What will happen at South Seas is out of the County’s hands. It’s now in the hands of the Courts, where the cozy relationship between the new owners of the Resort and the County should play no part. The County, which is running a deficit, seems willing to sacrifice the islands of Captiva and Sanibel, and the safety and well-being of their residents, for the prospect of new tax revenues from increased development on South Seas.
The Circuit Court Appeal:
The Circuit Court decision limiting South Seas to 912 units in the 2003 Settlement Agreement between CCA and the County is under appeal by both the County and South Seas. CCA’s answer brief to the County’s appeal is attached here.
In a related matter, South Seas has separately sued CCA for stating in its Legal Update that if the Circuit Court decision is upheld on appeal, the County could never issue more than 912 building permits for hotel or residential units on South Seas. South Seas hopes that the density limit of 912 dwelling units included in the Settlement Agreement does not include hotel units. However, the Circuit Court ruled in its Order granting CCA’s Motion for Summary Judgment that it does:
“In 1973, the County adopted Zoning Resolution Z-73-202 (the “1973 Zoning Resolution”), which rezoned South Seas Resort (“South Seas”) to a 304-acre special zoning district, using a planned unit development (“PUD”) concept plan, with the special limitation that South Seas’ density was specifically limited to three (3) units per acre. The 1973 Zoning Resolution limited the development density for this zoning district to 912 units, inclusive of hotel room units. . . . The Settlement Agreement memorialized the density limits of the 1973 Zoning Resolution.”
Moreover, County experts, the DOAH Judge, and even the South Seas Planning expert have all testified under oath that the density limit of 912 units includes hotel rooms. This is a non-issue.
The South Seas lawsuit against CCA is frivolous and CCA has filed a Motion for Sanctions against South Seas and its attorney. Now the South Seas attorney has noticed its intent to issue subpoenas to non-parties – including Royal Shell and its related corporations RLR and Roberts Development. Royal Shell and its affiliates have absolutely nothing to do with CCA’s Legal Update. South Seas and its attorney are embarking on a senseless, misdirected and costly fishing expedition.
The DOAH Appeal:
The Judge in the DOAH case got the law wrong for two fundamental reasons, and her decision is under appeal by CCA and the City of Sanibel. First, Policy 23.2.4 of the Lee Plan requires the County to “limit development to that which is in keeping with the historic development pattern on Captiva . . . including South Seas.” Amending the Land Development Code in September 2023 to permit expanding development on South Seas from 912 units to 1268 units (and even more potentially) does not “limit development.” Second, the Judge believed that the increased hotel room density and building heights allowed by the Code amendments were not relevant to the DOAH proceeding because a rezoning (which was approved on August 6) was first required. But the correct legal question is whether the Code amendments would allow for increased development (before or after a rezoning) that would violate the Plan provisions. If so, the Code amendments are invalid. CCA’s initial brief was attached to our June 24 Legal Update. CCA’s reply brief just filed is attached here.
Appealing the Aug. 6 Rezoning Approval
The Board of County Commissioners approved South Seas’ rezoning application increasing density on the Resort from 912 units to 1,268 units, and allowing some buildings to be built more than 20 feet higher than any structure on South Seas or Captiva. Only South Seas and the County have supported this increase in development. The Rezoning application was opposed by CCA, the City of Sanibel, RLR, and the many South Seas Associations whose members own the majority of homes, condominiums and timeshares on South Seas. The broad-based and unified opposition to this rezoning has reason and the right to appeal the Commission approval in the form of a Petition for Writ of Certiorari. We will keep you advised.