In a disappointing decision, the Judge in the case before the Division of Administrative Hearings (DOAH) found that the Captiva Civic Association (CCA) failed to prove “beyond fair debate” that the Code amendments that exempted South Seas from the Captiva density and height limits were inconsistent with the Lee Plan. According to the Judge,
“Petitioner presented a strong case that the Ordinance would allow development at South Seas which departs from the historical development pattern, at least for density and height. However, the success of Petitioner’s argument from a consistency perspective hinged on an interpretation that, together, Goal 23, Objective 23.2, and Policy 23,2,4 prohibited land development regulations that would allow development contrary to the historic development pattern of South Seas. The plain language of the Plan, specifically Policy 23.2.4 did not support Petitioner’s interpretation. The evidence showed that it was a least fairly debatable that the historic development pattern of Captiva, referenced in Policy 23.2.4 singled out South Seas as a separate land use subject to its own regulations.”
That conclusion is just not correct. The Lee Plan requires the County to “limit development to that which is in keeping with the historic development pattern on Captiva.” Even if South Seas was subject to its own regulations as the Judge suggests, its own regulations limited the resort to 912 units (3 units per acre) for more than 50 years. For this reason, and for other errors in the Judge’s interpretation of the Lee Plan, this decision will be appealed. The DOAH decision is attached here.
There is another issue that deserves mention in this update. The Judge found that
“the competent, substantial evidence supports a finding that South Seas’ approval for 912 residential units includes ‘guest facilities,’ which is synonymous with hotel and motel units in today’s language. Hotels were developed on the property, prior to the 1973 rezoning, which the County did not exclude from the unit count.”
This finding confirms CCA’s position in the 2003 Settlement Agreement case before Judge Shenko that the 912 unit limit for South Seas always included both residential dwelling units and hotel units. We still await the Final Judgment from Judge Shenko granting our Motion for Summary Judgment that will limit development on South Seas to 912 dwelling units – including hotel rooms.