Is county practicing development deceit?
Editor’s note: The word “fraud” used in the title and first paragraph has been revised to “deceit” to match an updated version of the letter that was submitted by the writer.
To the editor:
The title to this letter is a question, not an assertion. The question is prompted by a pattern of behavior by Lee County concerning the post-Hurricane Ian redevelopment of South Seas on Captiva. What follows is an examination of a series of county actions and statements that, without explanations to the contrary, give the appearance of deceit.
“Deceit” for our purposes will be broadly defined here as willful misrepresentation or concealment of truth, facts or intentions in order to achieve an end. The instances of county behavior in question will be presented in roughly chronological order and — since they’re adding up — numbered for ease of reference.
1) Last year’s changes to the county’s Land Development Code, granting special exemptions for South Seas from long-standing density and height limits, had an incongruous beginning. County Commissioner Kevin Ruane, whose district includes Captiva, became concerned in the hurricane’s aftermath that new federal/state rules could result in a reduction of habitable space for homeowners as they rebuilt. For example, if ground-floor pass-throughs needed to be higher, yet the overall structure could not be correspondingly taller, that could squeeze living space, shrinking the rebuilt home’s total living area. Ruane requested that county staff examine local code and if necessary recommend modifications to make certain this subtraction would not occur.
The intent and scope of Ruane’s proposal was specific and limited, yet the upshot — singling out South Seas for special exemptions from Captiva’s density and height limits — strayed far away from the original mandate. The incongruity of this departure from the stated task was pointed out by two legal analyses commissioned by Protect Captiva, the coalition formed to oppose the changes. Holland & Knight, one of the largest law firms in the country, and Richard Grosso, a Sanibel-based lawyer specializing in local land use issues, both emphasized the extraneous nature of the exemption grants. An exasperated Ruane also publicly and repeatedly objected to the exemptions as being unrelated to the purpose of a project he initiated.
If Ruane felt deceived that his purpose (to preserve habitable space for rebuilt structures) had been hijacked to instead grant unique development privileges to the resort on Captiva, that is understandable. In his own words, he found the subterfuge “offensive.” To this day the county has not identified any nexus between preserving habitable space for hurricane victims as they rebuild, and singling out a property owner for special treatment afforded to no one else.
2) The county packaged the habitable space provisions and the South Seas density and height exemptions together into one ordinance, whose legislative purpose was stated to be disaster resiliency. The ordinance does not elaborate how or why denser, taller development for the resort would be inherently more resistant to the destructive winds and storm surges of a major hurricane. Nor have county representatives attempted an explanation, instead relying on a naked repetition of what appears to be an obvious falsehood.
Typically there are two measures localities take in rebuilding after a major hurricane. To survive storm surge, ground-floor pass-throughs are made taller, with strengthened pillars to resist buckling against the force of the water flow. To survive wind damage, structures are hardened, from reinforced foundations and shear-framing to armoring all exterior surfaces.
Localities do not authorize taller and denser redevelopment after hurricane damage because that predictably increases the likelihood of even greater damage from the next major hurricane. Taller structures, like taller trees, are vulnerable to wind damage, because structural integrity diminishes and wind velocities increase with elevation. Denser development — aka congestion — plays havoc with evacuation and emergency response. This is especially true for South Seas, at the end of a two-lane cul-de-sac stretching 18 miles from the resort through Sanibel to the causeway. The road is decried as an endless bottleneck under the best of circumstances.
Last autumn the state’s community planning agency lambasted the county’s resiliency ruse as a “false flag” intended to deceive the public, while its true purpose was to increase development at South Seas. The state, in so many words, accused the county of fraudulently portraying the resort’s new density exemption as part of an effort to enhance disaster resiliency.
The county response to the state did not address the criticism that increased density was masquerading as increased resilience. Instead it contended that the state agency had no jurisdiction to review the county’s proposed code changes in the first place, and that the derogatory comments should be withdrawn and disavowed. The state — and the public — are still waiting to hear how density increases resiliency.
The county should also explain how, if density enhances resiliency, that only applies to South Seas. If density is such a boon to disaster resiliency, wouldn’t it have made more sense for the county to remove density limits for all of Captiva, not just the resort? Why didn’t the county think of that? Without an explanation, we must ask: Is it because the county, in order to grant special privileges to a property owner, ginned up resiliency as its cover story?
3) A variety of county representatives, in numerous presentations at public meetings, in written response to state criticism as well as correspondence with Grosso, have repeated a quizzical reassurance: that despite appearances, the new ordinance would not in fact affect density at South Seas or Captiva.
The problem with those promises is that they are demonstrably false. Grosso, in a recent petition to the state, called such assurances “sophistical.” That is putting it kindly. The density exemptions for South Seas in the new Land Development Code amendments could not be more explicit or unambiguous. And based on those crystal-clear exemptions, the resort promptly submitted permit applications for redevelopment that would dramatically increase density.
It should be noted that the county has been repeatedly making incompatible assertions: that density exemptions for South Seas are needed to enhance resiliency, yet density would not be affected after all. The county needs to address how it can remove density limits for South Seas, deny any specter of increased density, and process a permit application that entails — what else? — markedly increased density. Are we not passing through the looking glass here?
4) The Captiva Civic Association, principal sponsor of the ad hoc Protect Captiva formed last year to oppose the new South Seas exemptions, actually has a long history of legal sparring with the county and South Seas over the very same issue: exactly how much development should be allowed at the resort. In fact, 21 years ago the CCA, county and South Seas filed a three-way legal settlement with the county circuit court, agreeing to maintain the established three-units-per-acre density limit for the resort. Because South Seas has 304 acres, that meant full buildout would total 912 units. The operative clauses of the 2003 settlement are unequivocal: “The total number of dwelling units on South Seas Resort is limited to 912. No building permits may be issued by County for dwelling units within South Seas Resort that will cause that number to be exceeded at any time.”
Despite the clarity of the agreement, and its finality (“at any time”), the county proceeded last autumn to pass new legislation that exempts the resort from any density limits whatever. It is now considering the resort’s redevelopment application, which would result in an approximate tripling of the settled three units per acre to almost nine units per acre. I have failed to discover within the county’s documents or public meeting videos and synopses, spanning many months, any mention of the existence of its legally binding 2003 settlement with the CCA prohibiting any resort density increases. That agreement makes the county’s current review of resort plans for increased density a prodigious waste of time.
If the county didn’t mention or discuss the settlement, there appear to be two possible explanations. First, it may have been an oversight, for county personnel not to have been aware of a dusty 21-year-old agreement made long before their time. It is possible — given the state of government records — that a document search of county files pertaining to the resort would fail to discover a legal settlement that made news in its time. Call it institutional amnesia.
Second, it is also possible that the county has been aware of the settlement all along, or learned of it during the legislative process, but chose not to reveal its existence, or publicly discuss its relevance to the code amendments. Alternatively, it could have even been the discovery of just one or more county employees, who chose to sweep the 21-year-old dust under the carpet, hoping no one would find it.
In any case, the county needs to explain why it spent months planning and eventually authorizing a density exemption for South Seas that it previously agreed is legally prohibited, without revealing the existence of the controlling settlement, much less publicly discussing its impact on county decision-making.
5) Protect Captiva recently filed a complaint with the county circuit court, seeking relief in the form of a declaratory order. It asks that the court affirm the 2003 settlement’s enforceability, and bar the county from permitting any South Seas’ redevelopment that exceeds the agreed 912-unit buildout limit.
The county may have seen this coming a long ways off, because a year ago it front-loaded a workaround argument that would allow more than 912 units. Its contention is that the buildout limit, in existence for more than a half-century, should never have included hotel rooms, and that nowhere else in unincorporated Lee County are hotel rooms counted as density.
Any attempt to argue further, that South Seas’ 912-unit buildout limit not only shouldn’t but doesn’t include hotel rooms, would be destined to fail. All evidence surrounding the South Seas owners’ 1973 application for the 912-unit buildout limit demonstrates their understanding and intention that the count would include hotel rooms. For a more recent reductio ad absurdum argument, a past state director of community planning testified before his old department this month that if the limit didn’t include hotel rooms, the new ordinance could potentially allow more than 2,500 hotel rooms to be built at the resort, when pre-Ian there were only 107 hotel rooms.
Another fly in the ointment for the county is that while it attempts to remove any limits on South Seas’ hotel room density, it retains the pre-existing hotel room density (three units per acre) for all other Captiva properties. The issue of South Seas exceptionalism arose in #2 above, and here it is again. If the county believes hotel rooms shouldn’t be counted as density for South Seas, why continue to enforce a strict hotel room density limit on everyone else?
Double standards aside, the incontrovertible refutation of any suggestion that hotel rooms weren’t counted as density is provided by a document the county created in 2002, only months before the CCA/county/South Seas settlement agreement. The 2002 document (ADD2002-00098) was designed to organize and memorialize agreements on the development of the resort since 1973, including the 912-unit buildout limit, and govern future development.
That document (pp. 9-11) provides an exhaustive list of what units are included in the 912-unit buildout limit. The list is actually repeated twice, and in both instances, the 107 hotel rooms are specifically and unmistakably included within the 912 units. Nothing in the document suggests otherwise.
The facts notwithstanding, early in the process the county indicated its intended reliance on a 912-unit limit that didn’t count hotel rooms. A few days after passage of the ordinance in December, South Seas submitted a redevelopment application that asked for 272 new condos, the exact number of rebuildable units possible under the 912-unit cap (replacing the 247 demolished hotel and resort employee units, plus 25 never-used density credits). As for hotel units, which the county contends should not be counted toward density, South Seas asked for more than quadruple the pre-Ian number (from 107 to 435). Still, at the end of the day, we can expect the 2003 settlement to enforce a strict 912-unit buildout limit that includes hotel rooms, as it always did.
6) The purpose of the county’s 2002 document, ADD2002-00098, was to provide a one-stop repository consolidating South Seas permits and agreements up to that point in history, and to govern future development at the resort consistent with that history. Permits ever since have been required to follow its strictures.
The county is now attempting to artfully disembowel ADD2002-00098, while leaving it on the books as window dressing. First, conformity to ADD2002-00098 was deleted from a crucial code clause governing resort development. Then the county explained that South Seas still had to follow its terms, unless the resort applied for a rezoning, and after a public hearing and due consideration, the county decided it didn’t have to follow its terms. In other words, ADD2002-00098 governs, until the county says it doesn’t. Its provisions, once mandatory, are now no more than advisory.
7) The Federal Emergency Management Agency has a 50% Rule, which means that if the cost of repairs to a structure is determined to be half or more of the property’s market value, it is “substantially damaged” and the entire structure needs to be rebuilt to current floodplain regulations. State and local correlates of the 50% Rule mean the structure will also have to conform to all of their current building standards. Conforming to current federal, state and local building regulations often means demolishing the structure and rebuilding anew from the ground up.
Given the life-changing consequences of a 50% ruling, one would expect government to exercise great diligence in its application, but that isn’t so. For a recent example that beggars belief, FEMA learned only last year that in Florida a longtime permanent resident’s home will typically be assessed well below its current market value. FEMA came to learn what for Floridians is common knowledge only after sending Lee County a letter accusing it of failing to uniformly tax homeowners.
More often it isn’t the incompetence of government, but its attitude toward rebuilding that influences application of the 50% Rule. Some in government may harbor an agenda — that rebuilt structures should not remain below current standards — which encourages them to apply the 50% Rule. On the flip side, others in government might be sympathetic to the sometimes catastrophic financial consequences of the 50% Rule for property owners, and hesitate to apply it. In any case, there is always leeway in applying the 50% Rule.
One type of leeway might explain the odd way the 50% Rule was applied to structures at South Seas after Ian. Much of the property within the resort is not owned by the resort (condos and timeshares). Many of the condo and timeshare buildings occupy the most vulnerable, Gulf-front locations at the resort. Anyone who’s ever experienced a hurricane knows that buildings in the front row, facing the sea, take the worst beating. Even being one row back can make quite a difference.
All the Gulf-facing condo and timeshare buildings were determined to require repairs costing less than 50% of their market value, and all have been repaired. On the other side of the island, the resort’s hotel did not face the Gulf. It was on the bayside, facing the Pine Island Sound, its back to the onshore winds. Repairs to the hotel were determined to cost more than 50% of its market value, so it was demolished.
The hotel, condo and timeshare buildings — all of similar age, design, materials and construction standards — were built by the same developer. Two smaller buildings next to the hotel still stand: the harbormaster’s office, which was back up and running shortly after Ian, and the Harbourview Restaurant. A number of other resort-owned buildings were determined to have failed the 50% test. They’re all flattened and gone now.
Hurricanes can be very capricious, destroying one structure while leaving its neighbor relatively unscathed. Hurricanes are not, however, selective. Ian did not pick-and-choose its way through South Seas, finding resort-owned buildings to cripple beyond 50%, while sufficiently sparing non-resort-owned structures so they could be repaired. It is difficult to avoid the suspicion that it was not the hurricane doing the choosing.
There may be a reasonable explanation for the fact that many of the resort-owned buildings failed the 50% test, while non-resort-owned buildings passed. Without an explanation, one must ask: Did an appetite to rebuild the resort to a greater density cause selective application of the 50% Rule? Destroying the hotel and other resort buildings is undoubtedly a giant first step — a clearing of the deck — toward approving a rebuilt South Seas of greater densities and heights.
Patterns of behavior are important in evaluating the appearance of deceit. One example of apparent deception can be the result of a misunderstanding or miscommunication. In this case, we begin with South Seas density and height exemptions being extraneously shoehorned into an unrelated policy pursuit. The resulting ordinance pretends that increased density and unprecedented heights at the resort, but apparently not at any other properties, would contribute to disaster resiliency. Throughout the process county representatives consistently deny the obvious, that South Seas’ density potential is very much increased by the code exemptions.
To top it off, months of public meetings apparently never reveal that the county is bound by a court settlement barring any increases in South Seas’ density. The county attempts to sidestep the density limit by declaring that hotel units shouldn’t be included in the count, and resort owners apply accordingly. The longstanding governing document for the resort that contradicts the county’s wishes is duly eviscerated, left on the books but toothless. Finally, by all appearances the 50% Rule is selectively applied, permitting repairs to non-resort-owned buildings while condemning resort-owned buildings, an important prelude to approving sweeping density and height increases for a wholly reconfigured resort.
It is a tenet of good government that any appearance of official impropriety should be addressed and corrected, in order to preserve the public’s trust. Concerning South Seas’ redevelopment, adverse appearances undeniably exist. A gaslighted public will not be convinced the process is above-board, unless the county resolves the numerous credibility issues it has created for itself.
Don Bacon
Montara, California