Court of Appeals Invalidates 912 Density Cap
Unsurprisingly, Judge Gannam, who was outspoken in support of the County’s position at oral argument, wrote the opinion issued on Friday reversing Judge Shenko’s decision enforcing the 2003 Settlement Agreement which stated:
The total number of dwelling units on South Seas Resort is limited to 912. No building permits may be issued by the County for dwelling units within South Seas Resort that will cause that number to be exceeded at any time.
The Court of Appeal, which assumed that the Shenko decision correctly interpretated the Settlement Agreement as limiting South Seas to 912 units “at any time,” held that the County did not have the authority in 2003 to sign an agreement which “prohibits the County from issuing building permits beyond the historical 912-unit density limitation of South Seas Resort District,” and prevents the County from increasing density in the future by enacting new zoning ordinances. According to the Court, the Settlement Agreement constituted unenforceable “contract zoning” because the County contracted away its right to increase density in the future.
Contract zoning is unlawful because it substitutes a public hearing process with a contract between a County and a private developer to rezone its property. In 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. The Court recognized that “the settlement agreement here may not meet the common definition of contract zoning because the [CCA] is not a developer or landowner,” but unfortunately failed to apply that important distinction in deciding this case. The Court also failed to recognize that the County did not actually contract away its authority, but exercised its authority in permanently enforcing the 912-unit density limit that was the condition upon which the South Seas Resort was constructed and upon which the purchasers of South Seas properties relied for decades. The Appellate Court invalidated a Settlement Agreement that was reviewed and signed by separate attorneys for the County, CCA, South Seas, and then by a mediator and the Judge – and was approved by a vote of the Board of County Commissioners at a public meeting. In so doing, the Appellate Court failed to even mention the Florida Constitution, which prohibits the government from impairing the contract rights of its citizens. The Florida Supreme Court has called the protection of contracts both “fundamental” and “sacrosanct,” and a government has only “a very severely limited authority” to “eliminate a contractual obligation it has itself created.”
Attorneys for CCA have 15 days to determine how best to appeal. We will keep you advised. [The appellate court’s decision can be read here].
• DOAH Appeal Denied. On the same day, the same Panel of Judges that reversed Judge Shenko’s decision denied CCA’s request for oral argument in the appeal of the Administrative Law Judge’s decision in the Division of Administrative Hearings (DOAH) case, and then “affirmed per curiam” the ALJ’s decision without a hearing and without a written decision.
Attorneys for CCA are deciding how best to respond.
• Petition to Invalidate Rezoning Pending. The Petition for Writ of Certiorari remains scheduled for oral argument before Judge Shenko on Sept.3 at 1:30 p.m. CCA, RLR Investments and Royal Shell Vacations, 12 South Seas Condominium Associations, and 8 Timeshare Associations have together petitioned the court to “quash” (invalidate) the County’s decision to rezone South Seas to permit increased density and building heights. The Reply Brief by Petitioners in this most important matter is due on June 5. If 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.
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