Decision shreds property, conversation right
To the editor:
If you need heart surgery, you go to a specialist, not a general practitioner. Your GP would need to watch a few YouTube videos and wing it. Thank goodness for medical specialists.
We’re not so lucky when we seek justice in an ordinary court of law, where judges are general practitioners, their dockets choked with a bewildering breadth of cases from many different and complicated arenas of law. In bench trials and appellate proceedings, which have no juries, judges hear cases from lawyers who typically specialize in the issues at hand. Not experts themselves, judges rely on their staff (also generalists), statutory and case law, any amicus briefs, their instincts, and in today’s world, probably AI. The absence of judicial specialization sometimes results in elementary errors of legal reasoning.
That happened last month, when a three-judge panel of the Sixth District Court of Appeal invalidated a 2003 settlement agreement between Captiva’s South Seas resort, the Captiva Civic Association (CCA) and Lee County that had been upheld at trial in 2025. The brief, eight-page opinion commits some of the errors I warned against in a letter to the editor published on July 9, 2025, in the Island Reporter. Above all, it crucially neglects to consider the issue’s determining factor: that the resort itself decided to restrict its own future density.
Readers may recall that the 2003 settlement agreement prohibited the county from ever approving more than 912 total units at South Seas. After Hurricane Ian, the new resort owners chafed at the limit as they planned their rebuild. In 2023 the county rezoned the resort to a greater density without (to my knowledge) ever publicly mentioning the existence of the settlement agreement. The CCA then sued to uphold the agreement and won summary judgment, now reversed. The appellate decision not only gets the settlement agreement wrong, it threatens to unleash the law of unintended consequences upon all Florida property owners.
The centerpole of the appellate judgment is that the 2003 settlement agreement was an example of an illegal practice called “contract zoning.” Before nailing down the meaning of this often-elastic term of art, it should be pointed out that both Lee County (“…CCA is technically correct that its contract falls outside the literal definition of ‘contract zoning’…”) and the appeals opinion (“…the settlement agreement here may not meet the common definition of contract zoning because the Association [CCA] is not a developer or landowner…”) admit that the settlement agreement isn’t actually contract zoning. However, the judges aver it “…violates the same principle that invalidates contract zoning…,” which in their opinion is that it “…contract[ed] away the exercise of its [Lee County’s] police powers.”
There are multiple confusions here, but let’s start by defining contract zoning. Any development application should be evaluated solely on its conformity to applicable land use policies and regulations. Sometimes the permitting agency agrees to accept extraneous benefits from the applicant in return for approving the development. Sometimes the agency demands the extraneous benefits, which former Supreme Court of the United States Associate Justice Antonin Scalia aptly termed “extortion.” In either case, a quid pro quo between developer and agency has effected the approval, not the application’s conformity to policies and regulations. That is contract zoning, and it’s illegal.
Such deal-making doesn’t have to occur behind closed doors. Sometimes it happens quite openly, in the course of public hearings. And contract zoning doesn’t necessarily mean that an agency has lessened or given away its police powers. A government agency can retain all its regulatory powers while receiving extraneous benefit, in return for approving a development for reasons other than conformity to policies and regulations. If your development application checks all the boxes, but the planning authorities would also like a suitcase of cash, picking your pocket doesn’t diminish their police powers. It is important to de-couple contract zoning from a forfeit of police powers: they’re two different things, and one can occur without the other. The judges are incorrect in stating that the principle prohibiting contract zoning is the forfeit of police powers. The practice is illegal because it grants development on the basis of a quid pro quo, an exchange of benefit.
In the case at hand, as both the county and judges felt compelled to admit, the 2003 settlement agreement wasn’t in fact contract zoning. The appellate opinion nevertheless repeatedly tars the agreement with that brush, despite its lacking all of contract zoning’s defining characteristics. The brief document makes (by my count) 16 references to an illegal practice that has no bearing on the case. Contract zoning, it would appear, is a red herring.
The agreement’s real sin is that it deprived the county of its exercise of police powers, namely, freedom to regulate future development density at South Seas. This is where the appellate decision flies off the rails, because it never acknowledges the determinative fact that it was South Seas — the property owner itself — who decided to make permanent the long-standing limitations on the resort’s development. That changes everything. Neither Lee County nor the judiciary had the authority in 2003 (or today) to lawfully abrogate the resort ownership’s exercise of its right to permanently restrict development on its own property.
The best the county could have done in 2003, if it had objected to the resort’s decision to make permanent its existing density limit, would have been to refuse to sign the settlement agreement. In that case, the resort could have proceeded without the county’s blessing to limit its own density and settle separately with the CCA, leaving the county out of the agreement and mooting its involvement. The resort did not need the county’s agreement or approval to limit its own density.
The appellate judges are of an opposite opinion. They believe that consent is both required yet unattainable, because government cannot lawfully agree to any permanent (or anything more than temporary) property restrictions that would curtail its future regulatory powers. Since they deny South Seas’ right to restrict its own future development, as expressed in the settlement agreement, by extension their prohibition would apply to all other Florida property owners. Therefore, according to the logic of the opinion, any effort by any property owners to permanently (or more than temporarily) restrict development on property they own is legally void. This is a pernicious error that threatens to strip a fundamental property right from all owners of Florida real estate.
Police powers are not unlimited, and do not extend to prohibiting property owners from placing a variety of easements, covenants or restrictions on their own real estate. The only people on the planet in 2003 who could permanently limit South Seas’ development to 912 total units, and negate the possibility of any future re-zoning to the contrary, were its owners. And no one else on the planet, then or now, could lawfully stop them from doing so. The exercise of that property right was not, and is not, at the discretion of government. Like our other civil rights, property rights are not something one needs to seek permission from the government in order to exercise.
My letter from last year described in detail how the resort’s decision to restrict its own future development conforms with the statutory definition of a conservation easement. While the settlement agreement didn’t use the words “conservation easement,” it didn’t need to, as it is an exact functional equivalent. Quoting from Florida Statute 704.06, one of the purposes of a conservation easement is “maintaining existing land uses” that “limits construction or placing of buildings.” “Conservation easements are perpetual, undivided interests in property and may be created or stated in the form of a restriction, easement, covenant, or condition in any deed, will, or other instrument executed by or on behalf of the owner of the property…Conservation easements shall run with the land and be binding on all subsequent owners…enforced by injunction or proceeding in equity or at law.”
If the appellate opinion were to stand and serve as precedent, every conservation easement in the state would be jeopardized, because they all restrict — in perpetuity — police powers to regulate future development. Ironically, that would include all the millions of acres of public lands with conservation easements that the state itself owns, often purchased from private parties with conservation easements already in place. On all those lands Florida has permanently tied its hands, forever restricting its police powers to freely regulate future development, an action the appellate opinion finds unlawful. Finally, using the same reasoning, any other easement, covenant or restriction Florida property owners place on their real estate could be abrogated, because they all in some way limit government’s police powers to regulate property development. These are absurd results, and reason far beyond the case at hand to reverse such a dangerous decision.
Don Bacon
Montara, California