Judge Shenko Denies Petition for Writ of Certiorari
In a 50-page decision, the Court denied the Petition to invalidate the rezoning of South Seas brought by Captiva Civic Association (CCA), RLR, Royal Shell, and the 20 Homeowner and Timeshare Associations at South Seas. Lawyers for Petitioners believe the Court’s ruling was erroneous and are evaluating Petitioners’ options for appeal.
The Judge acknowledged “that the issues before the Court represent important ones for the parties and the community,” but ultimately ruled that “neither the Lee Plan policies, the Code’s procedures, nor binding caselaw allow [him] to block a rezoning application.” The Judge stressed that he “cannot second-guess the HEX (Hearing Examiner) and BOCC (Board of County Commissioners) in this appellate proceeding, that “deference is owed to the fact-finding of the HEX and the BOCC,” that his role “is to search the record to see if any substantial, competent evidence supports the Board’s decision,” and that he “is prohibited from reweighing the evidence and can only review the record for evidence that supports the agency’s decision, not that rebuts it.”
It is clear that the Court interpreted the binding case law to tie his hands and limit his authority. Petitioners believed (and continue to believe) that the County’s failure to treat South Seas as a Planned Unit Development with limited density and building heights after 50 years of such treatment distorted the whole rezoning process, undermined the substantive and procedural rights of South Seas property owners other than the new owners, and constituted a miscarriage of justice. Petitioners also do not believe that there was competent, substantial evidence of sewer capacity and fire equipment to support the increased development.
Also questionable was the Court’s belief that the BOCC could consider South Seas’ testimony that its development could create thousands of temporary and permanent jobs (including 1,600 construction jobs over a six- to eight-year window), and produce millions of dollars of increased tourist and property tax revenue for Lee County when it approved the rezoning. The law is clear that local governments must enforce their development code regulations and not just approve development projects that promise job creation.