Town of Fort Myers Beach piggybacks on Seagate attorney’s response to Protect FMB lawsuit
The Town of Fort Myers Beach has responded to the legal challenge from a group of Fort Myers Beach residents over the town council’s controversial approval of the Seagate condo tower project, by outsourcing its response in Lee County Circuit Court — to Seagate.
Rather than provide their own rebuttal to the writ of certiorari filed by a group of neighbors who live near the proposed Seagate condo tower site, the town’s attorneys filed a notice of joinder in which Gretchen R.H. Vose of the Vose Law Firm wrote “To save legal fees and preserve public resources for the Town of Fort Myers Beach, and for judicial economy, the Town desires to ‘piggy-back’ on and join Seagate’s Response to Order to Show Cause.”
In Seagate’s 72-page response to the legal filing by neighbors which the town is piggybacking on, Seagate’s attorney Christopher Donovan moved to deny the writ of certiorari by claiming the petitioners “lack standing” and “because their arguments are either unpreserved or do not meet certiorari’s stringent standards.”
Donovan, an attorney based in Estero representing Seagate, does not work for the Town of Fort Myers Beach and is not being paid by the town. The Vose Law Firm, when they were hired by the town in 2023 to replace former Town Attorney John Herin Jr., told the town council they do not charge extra to handle lawsuits.
Tom Brady, who heads Protect FMB which is supporting the lawsuit by the group of residents, said he was surprised the town signed off on the Seagate response to the group’s suit.
Speaking in front of the town council on Monday, Brady said he was “disappointed by the town’s echo response.”
For the town “to sign up to every argument was a little strange to me,” Brady said. Brady asked if anybody on the town council had reviewed the document before the town’s attorney signed off on it.
The Town of Fort Myers Beach Council has never voted on responding to the lawsuit or how to respond to the suit.
Councilmember John King said the town acted to jointly file its response to the lawsuit through the outside attorney working for Seagate in the same manner that the town relied on the legal services of an attorney working for Kurt Kroemer and Ed Rood to help defend the town from a lawsuit filed in 2023 by Florida Audubon over the lagoon walkover.
Vice Mayor Jim Atterholt said the Town Attorney, Becky Vose, “worked directly with the Seagate attorneys. The Town Council played no role in the drafting of the response.”
It’s not clear how Vose received her direction to essentially back the response issued by the attorney working for Seagate.
Mayor Dan Allers referred questions about the lawsuit to the Town Attorney.
Vose did not return a message seeking comment.
In the response from Donovan to the writ of certiorari challenging the town’s approval of the Seagate project, the attorney claimed that the town had followed its Land Development Code for development agreements to approve the Seagate plans. The town council approved a new process for approving development agreements in April of 2024, which gave developers the option of going through a potentially less cumbersome process than a Commercial Planned Development review.
In Seagate’s legal filing, Donovan wrote “Seagate chose the Town’s development-agreement process because it provided the most flexibility to propose public benefits and negotiate with the Town given Seagate was deviating from height, not density or uses.”
Donovan and Seagate contend that the town’s new development agreement process approved by the town council in April of 2024 allowed the council to approve deviations to the town’s own Land Development Code for height.
Protect FMB has countered that the town council blew right through its own code limiting developments on the bay side of the island to no more than three stories when it allowed the Seagate condo towers to reach 17 stories. The 141-unit towers will rise to a maximum height of 235 feet above base-flood elevation, making them the tallest buildings on the island.
In Seagate’s filing, Donovan said that “the agreement creates certainty in the development process by establishing the outer conditions and specific deviations from the Land Development Code that Seagate can rely on to develop its property.”
Further, Donovan argued that the town’s Comprehensive Plan allowed for heights larger than three stories at the former Red Coconut RV Park property where the Seagate condo towers have been approved for. Seagate’s response also states that other projects can build higher than three stories if they are surrounded by tall buildings, in the firm’s interpretation of the Comprehensive Plan.
The town’s incorporation in 1995 was led by residents to gain control over the island’s zoning and led to zoning regulations that restricted condo towers from being built again in the town. Since then, only a couple towers with prior approvals before the zoning regulations went into effect, have been built in the town.
Donovan claims that the petitioners to the writ of certiorari, a group of residents living near the Seagate property, lack standing because they were not considered an official party to the proceedings at the time of the Seagate hearings. Instead, Seagate and Donovan refer to those who did speak up at the public hearings against the Seagate project as “participants” to the hearing and not “parties.”
“Less due process is required for participants,” Donovan writes for Seagate in its response which is supported by the town.
Donovan further alleges that of the eight town residents suing the town over the Seagate approvals, only two spoke at the public hearings over the Seagate approvals.
Donovan challenges any claim that residents were denied due process.
“Most of the residents squandered those opportunities by not appearing at any of those hearings,” Donovan said in his filing for Seagate, which is being backed by the Town of Fort Myers Beach.
Greg Scasny, an opponent of the Seagate project who helped form Protect FMB, the group that is supporting the lawsuit against the town over its Seagate approvals, said he “expected the weak arguments (Seagate) provided and the just plain inaccuracies provided by them and their lawyers and consultants. They continue to belittle and dismiss the concerns of the residents of this great island, going so far as to say ‘Residents squandered those opportunities by not appearing at any of those hearings’ when referring to the public’s outcry at Town Council meetings against this horrendous development, when we all know there were more residents present and in writing to comment against this than any other matter in recent history. Seagate’s high-paid attorneys and consultants are very skilled at pulling favorable phrases from our Comprehensive Plan while ignoring the parts that don’t support their project, and they continue to do so in this response.”
Scasny, who unsuccessfully ran for town council in a close election last year, said that Seagate’s attempt to deny residents affected by the development their standing in the suit “is almost laughable, if it wasn’t so offensive.”
Scasny said he is concerned that the town enjoined Seagate in the firm’s response submitted by an attorney hired by the firm, rather than submit a separate response by the town.
“This is seriously a slap in the face from our Town,” Scasny said. “Instead of again trying to bring our community together, they doubled down, taking the easy road of just agreeing with a developer that is tearing our community apart.”
In an email, Scasny said “Seagate’s response basically states (and our Town agrees) that some residents’ comments don’t matter because they lack specific legal terminology and specificity. Residents get three minutes of public comment. Developers and their high paid attorneys and consultants get unlimited time in front of Council. Seagate is trying to get off on a technicality and the Town agrees with them. They are telling residents that unless they speak in proper legalese in public comment, their voices don’t matter. It’s no wonder our community has lost interest in trying to stand up for our island – no one is listening to us, only to developers and their attorneys and consultants.”