- Oral argument on the County’s appeal of the Circuit Court decision limiting density on South Seas to 912 dwelling units took place on Thursday, April 30. Although it is difficult to predict the outcome of a case based upon the Judges’ questions at oral argument, one can reasonably draw some inferences. First, all of the Judges probably believe that the 2003 Mediated Settlement Agreement between CCA and the County is a clear and unambiguous contract limiting density at South Seas to 912 dwelling units. The County was not persuasive in arguing otherwise. Second, one Judge was quite assertive in asking whether the Settlement Agreement may have been unlawful from the beginning (ultra vires) if the County had no authority back in 2003 to contract away its police powers and its right to increase density on South Seas in the future through a rezoning process. Third, the other two Judges were hard to read on that issue, although one of the Judges raised a policy concern about a contract binding the County’s hands from rezoning a property. However, to rule against CCA, the Judges will have to set aside 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.” A decision could come quickly or take more than a year. As previously reported, South Seas cannot request, and the County cannot approve building permits for condominiums or hotels on South Seas without providing CCA notice so that it has time to enjoin any development greater than the historic density of 912 units pending this appeal.
- In a related matter, the Motion by South Seas to Disqualify Judge Shenko from the FDUTPA case has been denied as being “legally insufficient.” The Order denying the Motion is attached here. CCA’s Motion for Summary Judgment has been filed and attached to the last Legal Update. South Seas claims, contrary to the overwhelming evidence, that CCA was deceptive when it stated in its Legal Update that the 912 unit limit in the 2003 Settlement Agreement between CCA and the County included hotel units. CCA has also filed motions for sanctions and attorneys fees against South Seas and its attorney in this frivolous case.
- Oral argument on the Petition for Writ of Certiorari is scheduled to take place 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 invalidate the County’s decision to rezone South Seas to permit increased density and building heights. The County and South Seas have moved to strike a portion of the Petition claiming that the Court has no jurisdiction over arguments alleging that the zoning approval was inconsistent with the Lee Plan. Judge Shenko has scheduled a hearing on June 8 regarding the Motion to Strike.
- CCA and the City of Sanibel continue to await the assignment of judges and the scheduling of oral argument in the appeal of the Administrative Law Judge’s decision in the Division of Administrative Hearings (DOAH).
- The South Seas lawsuit against the Captiva Community Panel has been referred by the court to mediation, which will be scheduled by Sept. 22.
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