Protect Captiva provides update on legal efforts
A coalition seeking to maintain the longtime building height and density limitations on Captiva recently provided an update on its legal actions.
On March 23, Protect Captiva reported that court cases are “moving forward.”
It provided the following summary on the pending litigation:
– Lee County and South Seas have separately appealed the decision by Circuit Court Judge James Shenko limiting density at the resort to 912 units. The Sixth District Court of Appeal has scheduled oral argument on the county’s appeal only before Judges Mary Alice Nardella, Paetra T. Brownlee and Roger K. Gannan on April 30 at 9 a.m. in Courtroom 4A at the Lee County Justice Center, at 2075 Dr. Martin Luther King Jr. Blvd., Fort Myers. Argument is limited to 20 minutes per side and arguments are generally webcast.
“As stated in past updates, South Seas cannot request and the county cannot approve building permits for condominiums or hotels on South Seas without providing the Captiva Civic Association (CCA) notice so that it has sufficient time to enjoin any development greater than the historic density of 912 units pending this appeal,” the coalition shared.
– The CCA continues to await the Circuit Court’s review of its motion for sanctions and attorneys fees against the resort and its attorney for filing a lawsuit claiming that the 912-unit limit in a 2003 settlement agreement between the CCA and county did not include hotel units.
“When the evidence is overwhelming that the historic 912-unit limit at South Seas always included both residential and hotel units,” Protect Captiva noted.
It added that the case was transferred to Shenko, who set a hearing on the CCA’s motion to bar discovery by the resort on March 23 and a status conference on April 6.
– The CCA, R.L.R. Investments and Royal Shell Vacations, 12 South Seas condominium associations, and eight South Seas timeshare associations filed a joint petition for writ of certiorari seeking to invalidate the county’s decision to rezone South Seas to permit increased density and building heights. The case was assigned to Shenko, who rescheduled a status conference on March 9 to April 6.
The coalition continued that the 20 petitioners are claiming that the county’s decision resulted from its failure to provide due process to them, that it departed from the essential elements of law and that it was unsupported by competent substantial evidence. For example, the petitioners had no right to cross examine the resort or county witnesses, while the lawyer for South Seas interrupted and questioned community witnesses.
“There was also no reliable evidence that the Florida Governmental Utility Authority (FGUA) wastewater treatment plant at South Seas has the capacity to treat increased density, or that our fire department has the equipment or staff to handle the taller and increased number of buildings approved by the county,” Protect Captiva shared. “And of course, the approved increase in density and building heights was not consistent with the historic development pattern on Captiva and South Seas as required by the Lee Plan.”
It added that in a separate petition for writ of certiorari, Suraya — a home at the resort adjacent to the new Beach House Restaurant — seeks to quash the county’s approval of the South Seas rezoning application because Lee County “willfully ignored the clear mandates of its Land Development Code by not requiring a buffer” between it and the new restaurant built by the resort.
– The CCA and city of Sanibel have jointly appealed the decision of an administrative law judge (ALJ) with the Florida Division of Administrative Hearings (DOAH). The parties continue to await the assignment of a panel of judges in the Sixth District Court of Appeal and scheduling of oral argument.
“The ALJ was wrong in ruling that the Land Development Code amendments which exempted South Seas from Captiva’s hotel density limits were consistent with the Lee Plan, which requires the county to ‘limit development to that which is in keeping with the historic development pattern on Captiva … including South Seas,'” the coalition shared.
“If the appellate court reverses the DOAH judge, everything the county has done for the new owners of South Seas during the past two years will be called into question,” Protect Captiva added.
– In December, the resort initiated a lawsuit against the Captiva Community Panel. South Seas is claiming that the panel failed to fully respond to its public records request seeking documents and emails relating to it, including communications with community members who testified during the county’s rezoning proceedings before the Lee County Hearing Examiner and county commission.
“While the panel may not even be covered by the Public Records Act, the panel has produced more than 1,000 pages of documents in response to this request,” it shared. “However, South Seas continues to sue community organizations that oppose increases in density or building heights on Captiva — and to run up their legal bills.”
The panel has retained legal counsel in the matter.
In addition, the coalition confirmed that the Rauschenberg Foundation sold its 22 acres of property on Captiva to South Seas, calling the move a rejection of the efforts of the Captiva Island Fire Control District and community to honor Bob Rauschenberg’s legacy by purchasing and preserving as much as the property as possible for the community and in its current undeveloped state.
“It is difficult to comprehend the extent to which the foundation has failed the island community that Bob Rauschenberg loved and personally sought to protect from development,” Protect Captiva shared. “It is a grievous betrayal by the Rauschenberg Foundation.”
It noted that the county advised the resort in a zoning verification letter that the 22 acres are governed by the Lee Plan and Captiva Code, which limits development to three units per acre for residential dwelling and hotel units. Any greater development would require Plan and Code amendments and a rezoning of the property.
“Efforts of South Seas to expand the resort onto the Rauschenberg property and into Captiva’s Village would generate the same community opposition and prolonged litigation with Protect Captiva that continues to forestall efforts to increase density on South Seas since Timbers Resorts, The Ronto Group and Wheelock Street Capital purchased the resort in 2021,” the coalition added.
To reach TIFFANY REPECKI / trepecki@breezenewspapers.com, please email