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Margaritaville project faces new lawsuit

By Staff | Jul 14, 2020

Within a span of 24 hours, those in favor of the Margaritaville project on Fort Myers Beach went from jubilation to frustration as a July 8 appellate court ruling in favor of the town over Margaritaville was followed up the next day by a lawsuit challenging the constitutionality of the town’s code as it pertained to the approval of Margaritaville.

Ralf Brookes, attorney for town resident Christine Patton, filed the latest suit in circuit court July 9 against the Town of Fort Myers Beach over the 2018 decision by the Town of Fort Myers Beach Council to grant deviations to the density and intensity of TPI’s Margaritaville through the “exceptional circumstances” provision in the town code.

Brookes had raised the constitutional objections in Patton’s appeal to the Second District Court of Appeal in June but the judges stated that their review was narrow in scope and that the type of constitutional objections Patton filed would have to go through a separate court challenge.

Attorneys for Patton, the town and TPI clashed at the June court hearing over what was allowed under the town’s code and comprehensive plan. Russell Schropp, attorney for TPI, argued that the town’s comprehensive plan allowed the higher intensity while Brookes argued the focus should be on the land development code.

Ultimately, the court ruled unanimously against Patton’s appeal without a written opinion.

“Although there was no written opinion, the appellate court judges indicated in oral argument that a constitutional challenge to the Town Code’s vague use of the undefined ‘exceptional circumstances’ to grant a 300% increase in density must be brought by a declaratory judgment action so that is what we filed,” Brookes said. “We hope the circuit judge will hear our case very soon.”

Mayor Ray Murphy called the latest lawsuit “another delaying tactic in a long list of them.”

The complaint by Patton calls on the circuit court to declare that the Town of Fort Myers Beach Code Section 34-1803(a)(2) violates due process and is unconstitutional based “upon a subjective finding of unspecified exceptional circumstances to increase hotel density.”

Patton’s suit contends that the proposal for a 254-room, four-story hotel with six acres of commercial space gave the developers a 300% increase in density over what was allowable under the town’s land development code. Murphy, who lives less than 2,000 feet from the site, argues she will be “adversely affected by the increased density of hotel guests utilizing the already congested Estero Boulevard.”

The lawsuit argues that substantive due process was violated because the town code “vests unbridled discretionary to approve arbitrary increases in hotel density based on exceptional circumstances and lacks sufficient standards to guide the Town Council in approving or denying such increases.”

Murphy said he hopes the case can get “resolved quickly.”

“It’s disappointing to me that they are continuing this but certainly not surprising,” Murphy said. “I was telling people ‘don’t get your hopes up.'”

The events began on July 8 when the Second District Court of Appeal ruled in favor of the Town of Fort Myers Beach over an appeal by Chris Patton regarding a 2019 circuit court ruling over TPI’s Margaritaville project. Fort Myers Beach Mayor Ray Murphy called that decision a “milestone.” The town and TPI both defended the appeal by Patton.

Murphy said Margaritaville will bring about a “renaissance and revival of the commercial corridor of Fort Myers Beach. This development will spur other developments and will spur investment.”

Fort Myers Beach Attorney John Herin Jr. called the July 8 decision to deny the Patton appeal a “home run for the town.” Herin said the lack of a written opinion “doesn’t get any better.” The decision showed that the court found the town did “nothing wrong,” Herin said.