TWELFTH JUDICIAL CIRCUIT COURT

IN AND FOR SARASOTA COUNTY, FLORIDA

JOHN MICHAEL COSENTINO

Plaintiff,
Case No. 2016-CA-2929-NC
v.
Uniform Case No. 582016CA002929XXXANC
SARASOTA COUNTY, FLORIDA, Division: A
Defendant, Judge: Mercurio
And
WILLIAM H. CAFLISCH, SR, as
Trustee of the William Caflisch Declaration
Of Trust, SHEILA SANCHEZ CAFLISCH
As Trustee of the Sheila Caflisch Declaration
Of Trust,
Intervenors,
And
DENNIS W. MADDEN, WENDY
MADDEN, and WENDY W.
MADDEN as Trustee of the
Walther Family Trust dated 02/01/1996,
Intervenors.
____________________________________ /

DENNIS W. MADDEN, WENDY

MADDEN, and WENDY W.
MADDEN as Trustee of the
Walther Family Trust dated 02/01/1996,
Counter Plaintiffs/Third
Party Plaintiffs,
v.
REOPEN BEACH ROAD, INC., a
Florida Not For Profit Corporation,
Third Party Defendant.
_________________________________/

SECOND AMENDED COMPLAINT

PLAINTIFF JOHN MICHAEL COSENTINO by and through undersigned counsel
hereby files this Second Amended Complaint against DEFENDANT SARASOTA COUNTY,
FLORIDA, seeking declaratory and injunctive relief and a statutory de novo hearing applying
strict scrutiny review under Florida Statutes Section 163.3215 (Count I); for violations of notice
requirements contained in the Sarasota County Charter and Florida Statutes (Count II); and for
violation of his private right to use Beach Road for thoroughfare use as shown in Plat Book 2,
Page 130 & 130A Mira Mar Beach Subdivision as an owner of a lot within the subdivision plat
(Count III) and as grounds therefore states as follows:
GENERAL ALLEGATIONS

1. On May 11, 2016, the DEFENDANT SARASOTA COUNTY, FLORIDA, Board

of County Commissioners voted to adopt both Resolution 2016-79 (Exhibit A) and Resolution
2016-80 (Exhibit B) [hereinafter the 4-1 votes].

2. DEFENDANT, SARASOTA COUNTY, FLORIDA, could not adopt Resolution

2016-80 Gulf Beach Setback Line Variance without adopting Resolution 2016-79 Street
Vacation Petition that vacated the publics right to use for thoroughfare purposes a 22,073 sq. ft.
segment of Beach Road between Columbus Boulevard and Avenida Messina in Mira Mar Beach
Subdivision [hereinafter vacated segment of Beach Road]. 1

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All images herein are provided to visually orient the Court as to location.

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 3. The vacated segment of Beach Road consists of more than half of the last
remaining Gulf view public waterfront thoroughfare on Siesta Key, Sarasota, Florida.

4. The 4-1 votes approved the Street Vacation Petition SV 15-07 filed on May 21,
2015 (Exhibit C) [hereinafter Vacation Application] wherein applicants for the street vacation
are identified as follows: The Ramseys 1700 CR S, Bristol, IN, 45507; The Maddens 6468
Bridiewood Ct., Ada, MI, 49301; and The Caflisches 77 Beach Rd., Sarasota, FL, 34242
[hereinafter Applicants].

5. The Applicants sought the street vacation in order to permit development,

including increases in density and intensity of land use in the coastal high hazard area seaward of
the Gulf Beach Setback Line (GBSL) located within the geographic area subject to the
provisions of Chapter 54 Article XXII Section 54-721 through 54-729 (Sarasota County Coastal
Setback Code) and Chapter 74 (Sarasota County Land Development Regulations) of the Sarasota
County Code.

6. DEFENDANT SARASOTA COUNTY, FLORIDA established and identified the

Gulf Beach Setback Line (GBSL), the Coastal Construction Control Line (CCCL), and the

Kenneth R. Craig, P.E., North Beach Road Shoreline Protection Study, Siesta Key,
Sarasota County, Florida, October, 2013. Image is portion of Figure 13, Page 8 of Exhibit D.

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Barrier Island Pass Twenty-Year Hazard Line (PHL) as described in Chapter 54, Sarasota
County Code of Ordinance Chapter 54, Article XXII Section 54-721 through 54-729, (2010) and
Fla. Stat. 161.053 (1986) in the North Beach Road Shoreline Protection Study, Siesta Key,
Sarasota County, Florida, October, 2013, Taylor Engineering Report [Hereinafter Taylor
Engineering Report] (Exhibit D).

7. Immediately upon approving the Street Vacation Petition in Resolution 2016-79,

and at the same May 11, 2016 meeting, DEFENDANT, SARASOTA COUNTY, FLORIDA,
also approved INTERVENORS DENNIS W. MADDEN and WENDY W. MADDENs Gulf
Beach Setback Line Variance Application Petition 79-03-15-455 (Exhibit E) in Resolution 2016-
80.

8. Mira Mar Beach Subdivision Plat Book 2 Pages 130-130A expressly states that
Beach Road was dedicated to public use for thoroughfare purposes only, reserving all other
rights in 1926. (Exhibit F). Beach Road is and was used by the public for thoroughfare use,
and improved, paved, and maintained by DEFENDANT SARASOTA COUNTY, FLORIDA.

9. PLAINTIFF JOHN MICHAEL COSENTINO [hereinafter Cosentino] owns 10

Beach Road (Exhibit G) which is co-located within the Mira Mar Beach Subdivision, Plat Book
2, Page 130 & 130A. 10 Beach Road is 465 feet north of the vacated segment of Beach Road.

10 Beach Road, outlined in red, is owned by Cosentino

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 10. Cosentino also resides and owns real property on Siesta Key in Sarasota County,
Florida, and for many decades has used this Beach Road segment as a thoroughfare, for driving
his cars, and trucks on Beach Road.

11. Cosentino, as a member of the public, a resident of Sarasota County, and an

owner of real property on the same road located within the same subdivision plat at 10 Beach
Road has sufficient interests protected by the Comprehensive Plan and State law to have standing
in this matter, including his interest in Beach Road as a waterfront thoroughfare, and his interest
in the density and intensity of development within the same subdivision plat as an owner of a
near and proximate lot.

12. Cosentino is and will be adversely affected by approval of the Street Vacation and
Gulf Beach Setback Line Variance for private development in a manner inconsistent with the
Comprehensive Plan requirements for protection of waterfront road segments and limitations on
densities and intensities of use established by the Comprehensive Plan.

13. The 4-1 votes adversely affect Cosentinos ability to use Beach Road as a public
road, and his ability to enjoy Beach Road in the future, as a public thoroughfare for vehicles that
would be diminished, limited, impaired, or eliminated by the vacation of the segment of Beach
Road for thoroughfare use and by resulting in private development inconsistent with the
Comprehensive Plan.

14. Cosentino is a Sarasota property owner and full-time resident of Siesta Key,
Sarasota, Florida, who personally uses Beach Road, and would continue in the future to use and
personally enjoy Beach Road, were it not for the unlawful 4-1 votes.

COUNT I
DEFENDANT APPROVED DEVELOPMENT
INCONSISTENT WITH COMPREHENSIVE PLAN

15. Plaintiff incorporates by reference each allegation made in paragraphs 1-14 of this
Complaint as if asserted herein.

16. This is a statutory action against Defendant SARASOTA COUNTY pursuant to

163.3215, Fla. Stat., seeking de novo review of the development order and development permit

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which are not consistent with the duly-adopted Comprehensive Plan, applying the strict scrutiny
standard of review established by the Florida Supreme Court2.

17. Chapter 163, Part II, Florida Statutes, the Local Comprehensive Planning and
Land Development Regulation Act (now called the "Community Planning Act"), required each
local government in Florida to prepare and adopt a local comprehensive plan.

18. DEFENDANT, SARASOTA COUNTY, FLORIDA, adopted the operative

Comprehensive Plan Ordinance No. 2010-062, 2 (10-27-2010) [hereinafter Comprehensive
Plan] as codified in The Sarasota County Code of Ordinances Supplement 61 (April 26, 2016)
[hereinafter Sarasota County Code].

19. Section 163.3194(1)(a), Florida Statutes provides: After a comprehensive plan,

or element or portion thereof, has been adopted in conformity with this act, all development
undertaken by, and all actions taken in regard to development orders by, governmental
agencies in regard to land covered by such plan or element shall be consistent with such
plan or element as adopted. (emphasis added)

20. The Community Planning Act places the right and the burden for enforcement of
the requirement of consistency of development orders with duly-adopted Comprehensive Plans
on citizens through the citizen enforcement provision of 163.3215, Fla. Stat., which
provides:

Any aggrieved or adversely affected party may maintain a de novo

action for declaratory, injunctive, or other relief against any local

government to challenge any decision of such local government

granting or denying an application for, or to prevent such local

government from taking any action on, a development order, as defined

in s. 163.3164, which materially alters the use or density or intensity of

2
The Court must hold a de novo hearing and apply the heightened standard of review of strict scrutiny. Brevard
County v. Snyder 627 So.2d 469 (Fla. 1993); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4th DCA, 2001)
cert. denied 821 So.2d 300 (Fla. 2002).

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 use on a particular piece of property which is not consistent with the

comprehensive plan adopted under this part.

21. Cosentino is an aggrieved or adversely affected person as defined in

163.3215(2), Fla. Stat., who will suffer an adverse effect to his personal interests protected or
furthered by the Comprehensive Plan which exceeds in degree the general interest in community
good shared by all persons because Cosentino actually uses the subject area, including Beach
Road for driving his vehicle, owns property on 10 Beach Road less than 500 feet from the
subject property within the notice radius and within the same platted subdivision, on the same
road, and will be adversely affected by the approval of a development order and development
permit allowing an increase in density and intensity that is inconsistent with the duly adopted
Comprehensive Plan.

22. Cosentino has statutory standing to bring this action under 163.3215(3), Fla.
Stat., because of his personal use of and interest in the vacated portion of Beach Road which is
protected by the duly adopted Comprehensive Plan.

DEFENDANTS OFFICIAL ACTION HAS EFFECT OF PERMITTING DEVELOPMENT

23. Community Planning Act, Section 163.3194(3), Florida Statutes, provides:

(a) A development order or land development regulation shall be

consistent with the comprehensive plan if the land uses, densities or
intensities, and other aspects of development permitted by such order
or regulation are compatible with and further the objectives, policies,
land uses, and densities or intensities in the comprehensive plan and if
it meets all other criteria enumerated by the local government.

(b) A development approved or undertaken by a local government

shall be consistent with the comprehensive plan if the land uses,
densities or intensities, capacity or size, timing, and other aspects of
the development are compatible with and further the objectives,
policies, land uses, and densities or intensities in the
comprehensive plan and if it meets all other criteria enumerated
by the local government.

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 24. Florida Statutes 163.3164 and Section 94-62, Sarasota County Code both
provide:

For the purpose of this Article and the Comprehensive Plan,

the following definitions shall apply:
(a) Act means the Local Government Comprehensive
Planning and Land Development Regulation Act, F.S. ch. 163,
pt. II, as amended.
(b) The Sarasota County Comprehensive Plan or the
Comprehensive Plan means the Comprehensive Plan adopted
herein in compliance with the Act.
(c) Board means the Board of County Commissioners of
Sarasota County, Florida.
(d) Consistent with the Sarasota County Comprehensive
Plan or in conformity with the Sarasota County Comprehensive
Plan means that the land uses, densities or intensities and
other aspects of development permitted by a development
order are compatible with and further the goals, objectives,
policies, land uses, and densities or intensities in the
Sarasota County Comprehensive Plan pursuant to the
provisions of this ordinance, as the Comprehensive Plan and
this ordinance may be amended from time to time.

(e) Decision-making authority means any state or local

government commission, board, agency, department or official
having authority to issue a development order as defined
herein.
(f) Development order means any action granting,
denying, or granting with conditions, an application for a
development permit.

(g) Development permit means any preliminary

subdivision plan, subdivision or other plat approval, site and
development plan approval, rezoning, certification, special
exception, variance, environmental permit or any other

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 official action of Sarasota County or any other state or local
government, commission, board, agency, department or official
having the effect of permitting development of land located
within the geographic area subject to the provisions of the
Sarasota County Land Development Regulations.

(h) Primary Components of the Comprehensive Plan means

the Goals, Objectives, and Policies of each chapter; Principles
for Evaluating Development Proposals in Native Habitats in
the Environment Chapter, Five Year Schedule of Capital
Improvements (Table 10-3 in the Capital Improvements
Chapter); Designated Constrained and Backlogged Facilities in
Sarasota County (Table 6-5 in the Transportation Chapter);
Year 2025 Future Thoroughfare Plan (Appendix F, Section 4 of
the Transportation Chapter); and the Future Land Use Map
Series identified in Future Land Use Chapter Policy 2.1.2.

(Ord. No. 2010-062, 2, 10-27-2010) (emphasis added)

25. The May 11, 2016, immediately consecutive 4-1 votes on the Resolutions 2016-
79 and 2016-80 by DEFENDANT SARASOTA COUNTY, FLORIDA, by the Board of County
Commissioners is an official action of DEFENDANT SARASOTA COUNTY, FLORIDA,
granting that has the effect of permitting development of land within the geographic area
subject to the provisions of the Sarasota County Land Development Regulations 94-
62(f)-(g), Sarasota County Code (emphasis added). Resolution 2016-79 (Exhibit A), Resolution
2016-80, (Exhibit B).

26. The Community Planning Act, Fla. Stat. 163.3164, defines development by
referencing Florida Statue Section 380.04 which in turn defines development as:

(1) The term development means the carrying out of any building
activity or mining operation, the making of any material change in the use or
appearance of any structure or land, or the dividing of land into three or
more parcels.

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 (2) The following activities or uses shall be taken for the purposes of this
chapter to involve development, as defined in this section:

(a) A reconstruction, alteration of the size, or material change in the

external appearance of a structure on land.

(b) A change in the intensity of use of land, such as an increase in

the number of dwelling units in a structure or on land or a material
increase in the number of businesses, manufacturing establishments,
offices, or dwelling units in a structure or on land.

(c) Alteration of a shore or bank of a seacoast, river, stream, lake,

pond, or canal, including any coastal construction as defined in s.
161.021.

(d) Commencement of drilling, except to obtain soil samples, mining,

or excavation on a parcel of land.

(e) Demolition of a structure.

(f) Clearing of land as an adjunct of construction.

(g) Deposit of refuse, solid or liquid waste, or fill on a parcel of land.

(3) The following operations or uses shall not be taken for the purpose of
this chapter to involve development as defined in this section:

(a) Work by a highway or road agency or railroad company for the

maintenance or improvement of a road or railroad track, if the work is
carried out on land within the boundaries of the right-of-way.

(b) Work by any utility and other persons engaged in the distribution
or transmission of gas, electricity, or water, for the purpose of
inspecting, repairing, renewing, or constructing on established rights-
of-way any sewers, mains, pipes, cables, utility tunnels, power lines,
towers, poles, tracks, or the like. This provision conveys no property
interest and does not eliminate any applicable notice requirements to
affected land owners.

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 (c) Work for the maintenance, renewal, improvement, or alteration of
any structure, if the work affects only the interior or the color of the
structure or the decoration of the exterior of the structure.

(d) The use of any structure or land devoted to dwelling uses for any
purpose customarily incidental to enjoyment of the dwelling.

(e) The use of any land for the purpose of growing plants, crops,
trees, and other agricultural or forestry products; raising livestock; or
for other agricultural purposes.

(f) A change in use of land or structure from a use within a class

specified in an ordinance or rule to another use in the same class.

(g) A change in the ownership or form of ownership of any parcel or

structure.

(h) The creation or termination of rights of access, riparian rights,

easements, covenants concerning development of land, or other rights
in land.

(4) Development, as designated in an ordinance, rule, or development

permit includes all other development customarily associated with it unless

otherwise specified. When appropriate to the context, development refers to

the act of developing or to the result of development. Reference to any

specific operation is not intended to mean that the operation or activity,

when part of other operations or activities, is not development. Reference

to particular operations is not intended to limit the generality of

subsection (1).

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 27. Florida Statutes 380.04(4) clearly and expressly provides that:

[reference] to any specific operation is not intended to mean that the operation or

activity, when part of other operations or activities, is not development.

This includes the operation listed in Fla. Stat. 163.3164(3)(h) termination of rights of

access which can be development when that operation is an essential part of other operations

or activities for development as in the instant case. When an approval has the effect of permitting

development it falls squarely within the Florida Statutes definition of a development permit.

Graves v. City of Pompano Beach, 74 So.3d 595, 598 (Fla. 4th DCA, 2011) (citing

163.3164(8), Fla. Stat. (development permit includes any official action of local government

having the effect of permitting the development of land).

28. When the language of the statute is clear and unambiguous and conveys a clear

and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and

construction; the statute must be given its plain and obvious meaning.3

29. Therefore, vacating the public thoroughfare shown on the plat for this segment of

Beach Road is an official action of Sarasota County done for the purpose of and having the effect

of permitting development.

30. The Board of County Commissioners 4-1 votes of May 11, 2016, vacated the

subject segment of Beach Road in order to achieve the Applicants desired increase in density

and intensity of use of land which action is inconsistent with the duly adopted Comprehensive

Plan.

3
Town of Longboat Key v. Islandside Prop. Owners Coal., LLC, 95 So.3d 1037, 1042 (Fla. 2nd
DCA 2012) quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) quoting A.R. Douglass, Inc. v.
McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931).
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a. The County Comprehensive Plan and Code clearly proscribe the methods and

limitations by which structures in the Coastal High Hazard Area may be voluntarily

demolished and rebuilt.

b. The subject parcels are located within the Coastal High Hazard Area governed by

these rules.

c. The subject parcels contain existing non-conforming residential structures.

d. Voluntary demolition of these structures results in two options for the Applicants:

either:

i. rebuild a duplex on each of the two parcels within the footprint of the

voluntarily demolished structures (total of four (4) units) or,

ii. build one single-family unit on each of the two parcels that could exceed the

footprint of the existing nonconforming structures, (total two (2) single family

units).

e. The structure(s) proposed by INTERVENOR MADDENS greatly exceed the

footprint of the existing structures.

f. The maximum allowable number of units on the INTERVENOR MADDENS

two (2) lots located landward of Beach Road is limited to two (2) units because the

footprint of the prior non-conforming structures has been exceeded.

g. DEFENDANT SARASOTA COUNTY, FLORIDA, repeatedly demonstrates that

the street vacation is essential to permit development as proposed with six (6) units.

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 31. DEFENDANT SARASOTA COUNTY, FLORIDAs public documents
(Composite Exhibit H) repeatedly show that the effect of the 4-1 votes, when taken together, was
to permit development of land.

32. The Countys Manager of Environmental Permitting, Howard J. Berna, in an

email dated July 21, 2015, 4:42PM, stated: It is my understanding that the purpose of the
street vacation is to obtain the total lot square footage required to achieve the applicants
desired outcome. (emphasis added)

33. DEFENDANT SARASOTA COUNTY, FLORIDA, Report for the Coastal

Setback Variance Petition No. 79-03-15-455 at 89 Beach Road and 84 Avenida Veneccia, Siesta
Key, From Thomas C. Polk, Director of Planning and Development Services and Weiqi Lin,
P.E., Ph. D., Environmental Permitting, through Thomas A. Harmer, County Administrator,
dated May 11, 2016, expressly states:

The most seaward parcel is separated from the other two parcels by the 60
ft. wide Beach Road right-of-way. The Petitioners have also filed a Street
Vacation Petition to seek the County Commissions (Boards) approval to
close that section of Beach Road so that an additional 8,265 sq. ft. area,
resulting from the Street Vacation request, can be used to calculate the
dwelling unit density, as proposed in this variance request. Without the
road vacation, the proposed construction activities in this variance
request do not meet current County Zoning Regulations with respect to
density calculations and setbacks. The Street Vacation Petition is scheduled
for a Public Hearing prior to this CSV request. A condition precedent to the
granting of this variance is the Boards approval of the Beach Road
Vacation. If the Board does not grant the Street Vacation Petition, then
the project proposed by this CSV application cannot be developed.
(emphasis added)

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 34. The Narrative attached to the Vacation Application as the reason(s) for the
filing of this Petition expressly states:

See Exhibit C

35. The County Zoning Administrator stated that they have calculated the coverage
utilizing the properties that are located on the southern side of Beach Road to calculate the
coverage which is acceptable if the vacation is granted. Email from Donna Thompson, Zoning
Administrator, to Weiqi Lin, September 10, 2015, 4:05PM,Subject 89 Beach Road. (emphasis
added)

36. County Zoning Administrator, Donna Thompsons email of July 21, 2015,
4:56PM, expressly states:

37. Correspondence from Applicants INTERVENORS DENNIS W. MADDEN and

WENDY W. MADDENs counsel, Charles D. Bailey, III, Esquire, to Weiqi Lin, Ph. D.
Environmental Permitting, dated August 10, 2015, quoted Mr. Lins observation that
[v]erification of ROW [right-of-way] Vacation is required to meet density calculations, and
Mr. Bailey answers, Noted: We are processing Street Vacation Petition for Beach Road
concurrently with this Coastal Setback Variance Application. (emphasis added)

38. DEFENDANT SARASOTA COUNTY, FLORIDA, County Attorney Stephen E.

DeMarsh, Esquire, expressly demonstrated to the Sarasota County Board of County
Commissioners during the May 11, 2016 public hearing before the 4-1 votes that the street
vacation is an essential prerequisite to permitting the development of the subject land:

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 Mr. Chairman, the first question you should ask yourselves is do you

want to go back and deal with the vacation first?

Ill tell you why you might wish to: if you were to approve the vacation

this petition could be acted upon and if you deny it this petition cannot

be approved.

BCC Meeting, May 11, 2016 video AM 2016_5_11 video time bar 3:53:50 3:54:15.

SPECIFIC COMPREHENSIVE PLAN POLICIES VIOLATED BY DEFENDANT

39. The proposed development approved by Resolution 2016-79 (Exhibit A) and

Resolution 2016-80 (Exhibit B) is inconsistent with the duly adopted Comprehensive Plan as a
whole and is inconsistent with the following specific goals, objectives, and policies of the
Comprehensive Plan.

DEFENDANT VIOLATED COMPREHENSIVE PLAN, CHAPTER 3, POLICY 1.1.13

40. Comprehensive Plan, Chapter 3, Policy 1.1.13 expressly requires that:

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.

41. Resolution 2016-79 (Exhibit A) is inconsistent with Comprehensive Plan Policy

1.1.13 because it specifically and intentionally vacated a road segment (the vacated segment of
Beach Road) on waterfront along two (2) Gulf access points.

42. In addition, Resolution 2016-79 ended the right-of-way use (i.e., foreclosed all
public rights of use as a thoroughfare and right-of-way) of the vacated segment of Beach Road
for coastal beach and bay access, which is a direct violation of Comprehensive Plan Policy
1.1.13.

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 43. Resolution 2016-79 caused the vacation of the subject road segment and is
therefore inconsistent with Comprehensive Plan Policy 1.1.13.

44. Further, Resolution 2016-80 (Exhibit B) approves a variance to the Gulf Beach
Setback Line for private residential development and does not encourage right of way use of
these areas but instead uses land upon which it is illegal to build, including the vacated portion of
Beach Road and seaward submerged lands, aggregated as one unified parcel to calculate density
and open space and to overcome other development constraints that prevented the sought
development but for Resolution 2016-79, which vacated the subject segment of Beach Road.

45. Resolution 2016-80 further violated Comprehensive Plan Policy 1.1.13 by not
encouraging the publics right-of-way use by forbidding the publics right to drive on the
vacated segment of Beach Road (i.e., Applicants newly-acquired private land) instead of
encouraging the publics right-of-way use, as required by Policy 1.1.13.

46. The 4-1 votes approved vacating a road segment along two Gulf Access points
known as Beach Access #2 and Beach Access #3 of Siesta Key Beach and specifically eliminates
(and does not encourage) right-of-way use of these areas for coastal beach and bay access,
contrary to Comprehensive Plan Policy 1.1.6 which encourages the County to buy (not to give
away) such lands.

47. The approval of the subject development, including the vacation of Beach Road,
is inconsistent with Comprehensive Plan Parks Elements, including Policy 1.1.13 and Policy
1.1.6. This inconsistency directly affects Cosentinos ability to continue to drive on Beach Road
as a right-of-way (dedicated to and accepted by the public for thoroughfare use almost 100 years
ago).

DEFENDANT VIOLATED FUTURE LAND USE POLICY 1.1.2.

48. The approval of the development is inconsistent with Comprehensive Plan and
Future Land Use Policy, including:

FLU Policy 1.1.2. Barrier Islands are designated on the Future Land Use
Map to recognize existing land use patterns and to provide a basis for
hurricane evacuation planning and disaster mitigation efforts. The intensity
and density of future development on the Barrier Islands of Sarasota shall

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 not exceed that allowed by zoning ordinances and regulations existing as
of March 13, 1989, except that with respect to lands zoned RMF
(Residential Multi-Family) as of that date and consistently so thereafter, a
nonconforming duplex whose density exceeds the density restrictions of the
zoning ordinances and restrictions may be rebuilt within the footprint of
the structure, or a non-conforming multifamily structure may be demolished
and a duplex rebuilt in its place within the prior footprint of the multifamily
structure without violating this policy. (emphasis added)

49. The approval of the development is inconsistent with Comprehensive Plan

and Future Land Use Policy 1.1.2 because the density and intensity of development
approved would be increased beyond that allowed by zoning ordinances and regulations
existing as of March 13, 1989.

50. The approval of the development is inconsistent with Comprehensive Plan

and Future Land Use Policy 1.1.2 because the density and intensity of development
approved exceeds the footprint of the pre-existing non-conforming multifamily structures.

51. The approval of the development is inconsistent with Comprehensive Plan

and Future Land Use Policy 1.1.2 because the density and intensity of development
approved would exceed open space requirements and impervious lot coverage percentages.

52. Were the existing buildings on each of the INTERVENORS upland lots to
be demolished, Future Land Use Policy 1.1.2 clearly provides that any structures planned
outside the current structures footprint would consist of only one dwelling unit per lot,
thereby allowing the INTERVENORS to build only two (2) dwelling units on the upland
parcels (total 2 units) without the vacated portion of Beach Road. Therefore, the 4-1
votes violate the Comprehensive Plan including Future Land Use Policy 1.1.2.

53. The proposed private development directly relies upon the vacation of a segment
of Beach Road to calculate additional square footage for private development thereby increasing
both density and intensity in the Coastal High Hazard Area seaward of the Gulf Beach Setback
Line, which is inconsistent with the Comprehensive Plan, including Chapter 3 Policy 1.1.13 and
Future Land Use Policy 1.1.2.

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 DEFENDANT VIOLATED ENVIRONMENTAL POLICY 1.1.1.

54. The 4-1 votes approving private development on the subject land that includes
vacating a segment of a public road, Beach Road, (which was dedicated by plat for
thoroughfare purposes only, reserving all other rights) is also inconsistent with the duly adopted
Comprehensive Plan Environmental Policy, including:

ENV Policy 1.1.1. Continue to enforce Sarasota County Ordinances

pertaining to construction seaward of the Countys Gulf Beach Setback

Line and Barrier Island Pass Hazard Line (emphasis added)

by specifically approving construction seaward of the Countys Gulf Beach Setback Line and
Barrier Island Pass Hazard Line rather than enforcing the prohibition of development seaward
of the Gulf Beach Setback Line.

55. The variance is not consistent with Section 54-724, Sarasota County Code, which
limits the issuance of Gulf Beach Setback Line and requires:

The Board of County Commissioners of Sarasota County after a public

hearing may grant variances that would permit Construction and/or
Excavation Seaward of the Gulf Beach Setback Line or Waterward of
the Barrier Island Pass Twenty-Year Hazard Line.

(a) Variances. The Board may grant a variance as described above if

the Board determines the following:

(1) Strict enforcement of the provisions of the Article

would impose an unreasonable or unjust hardship on the land;

(2) The requested variance does not adversely affect

Coastal Systems;

(3) The requested variance is the minimum variance

necessary to permit reasonable use of the property;

(4) The requested variance is not in substantial conflict

with the attainment of the purposes in Sections 54-721(b)(1)

19
 through 54-721(b)(8), and is consistent with the attainment of
the purpose in Section 54-721(b)(9);

(5) The requested variance is consistent with the

Sarasota County Comprehensive Plan.

The variance approved by DEFENDANT SARASOTA COUNTY, FLORIDA, Resolution 2016-

80 violates Sarasota County Code 54-724(a)(3), (4), and (5) as well as Sections 54-721(b)(1)
through 54-721(b)(8) and is inconsistent with attainment of the purpose of 54-721(b)(9) and is
inconsistent with the Sarasota County Comprehensive Plan.

56. The 4-1 votes are inconsistent with ENV Policy 1.1.1 and Chapter 54 Article
XXII Section 54-721 through 54-729 (Sarasota County Coastal Setback Code) because, as
DEFENDANT SARASOTA COUNTY, FLORIDAs own Staff Analysis of Code Approval
Criteria for Coastal Setback Variance No. 79-03-15-455 states:

a. the total habitable area of the new structures will be 18,901 sq. ft. with an
average of 3,150.2 sq. ft. per living unit. This represents an increase of 3.9 times
larger than the average existing living unit (of 806.6 sq. ft.)

b. The seaward extent of the proposed residential construction is 4.4 ft. more
seaward than the existing buildings

c. The extension of the 2-ft. high landscaping retaining wall is located 67.25 ft.
seaward of the GBSL (more seaward than the existing retaining wall)

d. Based on the area comparison table provided by the [Maddens], the following
items have shown an increase seaward of the GBSL:

i. The proposed habitable area seaward of the GBSL

(6,206 sq. ft.) results in an increase of 1.805 sq. ft. (41.0%), as compared
to the existing 4,401 sq. ft. of habitable area seaward of the GBSL.

ii. The proposed enclosed non-habitable area seaward of

the GBSL (4,222 sq. ft.); results in an increase of 3,880 sq. ft.
(1,134.5%), as compared with the existing 342 sq. ft.

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 iii. The proposed unenclosed non-habitable area of 3,893
sq. ft. seaward of the GBSL results in an increase of 932 sq. ft. (31.5%)
as compared with the existing 2,961 sq. ft.

e. The proposed construction seaward of the GBSL will result in residential

structures at least 4.4 feet closer to the Gulf of Mexico than the existing residential
structures.

f. The proposed multi-family residence will intensify construction located within

the coastal setback hazard area seaward of the GBSL, and therefore may pose a risk to
public health, safety, and welfare if the structure is damaged during a storm event.

g. The proposed construction activities in this variance request do not meet

current County Zoning Regulations for density without obtaining a Street
Vacation to include 8,265 sq. ft. of Beach Road in the density calculation.

h. Should the Beach Road Vacation Petition be denied, the requested Coastal
Setback Variance would not meet the Zoning Regulations density requirement.

i. The intensity of construction seaward of the GBSL may result in future public
expenditures association with clean up efforts following a natural disaster.

j. Based on the area comparison table provided by the [Maddens], the Board may
find that the following increases do not represent the minimum reasonable use of
the property.

i. The total habitable area of the new structures will be

18,901 sq. ft., with an average of 3,150.2 sq. ft. per living unit.
This represents an increase of 3.9 times larger than the
average existing unit.

ii. The proposed habitable area seaward of the GBSL

(6,206 sq. ft) results in an increase of 1,805 sq. ft. (41.0%) as
compared to the exisiting 4,401 sq. ft. of habitable area
seaward of the GBSL.

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 iii. The proposed enclosed non-habitable area seaward of
the GBSL (4,222 sq. ft.) results in an increase of 3,880 sq. ft.
(1,134.5%) as compared with the existing 342 sq. ft.

iv. The proposed unenclosed non-habitable area of 3,893

sq. ft. (1,134.5%) seaward of the GBSL results in an increase
of 932 sq. ft. (31.5%) as compared with the existing 2,961 sq.
ft.

v. The seaward extent of the proposed residential

construction is 39.7 feet seaward of the GBSL (4.5 ft. more
seaward than the existing building) and 256.1 ft. to the
Mean High Water Line (MHWL.)

k. The requested variance intensifies construction seaward of the

GBSL.

57. The proposed development approved by Resolution 2016-80 (Gulf Beach Setback

Line Variance) and Resolution 2016-79 (Street Vacation) is inconsistent with the limits on

density and intensity of land use set forth in the Comprehensive Plan, and it adversely affects

Cosentinos ability to ever use Beach Road as public right of way road for vehicular travel to

enjoy waterfront vista and to travel by vehicle directly from his property at 10 Beach Road to

both Beach Access #3 and Columbus Boulevard.

58. PLAINTIFF JOHN MICHAEL COSENTINO requests the following remedies

and relief available under Florida Statutes Section 163.3215: a full and fair de novo trial applying

strict scrutiny on the merits of whether the Development Order and the accompanying

Development Permit violate the Comprehensive Plan under the statutory cause of action set forth

in Florida Statutes Section 163.3215; all appropriate judicial remedies including an order of the

circuit court quashing, revoking, invalidating and vacating the approval of the Development

22
Order; any other appropriate relief awardable under Pinecrest Lakes, Inc. v. Shidel, 795 So.2d

191 (Fla. 4th DCA, 2001) cert. denied 821 So.2d 300 (Fla. 2002).

Request for Relief Count I.

WHEREFORE, PLAINTIFF JOHN MICHAEL COSENTINO, prays the Court find the

development inconsistent with the Comprehensive Plan and permanently enjoin DEFENDANT,

SARASOTA COUNTY, FLORIDA, from taking any further action on the subject resolutions

other than to rescind in full; permanently enjoin Applicants and their successors in interest from

any further development under the subject resolutions; and order DEFENDANT, SARASOTA

COUNTY, FLORIDA, Applicants, and their successors in interest to remove all obstructions on

the Beach Road right-of-way by a date certain; and all other relief this Court deems proper.

COUNT II
DECLARATORY JUDGMENT
IMPROPER NOTICE
59. Plaintiff incorporates by reference each allegation made in paragraphs 1-14 of this
Complaint as if asserted herein.

60. This count is brought against Defendant SARASOTA COUNTY pursuant to

Chapter 86, Florida Statutes.

61. DEFENDANT SARASOTA COUNTY, FLORIDA and the Applicants did not
meet the requirements for legal notice for the following actions taken by Sarasota County in the
County Charter, County Code, and Florida Statutes as set forth below.

A. NOTICE UNDER COUNTY CHARTER: PERCENTAGE OF OWNERSHIP

62. County Charter requires that the percentages of ownership in the parcel(s) at issue

be disclosed pursuant to Sarasota County Charter Article III Section 3.8, which expressly

requires that percentages of ownership be included on disclosure forms and public notices of

hearings.

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 Section 3.9 - Zoning Disclosure.
a. All persons or entities applying for rezoning, special exceptions, or
variances, shall disclose the true ownership interests in any property
sought to be rezoned and shall further disclose the true parties in interest in
any corporation, trust, partnership, limited partnership or any legal entity of
any type in their zoning application.
b. No applications will be accepted by the Sarasota County Planning
Commission, or any other County Commission Board relating to zoning or
any other form of land use change unless it is presented on official County
forms. Forms shall include, but are not limited to, disclosure forms for
corporations, trusts, partnerships, limited partnerships, option contracts,
contract purchasers, or any other option and shall disclose all owners having
any right, title or interest of any type in the property at issue sought to be
rezoned and the disclosure forms shall specifically state each person's or
entity's percentage of interest in any entity. Information with regard to
disclosures shall be included in public notices of hearings.
(emphasis added).

63. The public notice of hearing for the Gulf Beach Setback Line Variance did not
meet the requirement contained in Sarasota County Charter Article III Section 3.9(b) because the
notice did not specifically state each person's or entity's percentage of interest in any
entity. Exhibit I [newspaper notice] and Exhibit J [Disclosure Form].

64. The County Charter creates a citizen suit provision that allows any citizen to
enforce the County Charter in Sarasota County Charter Article III (Home Rule) Section 3.8:

Section 3.8 - Citizens' Right to Judicial Relief. Should any elected or appointed

official fail to carry out his or her respective duties as delineated in this Charter,

any citizen of the County shall have the right to seek any appropriate judicial

writ from a court of competent jurisdiction.

24
 65. Plaintiff JOHN MICHAEL COSENTINO is a citizen of Sarasota County who
owns property at 10 Beach Road near and proximate to the subject parcel(s) and seeks this
declaratory and injunctive relief to enforce Charter Article III Section 3.8.

B. NOTICE UNDER 336.10, FLORIDA STATUTES: ADOPTION OF VACATION

66. Sarasota County Code Section 98.2 requires notice of street vacations by adopting
by reference the notice requirements of Florida Statutes Section 336.10, which clearly and
expressly requires the following:

336.10 Closing and abandonment of roads; publication of notice.

Before any such road shall be closed and vacated, or before any right or
interest of the county or public in any land delineated on any recorded map
or plat as a road shall be renounced and disclaimed, the commissioners
shall hold a public hearing, and shall publish notice thereof, one time, in a
newspaper of general circulation in such county at least 2 weeks prior to
the date stated therein for such hearing. After such public hearing, any
action of the commissioners, as herein authorized, shall be evidenced by a
resolution duly adopted and entered upon the minutes of the
commissioners. The request of any agency of the state, or of the United
States, or of any person, to the commissioners to take such action shall be
in writing and shall be spread upon the minutes of the commissioners;
provided, however, that the commissioners of their own motion and
discretion, may take action for the purposes hereof. Notice of the adoption
of such a resolution by the commissioners shall be published one time,
within 30 days following its adoption, in one issue of a newspaper of
general circulation published in the county. The proof of publication of
notice of public hearing, the resolution as adopted, and the proof of
publication of the notice of the adoption of such resolution shall be
recorded in the deed records of the county.
(emphasis added).
67. The post-hearing adoption notice did not meet this requirement because the notice
of adoption was not published within 30 days following its adoption. Notice of the adoption of
such a resolution by the commissioners shall be published one time, within 30 days following its
adoption, in one issue of a newspaper of general circulation published in the county. Id.

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 68. All of the necessary elements for a Chapter 86 declaratory judgment action4 have
been met as follows:

a. there is a bona fide, actual, present practical need for the declaration
because a variance was approved without compliance with the notice
requirements set forth above;

b. the declaration should deal with a present, ascertained or ascertainable

state of facts or present controversy as to a state of facts because a
variance was approved in Resolution 2016-80 without first complying
with the notice requirements set forth above;

c. some immunity, power, privilege or right of the complaining party is

dependent upon the facts or the law applicable to the facts; that there is
some person or persons who have, or reasonably may have an actual,
present, adverse and antagonistic interest in the subject matter, either in
fact or law because a variance was approved in Resolution 2016-80
without first complying with the notice requirements set forth above;

d. the antagonistic and adverse interest[s] are all before the court
including the County that approved (and the Applicants) Resolution 2016-
80 without first complying with the notice requirements set forth above;
and

e. the relief sought is not merely giving of legal advice by the courts or
the answer to questions propounded from curiosity because a variance was
approved in Resolution 2016-80 without first complying with the notice
requirements set forth above.

Request for Relief Count II.

4
Coalition for Adequacy and Fairness in School Funding v Lawton Chiles, 680 So.2d 400 (1996).

26
 WHEREFORE, Plaintiff seeks declaratory, injunctive relief and all other appropriate
relief including an order of this court reversing or remanding the applications for failure to
comply with notice requirements contained in the Sarasota County Charter Article III Section
3.8, County Code 98.2 and 336.10 Florida Statutes.
COUNT III
DECLARATORY AND INJUNCTIVE RELIEF
PRIVATE RIGHT OF INGRESS, EGRESS AND RIGHT OF TRAVEL
UPON DEDICATED SUBDIVISION ROAD THOROUGHFARE

69. This Count is brought against INTERVENOR DEFENDANTS WILLIAM H.

CAFLISCH, SR, as Trustee of the William Caflisch Declaration Of Trust, SHEILA SANCHEZ

CAFLISCH As Trustee of the Sheila Caflisch Declaration Of Trust, and DENNIS W.

MADDEN, WENDY MADDEN, and WENDY W. MADDEN as Trustee of the Walther Family

Trust dated 02/01/1996. This Count is not alleged against SARASOTA COUNTY.

70. Plaintiff incorporates by reference each allegation made in paragraphs 1-14 of this

Complaint as if asserted herein.

71. PLAINTIFF COSENTINO owns 10 Beach Road which is co-located within the
Mira Mar Subdivision, Plat Book 2, Page 130 & 130A.

72. Cosentinos deed (Exhibit G) references the subdivision plat for Mira Mar
Subdivision Plat Book 2 Pages 130-130A, which provides that Beach Road was dedicated to
public use for thoroughfare purposes only, reserving all other rights. (Exhibit F).

73. 10 Beach Road is 465 feet north of the vacated segment of Beach Road.

74. As a private property owner, with a private right arising from ownership of a lot
on the same road on the same plat, the DEFENDANT SARASOTA COUNTY, FLORIDAs
vacation of the subject 22,073 sq. ft. segment of Beach Road does not extinguish the private right
of Cosentino to continue to use Beach Road for thoroughfare purposes as a private owner of a
lot on the same plat as reflected in his deed, to drive his vehicle on Beach Road between
Columbus Boulevard and Avenida Messina.

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 75. DEFENDANT SARASOTA COUNTY, FLORIDA, allowed bollards and
obstructions to private and public traffic to be placed on both ends of the vacated segment of
Beach Road blocking and preventing use of the vacated portion of Beach Road by Cosentino in
his vehicle for for thoroughfare purposes.

76. Plaintiff seeks declaratory and injunctive relief from this court declaring that
Plaintiff has a private right to use the vacated portion of Beach Road for private thoroughfare
purposes as an owner of a lot on Beach Road within Mira Mar Subdivision, Plat Book 2, Page
130 & 130A.5

77. All of the necessary elements for a Chapter 86 declaratory judgment action6 have
been met, including:

a. there is a bona fide, actual, present practical need for the declaration,
b. the declaration will deal with a present, ascertained or ascertainable state of
facts or present controversy as to a state of facts,
c. some immunity, power, privilege or right of the complaining party is
dependent upon the facts or the law applicable to the facts; that there is some
person or persons who have, or reasonably may have an actual, present,
adverse and antagonistic interest in the subject matter, either in fact or law,
d. the antagonistic and adverse interest[s] are all before the court,
e. the relief sought is not merely giving of legal advice by the courts or the
answer to questions propounded from curiosity

because DEFENDANT SARASOTA COUNTY, FLORIDA, has allowed bollards and other
obstructions to be installed by Applicants and their successors (who have actual, present,
adverse, and antagonistic interests) at both ends of the vacated segment of Beach Road to block
and prevent the private use of the vacated segment of Beach Road by Cosentino who as a
property owner of a platted lot within Mira Mar Beach Subdivision has the rights dependent
upon the facts or the law applicable to the facts.

Request for Relief Count III.

5
City of Miami v. Fla. East Coast Railway Co., 84 So. 726 (Fla. 1920), Mumaw v.Roberson, 60 So. 2d 741 (Fla.,
1952), and Florida Stattute Chapter 95.
6
Coalition for Adequacy and Fairness in School Funding v Lawton Chiles, 680 So.2d 400 (1996).

28
 WHEREFORE, Plaintiff respectfully requests an order of this court declaring that
Plaintiff has a private right to use the vacated portion of Beach Road for private thoroughfare
purposes as an owner of a lot on Beach Road within Mira Mar Subdivision, Plat Book 2, Page
130 & 130A, and all other appropriate relief, including ordering removal of the obstructions.

29
 EXHIBITS TO COMPLAINT

Due to the size of exhibits in bytes, the exhibits to the Second Amended Complaint may
necessitate filing as a separate Notice of Filing Exhibits to the Second Amended Complaint.
INDEX
EXHIBIT
A Resolution 2016-79
B Resolution 201680
C Street Vacation Petition Dated May 21, 2015
D Kenneth R. Craig, P.E., North Beach Road Shoreline Protection Study, Siesta
Key, Sarasota County, Florida, October, 2013
E Variance Petition 79-03-15-455
F Mira Mar Subdivision Plat Book 2 Pages 130 & 130A
G Corrective Warranty Deed/Lot 1 and Lot 29, Block 7, Mira Mar Beach

Respectfully submitted this 3rd day of February 2017,

/s/ Ralf Brookes

RALF BROOKES ATTORNEY
Florida Bar No. 0778362
1217 E Cape Coral Parkway #107
Cape Coral, Florida 33904
Telephone (239) 910-5464
Facsimile (866) 341-6086
Ralf@RalfBrookesAttorney.com
RalfBrookes@gmail.com

Elizabeth A. Gomez-Mayo
FBN 0046738
1479 Gene St
Winter Park Fl 32789
Phone (407) 312-8225
Fax (407) 517-4424
email.gomez.mayo@gmail.com

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 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
electronically served this February 3 2017 to the following:

COUNSEL FOR DEFENDANT SARASOTA COUNTY, FLORIDA

Karl Senkow ksenkow@scgov.net
David M Pearce dpearce@scgov.net
mwagar@scgov.net

COUNSEL FOR INTERVENORS WILLIAM H. CAFLISCH, SR, as Trustee of the

William Caflisch Declaration of Trust, SHEILA SANCHEZ CAFLISCH, As Trustee
of the Sheila Caflisch Declaration Of Trust,
Joseph Haynes Davis joseph.davis@jhdlaw.com

COUNSEL FOR INTERVENORS DENNIS W. MADDEN, WENDY MADDEN,

and WENDY W. MADDEN as Trustee of the Walther Family Trust dated
02/01/1996, Counter Plaintiffs/ Third Party Plaintiffs
Charles (Charlie) D. Bailey, III cbailey@williamsparker.com
Tommy Eugene Gregory tgregory@williamsparker.com
Miles Lewis Hall III lhall@williamsparker.com
jhawkins-dyrda@williamsparker.com
mwengerd@williamsparker.com

COUNSEL FOR PLAINTIFF

/s/ Ralf Brookes
RALF BROOKES ATTORNEY
Florida Bar No. 0778362
1217 E Cape Coral Parkway #107
Cape Coral, Florida 33904
Telephone (239) 910-5464
Facsimile (866) 341-6086
Ralf@RalfBrookesAttorney.com
RalfBrookes@gmail.com

Elizabeth A. Gomez-Mayo
FBN 0046738
1479 Gene St
Winter Park Fl 32789
Phone (407) 312-8225
Fax (407) 517-4424
email.gomez.mayo@gmail.com

31