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 26, Protect Captiva reported that it received two “disappointing decisions” on the same day from the same panel of judges, adding that appeals are likely and one “big case” is still pending.
Sixth District Court of Appeal Judge Roger K. Gannam wrote the opinion issued on May 22, which reversed Circuit Court Judge James Shenko’s decision enforcing a 2003 settlement agreement. Shenko’s ruling had stated that the total number of dwelling units at South Seas was limited to 912 and that no building permits could be issued by Lee County for dwelling units for the resort that would exceed that.
It reported that the court — which assumed that Shenko’s decision correctly interpreted the agreement as limiting South Seas to 912 units — held that the county did not have the authority in 2003 to sign an agreement that “prohibits the county from issuing building permits beyond the historical 912-unit density limitation of (the) South Seas Resort District” and prevents the county from increasing density in the future by enacting new zoning ordinances.
“According to the court, the settlement agreement constituted unenforceable ‘contract zoning’ because the county contracted away its right to increase density in the future,” the coalition reported.
Protect Captiva explained that contract zoning is unlawful because it substitutes a public hearing process with a contract between a county and private developer to rezone its property.
“In this case, there was a public hearing process in 1973 that rezoned South Seas and limited it to 912 units, and the Captiva Civic Association (CCA) was not a developer seeking to rezone its property,” it reported, adding that the court recognized the agreement “may not meet the common definition of contract zoning” because the CCA is not a developer or landowner, but failed to apply that distinction in deciding the case.
The coalition continued that the court also failed to recognize that the county did not contract away its authority, but exercised its authority in enforcing the 912-unit density limit that was the condition upon which the resort was constructed and which purchasers of the South Seas properties relied for decades.
“The appellate court invalidated a settlement agreement that was reviewed and signed by separate attorneys for Lee County, CCA, South Seas and then by a mediator and the judge — and was approved by a vote of the Board of County Commissioners at a public meeting,” Protect Captiva reported.
“In so doing, the appellate court failed to even mention the Florida Constitution, which prohibits the government from impairing the contract rights of its citizens,” it added.
The coalition noted that the Florida Supreme Court has called the protection of contracts “fundamental” and “sacrosanct,” and a government has only “a very severely limited authority” to “eliminate a contractual obligation it has itself created.”
On the day the opinion was issued, the resort announced its support for the finding.
“The South Seas ownership team is pleased with the Sixth District Court of Appeal’s decision reversing the prior trial court ruling and clearing the way for the resort’s continued redevelopment efforts, including plans for a new hotel,” it reported on May 22. “This decision provides important clarity regarding the resort’s long-approved redevelopment rights and allows South Seas to move forward with rebuilding and reinvesting in Captiva following the devastating impacts of Hurricane Ian.”
The ownership team continued that no judgment exists against the resort, and the ruling enables Lee County to proceed with issuing building permits consistent with the county’s approved rezoning.
“Development of the new hotel represents a key milestone in South Seas’ long-term vision to restore and enhance the resort while supporting tourism, local jobs, and the economic vitality of Captiva Island and Lee County,” it added. “South Seas remains committed to responsible redevelopment that honors the island’s character and resiliency.”
To view the appellate court’s decision, click on APPELLATE COURT DECISION.
DOAH APPEAL DENIED
Protect Captiva reported that also on May 22, the same panel of judges denied the CCA’s request for oral argument in the appeal of the administrative law judge’s decision in the Florida Division of Administrative Hearings (DOAH) case and then “affirmed per curiam” the judge’s decision without a hearing nor a written decision. The CCA’s attorneys are deciding how best to respond.
REZONING PETITION PENDING
It reported that the petition for writ of certiorari remains scheduled for oral argument before Shenko on Sept. 3 at 1:30 p.m. The CCA, R.L.R. Investments and Royal Shell Vacations, 12 South Seas condominium associations and eight timeshare associations petitioned the court to “quash” (invalidate) Lee County’s decision to rezone the resort to permit increased density and building heights.
The reply brief by petitioners is due on June 5.
“If petitioners prevail in this case, all of South Seas will continue to be governed by the 1973 rezoning resolution and the administrative interpretation, which limits both density and building heights to their historical limits,” the coalition reported.
To reach TIFFANY REPECKI / trepecki@breezenewspapers.com, please email