On Thursday, October 10, 2019, Chris Patton of Fort Myers Beach, filed an appeal of the denial of her petition for Writ of Certiorari issued September 11, 2019 by Judge Alane C. Laboda of the 20th Circuit Court in Lee County regarding the Margaritaville FMB Resort. The appeal will be considered by the Florida Second District Court of Appeal. No timeline is specified for the appeal.
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 downtown project. The deadline for this appeal was end of day October 10; it was filed just before 5:00pm on October 10.
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 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. That filing was also done just before the deadline to file.
In the Beginning Legally
On August 8, 2018, Island resident Chris Patton, with the open support of Conidaris, filed two lawsuits against the Town, 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 close to 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 HB7103 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 appeal filed Thursday will be of limited scope, according to John Gucciardo, Margaritaville FMB project spokesman, essentially focused on whether the Town followed procedural due process and whether Judge Laboda missed any essential points of law in her ruling.
The 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.
Watch for a review the status of Margaritaville FMB and how this appeal might affect it in the October 18 Island Sand Paper.