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 June 25, Protect Captiva reported that the Captiva Civic Association (CCA) has appealed two decisions by the Florida\u2019s Sixth District Court of Appeal.<\/p>\n
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\u2019s Land Development Code amendments that permitted the resort to seek increased densities and heights.<\/p>\n
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 \u201cbecause the panel\u2019s decision allowed the county to renege on its 2003 settlement agreement with the CCA by misapplying the concept of \u2018contract zoning.’\u201d<\/p>\n
\u201cThe CCA argues that the panel\u2019s incorrect interpretation of \u2018contract zoning,\u2019 at the expense of the CCA\u2019s contract rights, conflicts with other district court interpretations of \u2018contract zoning\u2019 and is an issue of broad public importance worthy of Supreme Court review,\u201d the coalition reported.<\/p>\n
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.<\/p>\n
\u201cThe 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\u2019s consistency with the density limits of the county\u2019s Comprehensive Plan,\u201d it reported.<\/p>\n
\u201cIn both of these cases, the same three-judge panel of the Sixth District Court of Appeal deferred to Lee County\u2019s 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\u2019s Comprehensive Plan requiring the county to \u2018maintain the historic low-density residential development pattern of Captiva,\u2019 to \u2018continue \u2026 existing land use patterns\u2019 and to \u2018limit development to that which is in keeping with the historic development pattern on Captiva,’\u201d the coalition added.<\/p>\n
To view the CCA\u2019s motions on both, visit click on MOTION TO APPEAL 1<\/a> and MOTION TO APPEAL 2<\/a>.<\/p>\n MOTION TO STRIKE PORTIONS DENIED<\/p>\n 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 \u201cquash\u201d (invalidate) Lee County\u2019s decision to rezone the resort to permit increased density and building heights.<\/p>\n \u201cIf 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,\u201d Protect Captiva reported.<\/p>\n On June 5, the petitioners filed their reply brief.<\/p>\n \u201cIn 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 \u2014 and which petitioners claimed were violated in the approved rezoning,\u201d it continued.<\/p>\n 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\u2019s proposed order denying the motion filed by the resort and Lee County.<\/p>\n To view the brief and the order, click on REPLY BRIEF<\/a> and PROPOSED ORDER<\/a>.<\/p>\n EFFORTS TO DISQUALIFY JUDGE DENIED<\/p>\n 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 \u2014 and that the CCA was deceptive in a Legal Update in stating so, despite evidence of that fact.<\/p>\n 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.<\/p>\n \u201cSouth Seas\u2019 efforts to disqualify Judge Shenko have now been rejected twice,\u201d Protect Captiva reported. \u201cThe CCA has now filed motions to dispose of the case and seeks sanctions and attorneys\u2019 fees against South Seas and its attorney for bringing a meritless case.\u201d<\/p>\n In summarizing the legal updates, it pointed out that all of the court cases are related.<\/p>\n \u201cIf the CCA or the 20 petitioners prevail in any of these cases, the rezoning and increased development on South Seas will require reconsideration \u2014 pending, of course, further appeals by the county or South Seas,\u201d the coalition reported.<\/p>\n