3 Judge Panel Hears Patton Appeal
On Tuesday morning, lawyers for Island resident Chris Patton, the Town of Fort Myers Beach and TPI/Margaritaville presented oral arguments in front of the 2nd District Court of Appeals (DCA) via a Zoom virtual meeting in the case of Patton vs. the Town of Fort Myers Beach regarding the approval of the TPI/Margaritaville Resort on May 21, 2018.
The three judge DCA panel, composed of Judge Stevan T. Northcutt, Judge J. Andrew Atkins and Judge Patricia J. Kelly heard oral arguments from Ralf Brookes representing Chris Patton, Russell Schropp for TPI/Margaritaville and John Herin, Jr. for the Town of Fort Myers Beach.
Brookes argued that the Town granted excessive height, density and size when they approved the “mega-hotel.” As he went into detail on stories and size, Judge Kelly interrupted him. “I understand you think there are a lot of problems with what happened but we have a very limited scope of review and it would really help me understand your argument better if you would tie these things with what we must look at, which is how did the circuit court deprive your client of due process and what law did it fail to apply that it should have. So, you’re reciting a lot of things you believe are problematic but you’re not linking it to those two things or the linkage is not readily apparent.”
When Brookes commented that the district court was too narrow, Kelly asked him to clarify whether he was saying that the trial court did not consider those things. Brookes continued to describe the size of the resort, including an interesting description of Estero Blvd as “like A1A.”
Schropp began his oral argument by stating that the correct law was applied and all criteria followed in the Town’s approval of the project. Herin argued that the petitioner was not deprived of due process and described the process of approval which included over 3 days of hearings, over 22 hours of testimony and over 1,000 pages of information provided to the trial judge.
Brookes suggested a constitutionality question with the ordinance that approved the project, leading Judge Kelly to point out that his appeal petition didn’t raise the issue of constitutionality and asked if he’d raised the issue with the circuit court. No direct response was made.
Brookes also alleged that the Town broke their own rules by approving a project with a Floor Area Ratio (FAR) over 1.4. The TPI/Margaritaville FAR is 1.55. When the judges asked about Schropp’s statement that the Land Development Code allows a maximum FAR of 2.55 for a Commercial Planned Development (CPD), which the project is, Brookes responded, “I’ll have to go back and look.”
TPI/Margaritaville has been battling Patton and her supporters, including Lani Kai Island Resort owner Robert Conidaris, in the courts since August 8, 2018, the final day to file a legal challenge of the Town Council’s unanimous approval of the project on May 21, 2018. The two-pronged legal attack included a civil suit that was dropped on June 30, 2019 after the Florida Legislature passed a law calling for those who challenge a development order and lose to pay the legal fees of the winners. The remaining action, a Writ of Certiorari, carries no financial risk for the plaintiff beyond her own legal fees.
On September 11, 2019, the circuit court denied the Writ request. A month later, again at the deadline, on October 10, 2019, Patton’s attorney filed an appeal to the Second District Court of Appeals which resulted in this week’s oral arguments. There is no timetable on when the court will issue their ruling. The DCA is the final stop for the vast majority of appeal cases in Florida as the Florida Supreme Court rejects most requests for appeal from the DCA level.