A coalition seeking to maintain the longtime building height and density limitations on Captiva recently provided an update on its legal actions.<\/p>\n
On May 26, Protect Captiva reported that it received two \u201cdisappointing decisions\u201d on the same day from the same panel of judges, adding that appeals are likely and one \u201cbig case\u201d is still pending.<\/p>\n
Sixth District Court of Appeal Judge Roger K. Gannam wrote the opinion issued on May 22, which reversed Circuit Court Judge James Shenko\u2019s decision enforcing a 2003 settlement agreement. Shenko\u2019s 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.<\/p>\n
It reported that the court \u2014 which assumed that Shenko\u2019s decision correctly interpreted the agreement as limiting South Seas to 912 units \u2014 held that the county did not have the authority in 2003 to sign an agreement that \u201cprohibits the county from issuing building permits beyond the historical 912-unit density limitation of (the) South Seas Resort District\u201d and prevents the county from increasing density in the future by enacting new zoning ordinances.<\/p>\n
\u201cAccording to the court, the settlement agreement constituted unenforceable \u2018contract zoning\u2019 because the county contracted away its right to increase density in the future,\u201d the coalition reported.<\/p>\n
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.<\/p>\n
\u201cIn 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,\u201d it reported, adding that the court recognized the agreement \u201cmay not meet the common definition of contract zoning\u201d because the CCA is not a developer or landowner, but failed to apply that distinction in deciding the case.<\/p>\n
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.<\/p>\n
\u201cThe 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 \u2014 and was approved by a vote of the Board of County Commissioners at a public meeting,\u201d Protect Captiva reported.<\/p>\n
\u201cIn so doing, the appellate court failed to even mention the Florida Constitution, which prohibits the government from impairing the contract rights of its citizens,\u201d it added.<\/p>\n
The coalition noted that the Florida Supreme Court has called the protection of contracts \u201cfundamental\u201d and \u201csacrosanct,\u201d and a government has only \u201ca very severely limited authority\u201d to \u201celiminate a contractual obligation it has itself created.\u201d<\/p>\n
On the day the opinion was issued, the resort announced its support for the finding.<\/p>\n
\u201cThe South Seas ownership team is pleased with the Sixth District Court of Appeal\u2019s decision reversing the prior trial court ruling and clearing the way for the resort\u2019s continued redevelopment efforts, including plans for a new hotel,\u201d it reported on May 22. \u201cThis decision provides important clarity regarding the resort\u2019s long-approved redevelopment rights and allows South Seas to move forward with rebuilding and reinvesting in Captiva following the devastating impacts of Hurricane Ian.\u201d<\/p>\n
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\u2019s approved rezoning.<\/p>\n
\u201cDevelopment of the new hotel represents a key milestone in South Seas\u2019 long-term vision to restore and enhance the resort while supporting tourism, local jobs, and the economic vitality of Captiva Island and Lee County,\u201d it added. \u201cSouth Seas remains committed to responsible redevelopment that honors the island\u2019s character and resiliency.\u201d<\/p>\n