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Beach Road
Sarasota Wednesday, Nov. 6, 2019 2 weeks ago

Judge declares Beach Road charter amendment unconstitutional

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The decision also struck down a portion of a second charter amendment restricting the county’s ability to sell parkland and water-adjacent rights of way.
by: David Conway Deputy Managing Editor

Last month, a judge in the 12th Judicial Circuit Court determined a 2018 amendment to the Sarasota County charter attempting to reopen a closed segment of Beach Road was invalid because it violated the charter and did not adhere to state law.

The judge also overturned a key portion of a second charter amendment that prohibited the county from selling parkland and rights of way near bodies of water.

“These charter sections are hopelessly inconsistent with Florida law; they both cannot survive,” Judge Hunter Carroll wrote in a 25-page decision.

Both charter amendments were initiated by the group Reopen Beach Road, which formed in response to the county’s 2016 decision to vacate its control of a 373-foot segment of Beach Road on Siesta Key, closing it to vehicular access. The Beach Road amendment earned support from 65% of voters, and the amendment regarding land sales drew approval from 72.6% of voters.

The Oct. 28 decision, reported today by the Sarasota Herald-Tribune, notes that courts presume charter amendments to be valid if possible. But in his ruling, Carroll said there were clear issues with the amendments.

“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,” Carroll wrote. “That is the situation here. The court does not take this step lightly.”

The county first filed a claim attempting to invalidate the charter amendments in September 2018, prior to the election in which the amendments passed. Carroll agreed with the county's claims that the electorate does not have “the authority to adopt, amend or repeal legislation adopted by the” County Commission. Carroll said the Beach Road charter amendment clearly violates that standard.

Carroll said a provision in the second charter amendment is at odds with at least three Florida statutes, including one that grants county commissioners broad authority to sell and vacate roads and rights of way.

Carroll said only the first sentence of the second amendment is invalid. That sentence states “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.“

Carroll said it is possible to sever that sentence from the rest of the amendment, which states the county “shall encourage maximum right of way use for public access and viewing of waterfront vistas“ and “whenever feasible, the county shall make these areas accessible to mobility impaired persons.”

Mike Cosentino, the founder of Reopen Beach Road, said the result of the case was expected and remained hopeful the amendments would be upheld on appeal.

“The judge’s ruling basically concludes that we are a dictatorship and the citizens have no right to overturn the county’s illegal actions,” Cosentino said in a statement. “We take comfort in the fact that while the county now remains undefeated in challenging citizens’ initiatives at the trial and appellate courts, it has never won at Florida’s Supreme Court, where ‘We, the People,’ still has meaning.”

In an Oct. 28 memo, County Attorney Frederick Elbrecht said he was pleased to share the ruling with county commissioners. Elbrecht anticipated an appeal is likely.

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