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 May 5, Protect Captiva reported that the future of development — and overdevelopment — of the island is in the hands of the courts as the South Seas ownership group, consisting of Wheelock Street Capital, The Ronto Group and the Timbers Company, continues its litigation and development strategy.
It provided the following on some of the pending litigation:
– Oral argument on Lee County’s appeal of the Circuit Court decision limiting density at the resort to 912 dwelling units took place on April 30 at the Lee County Justice Center in Fort Myers.
“Although it is difficult to predict the outcome of a case based upon the judges questions at oral argument, one can reasonably draw some inferences,” the coalition reported.
Protect Captiva continued that all of the judges probably believe that the 2003 mediated settlement agreement between the Captiva Civic Association (CCA) and county is a clear and unambiguous contract limiting density at South Seas to 912 dwelling units.
“The county was not persuasive in arguing otherwise,” it added.
The coalition continued that one judge was assertive in asking whether the agreement may have been unlawful from the beginning — ultra vires — if the county had no authority in 2003 to contract away its police powers and its right to increase density at the resort in the future through a rezoning process.
Protect Captiva added that the other two judges were hard to read on the issue, although one of them raised a policy concern about a contract binding the county’s hands from rezoning a property.
“However, to rule against the CCA, the judges will have to set aside the Florida Constitution, which prohibits the government from impairing the contract rights of its citizens,” it reported. “The Florida Supreme Court has called the protection of contracts both ‘fundamental’ and ‘sacrosanct,’ and a government has only ‘a very severely limited authority’ to ‘eliminate a contractual obligation it has itself created.'”
A decision could come quickly or take more than a year.
– A motion by South Seas to disqualify Circuit Court Judge James Shenko from the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) case has been denied as being “legally insufficient.”
“South Seas claims, contrary to the overwhelming evidence, that the CCA was deceptive when it stated in its legal update that the 912-unit limit in the 2003 settlement agreement between the CCA and the county included hotel units,” the coalition reported of the lawsuit.
The CCA has already filed a motion for summary judgment in the case, along with motions for sanctions and attorneys fees against the resort and its attorney.
To view the order denying the motion, click on ORDER DENYING MOTION.
– Oral argument on the petition for writ of certiorari is set for Sept. 3 at 1:30 p.m. before Shenko. The CCA, R.L.R. Investments and Royal Shell Vacations, 12 South Seas condominium associations and eight timeshare associations petitioned the court to invalidate the county’s decision to rezone the resort to permit increased density and building heights.
“The county and South Seas have moved to strike a portion of the petition claiming that the court has no jurisdiction over arguments alleging that the zoning approval was inconsistent with the Lee Plan,” Protect Captiva reported
Shenko scheduled a hearing for June 8 on the motion to strike.
To reach TIFFANY REPECKI / trepecki@breezenewspapers.com, please email