Margaritaville facing legal challenge, Town procedural re-do
Margaritaville faces a new pair of issues — the latest response as part of an appeal by a Beach resident challenging the project and a proposed modification to a Town ordinance pertaining to public rights-of-way.
Margaritaville project neighbor Chris Patton and attorney Ralf Brookes filed their latest reply to TPI and the town on Jan. 21 to the Second District Court of Appeal that is hearing their challenge to the proposed development on 1160 Estero Beach Boulevard on Fort Myers Beach.
At the same time, the town council reversed the vacating of the town right-of-way on Canal Street where one of the Margaritaville buildings would go, in order to pass a new ordinance governing future vacating of town rights-of-way.
Beach Mayor Anita Cereceda said the current ordinance is “not in the best form it can be.” Once the new right-of-way ordinance is approved, the TPI developers can have the town’s property vacated to them for the Margaritaville project. Cereceda said TPI approved of the reversal in an “abundance of caution.”
The council will hold a public hearing on the ordinance Feb. 3.
Patton, who has been fighting the development, was preparing to file a legal challenge to the town’s actions vacating the right-of-way before the town decided to change course, according to Brookes. Brookes contends the town unlawfully gave up public land to a private developer and granted TPI special privileges to escape town zoning.
In November, Patton and Brookes appeared before the Town Council to oppose a resolution which would vacate 12 feet of the town’s right-of-way adjacent to the Pierview Hotel to allow for work on the Margaritaville project. As part of the right-of-way access, TPI would be responsible for removing all driveways and street connections at the intersection of Canal Street and Estero Boulevard. Patton opposed the move, saying residents of her road on Primo Drive use Canal Street to get to the beach. The council voted unanimously to approve vacating the property at that time.
The new ordinance 20-06 states that the council “desires to streamline and update the Town’s procedures to vacate town-owned property to provide a cost effective and efficient process.”
The ordinance states the “town recognizes that notice to adjacent property owners and a public hearing before vacating Town owned property ensures that due process is provided.”
A major component of the lawsuit filed by Patton and Brookes centers around allegations that due process was not provided to Patton in the Town Council’s approval of the TPI-Margaritaville project.
Patton said the new ordinance would actually limit notice to adjacent property owners in right-of-way actions from 500 feet to 300 feet.
“I think it’s unfair,” Brookes said. “The longest face of the main resort building is over 500 feet long,” he said.
The proposed ordinance also states “The Town recognizes it is unlawful to vacate public rights-of-way solely for private purposes.”
That language contrasts with another argument made by Brookes and Patton in their legal arguments that the town violated state law by vacating a public right-of-way to help a private developer.
“I think that they realized that we had some valid claims,” Brookes said.
The proposed ordinance codifies a monetary or property exchange for right-of way by stating “to offset the private benefit gained from the vacation by acquiring additional land and therefore additional development rights, the Town shall seek a monetary or other exchange.”
Brookes has argued that the town’s exchange of property with the developer for the right-of-way access was a type of “contract zoning,” which he argues violates state law.
“You’re not supposed to have a quid-pro-quo in exchange for property,” he said.
Cereceda said the town benefitted by giving up the right-of-way to TPI by gaining three times as much property from the developers for the public.
“You have to look at the whole picture,” Cereceda said. “We’re giving up Canal Street. We gained almost three times Canal Street.”
Cereceda contends beach access will be improved near Crescent Beach Park where Pierview Hotel and Salty Crab are now.
The new ordinance further states that “in the case of a partial vacation of a platted subdivision, the vacation will not adversely affect the ownership or rights of persons owning other lands, and will not adversely affect the convenient access of persons owning other lands, and will not adversely affect the convenient access of persons owning other part of the subdivision.”
The Second District Court of Appeal has previously issued a show cause order to the town in response to the court filing by Brookes. Brookes said the next step will be for the three-judge panel of the court to either issue a judgment or hold hearings.
In his latest filing, Brookes said the lower court’s previous ruling on the matter “erred when it found height and intensity were ‘interwoven’ with exceptional circumstances to permit an increase in guest rooms.” Brookes said the town code only permitted three stories, not four stories as the project has been approved for. Brookes is also arguing the code only allowed for 84 units, not the 254 rooms the project has been approved for.
“This is too big for Fort Myers Beach and sets a bad precedent,” he said.
“I don’t think the town can give away the public’s right to access the beach,” Brookes said. “The town’s really gone out of their way to depart from the code.”