Our legal challenges to increased building heights and density on Captiva continue to progress in three different venues. Here are some of the highlights of what has taken place.
TRIAL BEFORE DIVISION OF ADMINISTRATIVE HEARINGS (DOAH) COMPLETED AFTER FIVE DAYS AND 14 WITNESSES
The Captiva Civic Association (CCA) challenged the Land Development Code amendments that increase building heights, density, and intensity on Captiva Island and South Seas Island Resort because the amendments are inconsistent with the Lee Plan, which requires the County to “enforce development standards that maintain the historic low-density residential development pattern of Captiva” and “limit development to that which is in keeping with the historic development pattern on Captiva.”
During the five-day administrative trial — which was completed on Friday, Aug. 23 — CCA witnesses showed that the historic development pattern on both Captiva and South Seas has for decades consisted of three units per acre for both dwelling units and hotels, and that buildings were almost always one or two stories over parking on Captiva and always less than 50 feet in height on South Seas. CCA witnesses showed that the code amendments would allow for thousands of new hotel rooms on South Seas, and could permit buildings over 90 feet tall on South Seas and a third habitable floor on the rest of Captiva. It was difficult for Lee County or South Seas to dispute those facts.
The parties also disagreed on the impact of potential new development on evacuation times should another hurricane hit the islands. A Lee County witness argued that evacuation clearance times should be determined only in September, when the population of Captiva and Sanibel is at its lowest. CCA disagreed – explaining that the hurricane season runs from June 1 to Nov. 30, and that governments should not assume the best-case scenario — but must plan to protect and evacuate its population under all reasonably possible circumstances.
The City of Sanibel was permitted by the Judge to intervene in this case over the objection of the County, and Sanibel’s City Attorney was extremely helpful throughout the trial, as was Sanibel’s Chief of Police, who explained the reality of traffic along Periwinkle Way. Sanibel’s Motion to Intervene is attached here.
The Judge provided the parties with 30 days after receipt of trial transcripts to file their Proposed Final Orders, after which the Judge will issue a final decision. Our witnesses presented a very compelling case, and our attorneys exposed the weaknesses of the case presented by the County and South Seas.
SOUTH SEAS INTERVENES IN CCA CASE TO ENFORCE 912-UNIT DENSITY LIMIT ON SOUTH SEAS AFTER JUDGE DENIES COUNTY’S MOTION TO DISMISS
After Circuit Court Judge James Shenko denied Lee County’s Motion to Dismiss our legal action to enforce the 2003 Settlement Agreement — which confirmed the 912-unit density limit on South Seas Island Resort — South Seas decided that it needed to intervene in this case on the side of the County and has just filed its Motion to do so. Once that motion is decided, CCA will consider filing a dispositive motion to enforce the Settlement Agreement, which provides that “the total number of dwelling units on South Seas Resorts is limited to 912” and that “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.”
If the 2003 Settlement Agreement — which was signed by CCA, the County, and the owner of South Seas at the time — is enforced by the Court, the County cannot approve development on South Seas over and beyond the 912-unit cap that has been in place on the resort for more than 50 years.
LEE COUNTY ZONING SECTION AGAIN DEEMS SOUTH SEAS’ REZONING APPLICATION INSUFFICIENT
South Seas’ fourth revised Plan Application to build 196 new condominiums and two new hotels with a total of 435 rooms has been rejected as insufficient for a fourth time by Lee County’s Department of Community Development’s Zoning Section.
- CCA’s Aug. 12 Comment Letter on South Seas’ most recent submittal is attached here.
- Lee County’s fourth insufficiency letter is attached here.
South Seas has 30 days to respond, and a hearing on the Plan Application will not be scheduled until the application is deemed sufficient. If and when the hearing on the Plan Application is finally scheduled, CCA intends join with the 12 South Seas Associations as full participants opposing the efforts of South Seas to substantially increase density and building heights on the resort.
Legal Fund Update
The “Protect Captiva” legal fund, which supports our legal work, has surpassed the $700,000 mark, with more than 1,000 separate contributions. However, with the recent completion of the DOAH trial, and with South Seas intervening in every case that it can, we know that our actual legal expenditures will exceed $400,000 by the end of August. And there is a lot more legal work to come. Please continue to help us in this important effort to Protect Captiva (and Sanibel) by contributing to our tax deductible legal fund. Your contribution can be made here.