The illusion of victory
To the editor:
Over a five-week period, Lee County held no less than seven public hearing sessions on South Seas’s redevelopment application, with more yet to come. It’s taking that long because so many individuals stepped up to deliver over 30 hours of compelling public testimony, detailing the myriad reasons the application should be denied.
Don’t expect that to happen. During the proceedings, the hearing examiner tipped her hand more than once, telling speakers she’s most interested in conditions that might be imposed on the application. It would be surprising if an at-will examiner were to recommend denial, contradicting both the county’s planners — who recommend approval — and the commissioners, whose 2023 ordinance specifically enabled the application’s proposed drastic increases in resort density and building heights.
The fly in the ointment is the circuit court’s recent order limiting the resort to its historic density of 912 total units, based on a longstanding settlement agreement between the Captiva Civic Association (CCA) and the county. Unless the order is overturned on appeal, South Seas will need to carve 356 units out of its proposed redevelopment. The resort will also need to rethink some of the redevelopment that has already begun, such as the new water park going in next to a site slated for a second hotel that might not get built.
Good news, right? Not even close. Assuming the 912-unit-limit survives judicial appeal, the resort will still be allowed to build 272 new units, which is 165 more guest units than pre-existed Hurricane Ian. What they would build (given “only” 272 units, not 628, as they hope) remains to be seen. But we’ll chart out the most profitable path they could follow, and assume we’re not far off.
Before Ian, the resort had 107 hotel rooms. Now, the resort will have those hotel rooms, plus in all likelihood 165 new three-bedroom condos (the most profitable property type and size). That’s 495 new bedrooms (165 multiplied by three); along with the 107 hotel rooms, the resort will have a total of 602 bedrooms. Under this scenario, it will enjoy a 563% increase in guestroom accommodations over pre-Ian capacity.
It’s very important for everyone who opposes the hyperdevelopment of South Seas to recognize that an increase of 165 new condos, with 495 total new bedrooms (the “best” outcome given the circumstances), would be a huge, crushing defeat for Captiva. For comparison, ‘Tween Waters Island Resort & Spa — the only resort on Captiva with more capacity than South Seas — has 137 rental units. Some have more than one bedroom, so its total bedroom count is about 150. Adding almost 500 new bedrooms at South Seas would be the equivalent of adding three new resorts on Captiva, each one of them larger than ‘Tween Waters. Think about it: the least increase in capacity we can look forward to adds more than triple that of the largest resort on Captiva, all stuffed into South Seas. Under our best-case scenario, the only party that should take a victory lap is the resort.
Wait: why does South Seas get to build 165 new condos? Because they demolished 140 employee housing units, which the county doesn’t care about rebuilding; plus, the county is giving the resort 25 unused density credits to complete the 912-unit cap. Despite the county’s governing document for the resort categorically requiring employee housing units, there was no indication in the public hearings that anyone intends to fight for them. So compact employee dorm rooms will get replaced by expansive multi-bedroom condo villas, one for one.
Whether the resort gets the full monty (628 new units) or “only” 272 units, the legendary charm of South Seas our family enjoyed for hundreds of days and nights over the decades is clearly a thing of the past. The barbarians are within the gates. The question now is how much havoc and thoughtless development the county will permit the resort to create.
South Seas’ application conspicuously lacks mitigation for increased parking demand and traffic congestion — perennial problems all across the resort, Captiva and Sanibel — that will exponentially worsen with significant new development. In the absence of a plan, the resort is peddling the fantasy that their guests will not come-and-go during their stays, a preposterous assertion county planners seem to have swallowed.
The resort’s classic golf course was destroyed so that condos could occupy its Gulf-front acreage. It was replaced by a pitiful pitch-and-putt, with a large, ugly maintenance building and materials yard plopped into one of the most visible locations in the entire resort. Evaluating sites for their appropriate uses, considering impacts on adjacent properties, design review of proposed structures — are these practices unfamiliar to county planners?
They approved a beachfront restaurant — speedily built — with zero setbacks from the only roadway access easement owners and residents have to the beach and Gulf. County code requires the restaurant to have a landscape privacy buffer separating it from the roadway. The planners knew this, but decided not to require the setback and privacy landscaping.
Having approved a wrongly sited restaurant, planners now propose to compound their wrongs by having the applicant plant trees within someone else’s roadway easement. To cover their tracks, they’ve clumsily rechristened the roadway a “landscape easement.” It is in fact the only roadway the elderly, or the infirm, or the very young — anyone who needs a ride — can use to access the beach and Gulf. The county would have the resort arrogate the easement to itself as a surrogate landscape buffer, and use the remaining area for restaurant parking and vehicular/pedestrian access to its entrance, which directly abuts the roadway easement. The easement holders’ property rights are apparently not even an afterthought.
The only way the newly-built, wrongly-sited restaurant can conform to code and property law is through relocation. But does anyone seriously believe the county would ever require that of the resort? The restaurant will only be properly sited if the easement holders and/or the adjacent homeowner go to court to defend their property rights.
A NEW STRATEGY
How could these land use travesties — which are in their early stages and can be expected to multiply over time — have been entirely averted? How could the resort have been rebuilt after Ian in a resilient, tasteful way that conformed to its traditional development configuration? It’s been painfully obvious from the outset that the county and resort’s endgame is and always will be hyperdevelopment.
For that reason, in the course of conversations and correspondence with CCA leaders (who created the Protect Captiva coalition to spearhead opposition to the county/South Seas onslaught) I proposed the following in September of 2023, more than 18 months ago:
“I wonder how the locals would feel about cutting the Gordian knot by annexing to Sanibel … I see that Florida statutes require, if at least 70% of the acreage proposed to be annexed is owned by persons or entities not registered locally to vote, that owners of at least 50% of the total acreage must first consent to an annexation vote. The actual annexation vote canvasses local registered voters only, and requires simple majority approval. Sanibel would have to first hold two meetings to authorize the special election, then wait 30 days before holding it. All in all, a pretty compressed timeline that could throw the county and Timbers quite the curve ball. Who knows, maybe there are technical reasons this wouldn’t work. But if it did, a very tidy solution.”
I received no response to my recommendation.
In February, I proposed annexation in a letter to the editor to this newspaper. Prior to submission, I sent a draft to the same CCA leaders, one of whom responded by quoting the 70%/50% rule, to pour cold water on the idea. The respondent apparently didn’t remember that I had cited the same rule in our prior correspondence. I replied in the following way:
“I’m aware of this provision. If it applies, I don’t see why it would be an insurmountable obstacle. Take South Seas, for example. The resort owns 120 out of 304 acres, less than 40% of the resort. The resort associations would vote in favor, cancelling out Timbers’ vote against. The big landowners, like Royal Shell, ‘Tween Waters, Jensen’s, McCarthy’s, etc. (even CCA!), if they’re on board, gets you over 50% easily enough. I have no indication that Captivans, whether property owners or voters, are happy under the county’s thumb.”
Again, I received no response to my recommendation.
CITY OF SANIBEL/CAPTIVA
Let’s imagine, as a hypothetical, that it’s the city of Sanibel/Captiva — not Lee County — that governs South Seas and considers its post-Ian redevelopment application. What would predictably occur?
– Sanibel/Captiva would not approve any application that asked for more than 912 total resort units.
– Sanibel/Captiva would not approve any application that asked for rebuilt structures to add additional habitable floors, either within or outside the resort.
– Sanibel/Captiva would require that South Seas rebuild the 140 employee units, to make a dent in the housing shortage for island workers, and lessen daily commuter traffic to and from the islands.
– Sanibel/Captiva would not have allowed the demolition of a superficially damaged Harbourside Hotel, or any other resort structures not substantially damaged.
– Sanibel/Captiva would not allow new construction seaward of the 1991 Coastal Construction Control Line on undeveloped properties, unless no development footprint landward of the line was feasible.
– While the resort’s master redevelopment plan was being considered, Sanibel/Captiva would not issue building permits for elements of the master plan unless and until the entire plan is approved. The county, on the other hand, hastily issued piecemeal development orders for the pitch-and-putt and its buildings, the beachfront restaurant, and the water park, in order to present the master plan as a foregone conclusion. Sanibel/Captiva would observe the land use dictum that with a master plan, nothing is approved until everything is approved, so that all the pieces of the development puzzle fit together as one unitary whole.
DIVORCING COUNTY, REMARRYING: HOW CAPTIVA WINS
The CCA’s reluctance to consider annexation to Sanibel is understandable. It has held the fort for almost a century, ably protecting Captiva from overdevelopment. I have the utmost respect for the organization’s many dedicated supporters and the excellent work they’ve accomplished.
Nevertheless, we need to acknowledge that the county/South Seas juggernaut presents an unprecedented threat to the future of Captiva. The sustained severity of the attack — with consequences to the community so extreme and permanent — is such that it can’t be fully countered by the type of resistance the CCA is waging, no matter how capable. Earlier in this letter I explained how the best result we can currently hope for is actually quite terrible. Let’s now zoom out, for some big-picture context.
When governmental and corporate forces combine their powers, as they have here, to overwhelm a small community and impose their will, the struggle quickly becomes very asymmetric. One side has much more objective strength and wherewithal than the other. In a David-and-Goliath contest, the objectively weaker party must think and act outside the box in order to have any chance of prevailing.
The CCA (through its Protect Captiva coalition) has instead followed a conventional approach, signing petitions, attending meetings, gathering money, hiring lawyers and experts, filing lawsuits. All very noble, but as outlined above, the best outcome a conventional approach can achieve in this situation is the illusion of victory, where after Protect Captiva spends a million dollars, and even wins in court, South Seas still gets to dramatically expand its resort.
In my opinion it has been an error in judgment not to realize early on that the stakes in this conflict are so high, the only way Captiva is guaranteed to escape the county/South Seas maw is to join Sanibel. Without a paradigm shift, the only question is how badly Captiva loses in dealing with the county and resort, now and in the future.
The contest between Captiva and the combined forces of the county/South Seas is ongoing, with no end yet in sight. There is still time for the CCA and its allies to cut the Gordian knot, and swiftly kickstart the annexation process. Of course this would not be to the exclusion or de-emphasis of any of the current resistance efforts afoot, or new avenues of opposition the future may offer; on the contrary, an all-sided campaign to protect Captiva should proceed at full-bore.
There is however a crucial distinction between the two strategies. So far the remedies sought have been primarily legal, yet one of the most critical planning issues is not clearly justiciable. Does anyone think a legal case can be made that the county must require the rebuilding of all — or any — of the employee housing? Courts are inclined to grant local government wide discretion to decide the details of development as it sees fit. When the county allows demolition of 140 employee dorm rooms, to be replaced by 140 oversized luxury condos, with triple the number of bedrooms, so shall it be. That one decision creates the equivalent of more than three new ‘Tween Waters, packed like sardines into South Seas, and it’s all perfectly legal.
Annexation, in contrast, is a political remedy that doesn’t require the permission of the courts or the county. With the consent of the Sanibel City Council (a virtual certainty), if property owners of more than 50% of Captiva’s acreage authorize the election, and a simple majority of Captiva voters approve the annexation, it’s done. Captivans — without the extraordinary expense, time and uncertainty of court cases — will have taken their island’s future out of the county’s hands. And it’s all perfectly legal.
There are other arguments in favor of annexation, some of which I touched upon in my February letter to the CCA leader:
“Timbers is estimating their new valuation will be several hundred million dollars. Taxes from them alone would be a staggering sum for Sanibel (and Captiva, if annexed) to receive every year. And consider the rest of the island’s (Captiva’s) assessed values. Do you believe that the money taken off your island into county coffers is returned to you in services? Quite the opposite. The money being taken from you is the money they are spending to hyperdevelop your island.
“I’ll ask and answer the basic question for yourself and fellow Captivans: Are you happy with the way you are governed? Of course you aren’t. And yet you’re very lucky, because your adjacency to Sanibel gives you a ready and willing alternative. Captiva couldn’t survive as a standalone municipality, but attached to Sanibel, no problem.
“Through CCA and allied SanCap groups, you’ve already built the organizational apparatus to accomplish annexation, at a time when a development battle royale has primed the population for change. I know how badly you want to win this battle; the cement of victory will be to turn the tables on the county, and be done with them forever. It would be a handsome legacy for you to give to your community and island.”
Don Bacon
Montara, California