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Margaritaville project on beach challenged

Florida Second District Court hears appeal over ‘mega hotel’

June 19, 2020
By NATHAN MAYBERG (nmayberg@breezenewspapers.com) , Cape Coral Daily Breeze

With attorneys providing oral arguments via video feed to a three-judge panel of the Florida Second District Court of Appeal on Tuesday, the key issues raised against the Margaritaville project and a decision by a circuit court were debated.

Attorney Ralf Brookes -- representing Chris Patton, argued against a circuit court decision to uphold the Town of Fort Myers Beach Council's 2018 vote to allow what he called a "mega hotel" by providing deviations from the Land Development Code equivalency factor through "exceptional circumstances" which he said was "unconstitutionally vague" because it gave "unbridled discretion" to the board.

Myers Beach Council's 2018 vote to allow what he called a "mega hotel" by providing deviations from the Land Development Code equivalency factor through "exceptional circumstances" which he said was "unconstitutionally vague" because it gave "unbridled discretion" to the board.

Article Photos

GRAPHICS PROVIDED

Renderings of the Margaritaville project which were provided in 2018 when the Town of Fort Myers Beach Council approved the development.


Brookes argued that under the town code, only 84 hotel units should have been permitted but instead 254 units were allowed. Brookes also said the 278,000 square feet (approximately six acres) of commercial uses was thousands more square-footage than should have been allowed.

"The exceptional circumstances does not have a definite standard that would apply to everyone. It's not discernible to a neighbor. It's not discernible to a developer. It's unknown what it would take to achieve an exceptional circumstance," Brookes said. "The code itself says that normally you take the amount of multi-family units that could be built, in this case 28 and you have an equivalency factor of three, and you multiply that by three, and you have 84 units." Instead, Margaritaville received a 300% increase in the number of units allowed, he said.

One of the main conflicts between the sides was over the multipliers for the intensity under the deviations. Brookes cited the land development code limitations while TPI Attorney Russell Schropp and Town of Fort Myers Beach Attorney John Herin stated that the higher intensity was allowable under the town's comprehensive plan.

Judges Stevan Northcutt and J. Andrew Atkinson both asked questions regarding the intensity issue.

Schropp said the deviations, including for hotel density, were requested by the developer and granted by the town council. As part of the planned development process, the developer was allowed to request deviations, Schropp said. The criteria in the code was applied by the town to grant the deviations, he said. Schropp said the town's code for granting deviations under exceptional circumstances requires that all other aspects of the development including height, traffic and intensity "are compatible with the surrounding areas."

One of the judges, Patricia Kelly, asked Brookes to address how the circuit court's decision denied due process or was a misapplication of law. She also asked for clarification on the constitutionality issue Brookes was raising. Brookes said the town's use of the term "exceptional circumstances" which the town council relied on through its code to approve the deviations was so vague and without definition that it led to an arbitrary decision-making process by which there are no standards. "The town engaged in this inherently subjective and unconstitutional practice when it approved the ordinance," Brookes said.

Brookes said that land TPI gave to the town was part of the exchanges cited for the exceptional circumstances."That's not defined whatsoever," Brookes said.

Brookes cited case law which detailed a need to have reasonable standards for government bodies. Brookes cited the North Bay Village v. Blackwell case and City of Miami v. Save Brickell Ave. case where state courts affirmed a need for standards in order to avoid arbitrary decision-making.

"It affects my client and her rights because she has the right to rely on the legitimate and protectable interest in the character of her neighborhood," Brookes said. "It's not one or two units and it's not a minor ambiguity, this is a huge, big deal."

As a second-tier certiorari case, Schropp said the Second District Court of Appeal wasn't tasked with reviewing the evidence of the reviews, only with whether the circuit court misapplied the law in its review or denied due process.

Schropp also said the constitutionality of an ordinance can't be challenged at this stage. Schropp said a declaratory action would have to be taken against the underlying code in a separate process. Brookes said that would take his client back to "square one" to re-litigate the constitutionality of the exceptional circumstances provision.

Town of Fort Myers Beach Attorney John Herin Jr. said the town afforded Patton due process as part of its approval for Margaritaville by holding two public hearings to adopt a zoning ordinance and held one public hearing that "spanned more than three days, 22 hours of testimony, multiple reports prepared by various experts engaged by the town."

Herin said the town followed its code in allowing the deviations and that the town's land development code, pursuant to the master concept plan, requires developers to be subject to all development regulations established to protect health, safety and welfare "except where deviations have been formally granted."

Brookes said the deviations approved by the town for Margaritaville represented "a gross increase exceedance and it's all based on exceptional circumstance which is not further defined."

The court will be issuing a decision at a future date.

 
 
 

 

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