wrote that the court found all of the arguments that Cosentino and his nonprofit organization, Reopen Beach Road, put forth to be meritless, except for one. That regarded the timing of the formal notice the county published about the road vacation. Nonetheless, she pointed out, “The record indisputably establishes that Cosentino has been afforded ample opportunity to participate and be heard,” and he never made an allegation to the contrary.
Along with allowing the road vacation to stand, the ruling means that two Sarasota County Charter amendments that Cosentino wrote are invalid. They won passage during the November 2018 General Election.
In October 2018, 12th Judicial Circuit Court Judge Hunter Carroll issued the opinion in the county’s favor in regard to that portion of the case.
One amendment forbid the county from vacating any segment of road that had so much as a view of the water. The other called for the county to rescind the road vacation or to reacquire the vacated section of North Beach Road.
In his ruling, Carroll wrote, “In considering a legal challenge to charter amendments such as these, courts presume the amendments to be valid and reasonably construe them to be valid, if possible. If, however, an amendment is unconstitutional, courts must strike the offending amendment even though it means the will of the majority of the electors who voted on the issue cannot be carried out. That is the situation here.”
During April 13 oral arguments, Cosentino admitted to the Second District Court of Appeal judges “I knew that [the amendments] were unconstitutional when I wrote them.”
He has said he saw them as an alternative means of achieving his goal of reopening all of North Beach Road to traffic, along with preventing a similar road vacation in the future.
Asked to comment on Court of Appeal opinion, Cosentino wrote “In short, the rulings are just too devastating to Florida’s future and the Community Planning Act for me to stop. … Florida’s Supreme Court has always been the goal.”
In his complaint, Cosentino formally alleged that the Sarasota County Commission violated Chapter 163.3161 of the Florida Statutes, which is called the Community Planning Act. Section 6 of that law says “It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act.”
When Cosentino filed his original suit against the county in June 2016, he contended that the commission had violated a provision of the county’s Comprehensive Plan. Environmental Policy 1.1.13 said at that time “The County shall not vacate road segments on waterfronts along any creek, river, lake, bay or Gulf access point and shall encourage right-of-way use of these areas for coastal beach and bay access.”
“Simply put,” he added in his statement about the June 11 decision, “there is no legal basis in law or fact that would allow any court to rule against me and the people of Sarasota.”
What are Cosentino’s chances of reaching Florida’s highest court?
Morgan Bentley, principal of Bentley Law in Sarasota, said that in 99% of cases a state court of appeal is the court of last resort.
The Supreme Court, Bentley added, hears death penalty cases and those involving challenges to municipal bonds. The high court also will consider hearing those involving an “issue of great public importance,” Bentley noted, and it will take cases involving matters on which state courts of appeal have provided differing opinions.
“It’s a really narrow path,” he said, to persuade the high court to take on a case.
In a June 11 memo to the County Commission, announcing the Court of Appeal decision, County Attorney Frederick J. Elbrecht concurred with Bentley: “[T]he Florida Supreme Court’s jurisdiction is limited to a narrow set of circumstances and it is unlikely that the Florida Supreme Court would accept jurisdiction [in this case].”
A wish to drive the entire road
M. Lewis Hall of the Williams Parker firm in Sarasota represented intevenors Dennis and Wendy Madden in the case. They were among the three sets of North Beach Road property owners who petitioned the County Commission for the road vacation.
Hall wrote, “Remember, the public has continuing access to the vacated portion of Beach Road through an easement given by the Maddens to the public with access to the Gulf waters. This case was only about Mr. Cosentino’s desire to drive on the vacated portion of Beach Road, nothing more.”
During the oral arguments, Court of Appeal Judge Matthew C. Lucas asked about the fact that the affected segment of North Beach Road had been closed to traffic for decades because of repeated storm damage.
Cosentino responded, “I drove down that road consistently despite the fact that there were ‘Road Closed’ signs there.”
Cosentino has contended that the County Commission years ago could have approved a shore-stabilizing feature, such as a step revetment system, which would have enabled the county to reopen the road.
In a May 24, 2016 appearance before the County Commission, during the open comment period, Cosentino said “Every day, when I’d get home from work, I would take that little slow roll down that beach and just feel my heart rate come down and my blood pressure go down. It was an amazing thing.”