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 June 25, Protect Captiva reported that the Captiva Civic Association (CCA) has appealed two decisions by the Florida’s Sixth District Court of Appeal.
One reversed a Circuit Court order that enforced a 2003 settlement agreement limiting South Seas to 912 dwelling units. The second affirmed, without a written opinion, the decision of a Florida Division of Administrative Hearings (DOAH) administrative law judge upholding Lee County’s Land Development Code amendments that permitted the resort to seek increased densities and heights.
It reported that the first appeal seeks a rehearing before the panel of three judges or a rehearing before the whole court of 12 judges and for certification to the Florida Supreme Court “because the panel’s decision allowed the county to renege on its 2003 settlement agreement with the CCA by misapplying the concept of ‘contract zoning.'”
“The CCA argues that the panel’s incorrect interpretation of ‘contract zoning,’ at the expense of the CCA’s contract rights, conflicts with other district court interpretations of ‘contract zoning’ and is an issue of broad public importance worthy of Supreme Court review,” the coalition reported.
Protect Captiva reported that the second appeal requests the Sixth District Court of Appeal to issue a written opinion, to grant a rehearing and to certify the case to the Supreme Court.
“The CCA argues that the three-judge panel of the District Court of Appeal wrongly upheld a DOAH ruling that a determination of the amount of development a Land Development Code amendment could allow is not relevant to a proceeding determining the amendment’s consistency with the density limits of the county’s Comprehensive Plan,” it reported.
“In both of these cases, the same three-judge panel of the Sixth District Court of Appeal deferred to Lee County’s efforts to increase density on South Seas, notwithstanding the contract between the CCA and the county limiting density to 912 units and the terms of the county’s Comprehensive Plan requiring the county to ‘maintain the historic low-density residential development pattern of Captiva,’ to ‘continue … existing land use patterns’ and to ‘limit development to that which is in keeping with the historic development pattern on Captiva,'” the coalition added.
To view the CCA’s motions on both, visit click on MOTION TO APPEAL 1 and MOTION TO APPEAL 2.
MOTION TO STRIKE PORTIONS DENIED
A petition for writ of certiorari is set for a two-hour oral argument before Circuit Court Judge James Shenko on Aug. 4 starting at 9 a.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.
“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,” Protect Captiva reported.
On June 5, the petitioners filed their reply brief.
“In an effort to limit the scope of the hearing, South Seas and the county moved to strike portions of the petition, which would have kept the court from a full review of the density limitations of the Land Development Code, which incorporated specific portions of the Lee Plan — and which petitioners claimed were violated in the approved rezoning,” it continued.
Shenko held a hearing on the motion on June 8 and asked both sides to submit proposed orders consistent with their arguments. On June 22, he signed the CCA’s proposed order denying the motion filed by the resort and Lee County.
To view the brief and the order, click on REPLY BRIEF and PROPOSED ORDER.
EFFORTS TO DISQUALIFY JUDGE DENIED
The coalition reported that South Seas continues to claim in a lawsuit pending before Shenko that the 912-unit limit in the 2003 settlement agreement between the CCA and county did not include hotel units — and that the CCA was deceptive in a Legal Update in stating so, despite evidence of that fact.
The resort claimed in both the Circuit Court and the Court of Appeal that Shenko had pre-judged the case and that it could not get a fair and impartial trial.
“South Seas’ efforts to disqualify Judge Shenko have now been rejected twice,” Protect Captiva reported. “The CCA has now filed motions to dispose of the case and seeks sanctions and attorneys’ fees against South Seas and its attorney for bringing a meritless case.”
In summarizing the legal updates, it pointed out that all of the court cases are related.
“If the CCA or the 20 petitioners prevail in any of these cases, the rezoning and increased development on South Seas will require reconsideration — pending, of course, further appeals by the county or South Seas,” the coalition reported.
To reach TIFFANY REPECKI / trepecki@breezenewspapers.com, please email