Fort Myers Beach residents file lawsuit challenging town’s Seagate approval
A group of Fort Myers Beach residents have filed a lawsuit against the Town of Fort Myers Beach and Seagate Development Group over the Town of Fort Myers Beach Council’s approval in December of a local development agreement for a multi-building high-rise condo development that allowed the developers deviations from the town’s height restrictions for the buildings to reach 17 stories high at the former Red Coconut RV Park. At its highest point, the towers would rise to more than 250 feet making them the highest buildings on Fort Myers Beach.
The lawsuit, filed in 20th Judicial Circuit for Lee County, seeks to quash the ordinance approving the Seagate of Fort Myers Beach, LLC’s development agreement application.
The project faced a large amount of opposition from neighbors around Donora Boulevard and Shell Mound Boulevard and others in the community. The lawsuit alleges the development agreement application was not supported by competent substantial evidence and departed from the essential requirements of the law; and denied due process.
The lawsuit names the Town of Fort Myers Beach and Seagate Development Group as parties to the claim.
The lawsuit was filed by the Riddle family, Michael Dagnese, Constance Spataro, trustees of the Evert J. Jelsma and Susanne H. Jelsma Living Trust. Mary Tuttle, the Jasionowski Family Trust, Nathaniel Gorham and C & T Management LLC.
In addition to the condo towers, the development was approved for a private beach club on the beachfront side of its property along with a skywalk connecting the two sides of the property.
The Seagate project, the lawsuit says, “seeks to cram, with the Town’s approval, two 255-feet, 17-story condominium towers in the center of a low-density, single-family neighborhood in the heart of the Island.”
The lawsuit notes that the Fort Myers Beach Local Planning Agency voted to reject the project and the request for deviations from the town’s height limit of three stories and 30 feet above base flood elevation for development in that area.
In their 63-page filing, the Fort Myers Beach residents cited the town’s vote to incorporate in 1995 as a response to the proliferation of high-rise buildings that residents wanted to stop. The lawsuit refers to the town’s comprehensive plan, which states that its goal, is to “maintain the small-town character of Fort Myers Beach.”
The lawsuit maintains that the approvals for Seagate violate the town’s comprehensive plan.
“The Town of Fort Myers Beach was born of dissatisfaction with the land-use policies of Lee County,” the suit states. “Prior to incorporation, Fort Myers Beach was under the jurisdiction of Lee County’s comprehensive plan and land development code, which many residents felt did not protect their interests, particularly with respect to growth, density, and building heights.”
These concerns, the suit relays, “grew as large-scale developments were approved by Lee County, allowing taller buildings and higher densities than many residents wanted.”
One of the major catalysts for incorporation, the suit said, was “Lee County’s approval of the DiamondHead Beach Resort–a 12 story hotel, which sits at a height of approximately 154 feet. Other pre-incorporation developments included Ocean Harbor Condominiums (16 stories and 150 dwelling units) and Caper Beach Club (12 stories and 103 dwelling units).”
The Red Coconut property, which Seagate Development Group paid $52 million for, had its own zoning set forth in the town’s local development code.
The Comprehensive Plan, the lawsuit states, provides for a “pre-approved redevelopment option” in the local development code for the Gulfview Colony/Red Coconut area in which the goal was for a “traditional neighborhood design; detached houses or cottages abutting existing single-family homes; low-rise townhomes or apartments allowed toward the center; walkable narrow streets that double as view corridors; substantial open space with views to be maintained from Estero Boulevard to the Gulf.”
The lawsuit takes issue with the approval process for the town’s local development agreement with Seagate, which it says is the first of its kind in the town. The filing also claims that the town council did not adequately assess public benefit when approving the deviations. In one section of the suit, the lawsuit refers to councilmember John King citing the economic benefits that Local Planning Agency member James Dunlap claimed the development would bring the town. The lawsuit alleges that King was relying on “unqualified statements” at a hearing on the application, before a vote had taken place.
“Nowhere in the comprehensive plan or the Local development code does it state that financial viability is a basis for granting a deviation from the local development code’s strict height limits,” the lawsuit declares.
The lawsuit also takes aim at the public benefit of the project, which the petitioners clear was not clearly defined in order for the developers to be granted consideration for the deviations given for height.
The approval process was contentious with residents voicing concerns about the development’s impact on traffic, beach views and other concerns related to the shadow of the tall towers that would hover above near their properties.
At one hearing, Seagate developer Matt Price called the process a “s—t show.” Price could not immediately reached for comment to respond to the lawsuit.
The Town of Fort Myers Beach Council voted 3-2 in December to approve Seagate’s plans. Voting in favor were Fort Myers Beach Vice Mayor Jim Atterholt, Councilmember John King and Councilmember Karen Woodson. Voting to oppose the plans were Mayor Dan Allers and Councilmember Scott Safford.
Town of Fort Myers Beach Manager Andy Hyatt said he would be declining comment. “We do not comment on pending litigation,” Hyatt said.
Allers did not immediately return messages seeking comment on the lawsuit.
In the legal filing, the petitioners and their attorneys Gabriel Arbois, Theodore Tripp and Michael Whitt argue that the failure of the town council to apply the correct provisions of the local development code, resulted in a “miscarriage of justice.”