Town & TPI Ask for Denial
On Thursday afternoon, November 14, the Town of Fort Myers Beach and TPI filed a joint response to Chris Patton’s October 10 request for a 2nd Tier Certiorari Review. Legal counsel for the Town of Fort Myers Beach and for TPI worked together in drafting the fifty-page joint response.
Town Attorney John R. Herin, Jr. told Town Council in an email Thursday afternoon that he and the TPI attorneys were “cautiously optimistic of a favorable outcome.”
“The Town & TPI’s arguments has always been – and continues to be – that the Town Council followed the applicable provisions of the Town comprehensive plan and LDC in approving the Margaritaville project. Furthermore, we argue, the lower court properly upheld the Town Council’s approval; so on 2nd tier review, which is much narrower standard of review than was applied by the lower court, the Second District Court of Appeal should not overrule the lower court’s detailed Order in favor of the Town & TPI. We have also pointed out in our Answer Brief that a number of Ms. Patton’s arguments were never raised in the lower court, and therefore, should not be considered on 2nd tier certiorari review.“
The Long TPI Saga
In early December 2015, TPI Hospitality, led by Tom Torgerson unveiled a proposed resort concept before a joint gathering of the Lee County Board of County Commissioners and the Fort Myers Beach Town Council. That downtown Fort Myers Beach resort concept, dubbed Grand Resorts Fort Myers Beach, included 562 rooms in four hotels, nine restaurants, retail space, spa, conference center, coastal protection system, boardwalk and parking ramp. After hosting several meetings held to gather public input, TPI withdrew the plan in April 2016 over objections, primarily to a seawall, the size of the resort and a proposed rerouting of Estero Blvd.
A second resort concept was revealed in May 2016 and dubbed Times Square Resorts. This concept included two hotels, one beachside and one on the site of Helmerich Plaza. The second concept did not have a multi-story parking ramp, boardwalk, coastal protection system or any changes to Estero Blvd. Torgerson met with several focus groups including many individuals who had been opposed to the first resort concept, using that input to tweak the resort plans.
By early 2017, another plan was under consideration, known as TPI-FMB. That version included the use of the Seafarer’s property, but without several of the more contentious features in earlier plans that had drawn criticism. A debate between Lee County and the Town of Fort Myers Beach as to which entity should weigh in first ensued, finally resolved when County Commissioners told the Town that they still needed the Seafarer’s parcel for storage during the Estero Blvd projects. The TPI project went back to the drawing board, emerging in the spring with another plan. TPI submitted a formal application to the Town in March 2017, working with the Town’s Community Development department to fine tune the plan and submitting additional information over the next several months. The Town also hired Bill Spikowski, author of the Town’s Land Development Code, to assist in reviewing the plan. The “final” application was submitted in November 2017.
The Local Planning Agency held a Public Hearing on February 13, 2018 that ran almost eight hours and included presentations, Public Comment and LPA questions and suggestions, resulting in approval of the TPI-FMB request by a vote of 5-2.
In April, Town Council held a two-day Public Hearing on the resort application before approving it unanimously and sending it to a Final Public Hearing in May.
On May 21, 2018 the Fort Myers Beach Town Council unanimously approved the TPI-FMB proposal, later named Margaritaville Resort Fort Myers Beach. Approved was a 254 room resort with 224 rooms on the bay side and 30 on the beach side, with a beachside waterpark, two restaurants, ground floor parking and related amenities. Council approved the project with several deviations and more than two dozen conditions, deeming it “consistent with the Fort Myers Beach Comprehensive Plan.” Construction was planned to begin in Spring 2019 with a planned 2021 completion date.
Prior to that final vote, council heard from many community members, most urging passage of the project, though several spoke in opposition, including Lani Kai owner Robert Conidaris who proclaimed, prophetically, that if council approved the project, everyone would sue them.
Not everyone did, but 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 near the resort site.
On June 30, 2019, Patton withdrew her civil lawsuit, but left the Writ of Certiorari request in place.
On September 11, 2019, more than a year after it was filed, Judge Alane Laboda issued a ruling denying Patton’s Request for a Writ of Certiorari. She acknowledged Patton had 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.
Thirty days later, on October 10, 2019, Patton filed an appeal with the Florida Second District Court of Appeals. In that appeal, her attorney Ralf Brookes, wrote, “Not only did the Town Council fail to afford Patton procedural due process, but it also failed to observe the essential requirements of the law by completely disregarding the LDC. Then, to add insult to injury, the Lower Court again refused Patton the due process to which she was entitled. And, the Lower Court too again disregarded the essential requirements of the law. The Lower Court’s failures resulted in an Order which must be quashed.
“The Ordinance represents nothing more than a gift. The Town has gifted, to TPI, densities and other deviations which violate the LDC and fail to conform to the Plan. This gift, made to TPI at Patton’s and the Town’s taxpayers’ expense, is worth many tens of millions of dollars in value as a windfall to the applicant that violates the equivalency factors to increase the number of hotel rooms by 300% as well as adding an additional story in height and additional intensity increase in Floor Area Ratio, all of which will adversely affect Petitioner Christine Patton,” Brookes concludes.
The Town and TPI’s response, filed on November 14, 2019 concludes, “The Town has determined that the TPI project is critical to the redevelopment of the downtown core of the Town, which has been beset by storm-induced blight and is in need of significant revitalization. As the Town concluded, this development qualified for the deviations requested by TPI and met all other requirements of the LDC for rezoning approval. As the circuit court has now concluded, in approving TPI’s project, the Town Council provided Petitioner with procedural due process, met the essential requirements of law, and based its decision on competent substantial evidence in the record. For the reasons discussed in this Joint Response, the circuit court afforded Petitioner procedural due process and applied the correct law. Haines City, supra. The Petition for Certiorari should be denied.”