Construction Start Uncertain
While the Fort Myers Beach community was celebrating the first evening of the three-day Roar Offshore Powerboat Race weekend with the Roar Offshore Street Party downtown on Thursday, October 10, word quickly passed through the crowd that island resident Chris Patton had filed a last-minute appeal of the Writ of Certiorari denial by Judge Alane C. Laboda on September 11. This action will most likely further delay the start of construction for the Margaritaville FMB Resort at the base of the Matanzas Pass Bridge for an undetermined period of time, until the Florida Second District Court of Appeals can consider the case.
As TPI Hospitality representatives, the parent organization of the Margaritaville FMB Resort, was still processing the information and consulting their own legal team, spokesperson John Gucciardo could only provide limited details this week. “TPI Hospitality is proceeding on all fronts,” he stated, “towards a start of construction on the Margaritaville FMB Resort.”
While conceding that he had no idea how long the appeal may delay the start of the primary resort construction, he did say that they will postpone the renovation of the former Cotton Shop and current Cigar Hut to be used in conjunction with the future Water Park that was to begin soon. “This will now occur sometime after the New Year, because there is no reason to mobilize construction crews twice. Other than that, there are a lot of unknowns at this point.” Gucciardo acknowledged that Margaritaville FMB cannot begin to work on the Water Park until the resolution of the appeal, as the two projects are interlinked.
This latest legal action seems in keeping with the established pattern of delay taken by Patton and her supporters, including Robert Conidaris, owner of the Lani Kai Island Resort, in legal actions against the Town of Fort Myers Beach to stop or delay the project. The deadline for this appeal was end of day October 10; it was filed just before 5:00pm on October 10.
From the Beginning
The Town Council of Fort Myers Beach unanimously approved the project on May 21, 2018. The resort complex that will include 254 rooms, with a beach-side water park, restaurants, ground floor parking and related amenities, will sit on ground that once held hotel and retail businesses before Hurricane Charley roared into town in August 2004.
Town Council’s approval, known as Ordinance 18 – 04, was signed by then Mayor Tracey Gore on July 9, after approval by Town Council on May 21, 2018. That seven week delay, purportedly to codify the final changes agreed to in the May 21 hearing, was noted by Judge Laboda in her ruling as the 30 day clock to file a challenge began on the date of signature, not council approval.
On August 8, 2018, Island resident Chris Patton, with the open support of Conidaris, filed two lawsuits against the Town just before the filing deadline, alleging that council failed to follow its own Comprehensive Plan in approving the resort and that it would impact Patton’s quality of life as she lives near the resort site. On September 13, 2018, then Mayor Tracey Gore and Council member Dennis Boback, both of whom voted in support of Ordinance 18 – 04, met with Patton and were heard expressing their support of Patton’s actions at a local pub. On June 30, 2019, Patton withdrew the civil lawsuit, but left the Writ of Certiorari request in place. The civil suit cannot be refiled as the deadline has passed.
No reason was provided for the withdrawal of the civil action in June, but the passage of HB 7103 by the Florida Legislature this spring may have played a role. Signed into law in early July, HB 7103 forces Floridians who challenge a development order and lose to pay the legal fees of the winners. The Writ of Certiorari does not carry any financial risk for the plaintiff beyond her own legal fees.
Judge Laboda’s denial of the Writ of Certiorari issued in September, acknowledged Patton filed the request in time and had standing to do so. Other than that, Patton’s claims were all denied. Judge Laboda ruled that Patton was provided adequate due process at the public hearings and her due process rights were not violated. The ruling also found, “the Town’s approval of the deviations and rezoning was consistent with the Town’s LDC, applied the correct law and was supported by competent substantial evidence in the record.” The judge pointed out that several things asked by Patton were not permissible in a Writ of Certiorari filing and belonged in a civil action, noting that Patton had already dismissed the lawsuit she’d filed in regard to those issues including building height, parking and traffic.
The appeal of the Writ of Certiorari denial filed last week will be of limited scope, according to Gucciardo, essentially focused on whether the Town followed procedural due process and whether Judge Laboda missed any essential points of law in her ruling.
Patton’s attorney, Ralf Brookes, argues in the appeal that Judge Laboda didn’t provide enough detail in her ruling denying the Writ of Certiorari. Despite voluminous filings by attorneys for Patton, the Town and TPI Hospitality in the case, Brookes claims that Laboda did not have any facts to support Council’s approval of the zoning and land-use changes.
Bridge Lane Configuration
Town Council and its Public Safety Committee recently reviewed and discussed three concepts for the Matanzas Pass Bridge Lane Configuration for the island base of the bridge, adjacent to the Margaritaville FMB Resort location: the initial one designed by late Lee County District 3 Commissioner Larry Kiker; the Town’s suggested revision, and a third from Lee County that attempted to combine the best elements of the first two. Since these may affect Margaritaville, does the Resort team have a preference?
“We reviewed the draft plan early on, when the late Commissioner Kiker was promoting his design,” said Gucciardo. “We are comfortable that Town Council will take the effect on Margaritaville into account and think that they are on the right track and are voicing the appropriate concerns. I did speak with John Goggin, who is the Chair of the Public Safety Committee, and he has a firm knowledge about Margaritaville, so I feel sure that his committee and Town Council will not forget about us. I do understand their concerns about the number of traffic signals and crosswalks, and right now we do not have an opinion on whether Crescent Street should remain a two-way street or shift to one way, or if either of those will affect our guest check-in route to the resort.”
Beaches Gateway Village
While now in another delay on Margaritaville, TPI Hospitality made their presentation for their companion Beaches Gateway Village development at San Carlos Boulevard and Pine Ridge Road before the Lee County Hearing Examiner on Wednesday morning, September 25, receiving almost no opposition or criticism from adjacent neighbors. Lee County Hearing Examiner Donna Marie Collins stated that the hearing was to potentially rezone that property from Commercial Planned Development to a straight Commercial District C-2.
“The Hearing Examiner indicated that she will announce her findings in roughly one month, so we hope to hear from her soon,” Gucciardo related. “From there, it moves on to the Lee County Board of Commissioners who have the final determination. I have no idea, however, how long it will be from the time of her decision until when the County Commissioners will take up the matter. The brand name for the hotel on this site will be Homewood Suites and the initial construction will include parking, not only for that location but overflow for Margaritaville, our employees, and the Water Park, as we promised the Town.”
Gucciardo said that TPI Hospitality is still trying to work through details for the third leg of Beaches Gateway Village: an affordable housing complex for service employees. “This will not just be for our own people, but other employers as well,” he explained. “In addition to other beach businesses, we discussed the concept with other large area employers like the Lee County Public School District and LeeHealth, to see if they can take advantage of affordable employee housing as well, so this will be open to other than just beach businesses. We do admit, though, that the employee housing component is proving to be more difficult than we originally thought it might be.”
Missy Layfield contributed to this article.