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Town, TPI respond to Patton appeal

November 20, 2019
By NATHAN MAYBERG (nmayberg@breezenewspapers.com) , Fort Myers Beach Bulletin, Fort Myers Beach Observer

The Town of Fort Myers Beach, through town attorney John Herin Jr. and in conjunction with lawyers representing TPI, has filed papers opposing town resident Chris Patton's appeal of a 20th Judicial Circuit Court ruling that denied her effort to quash the Margaritaville project.

Patton, through Cape Coral attorney Ralf Brookes, has opposed the town's approval of an ordinance allowing for the rezoning of the property at 1160 Estero Beach Boulevard where TPI's Margaritaville Resort project has been approved. Their initial petition to the court in 2018 was denied this past September by Lee County Judge Alane Laboda. The matter has been appealed to the state District Court of Appeal Second District on due process grounds.

Their contention is that the town's Land Development Code was the applicable law that was to be followed and that the Circuit Court did not apply the correct law when making its decision.

Article Photos

Chris Patton speaks to the media outside of Fort Myers Beach Town Hall with attorney Ralf Brookes (background) after they objected to the town giving up a right-of-way for TPI's Margaritaville project.

NATHAN MAYBERG

The town's response to the appeal cites the Circuit Court decision which found Patton was afforded due process at public hearings at which she spoke, and that she "did not object to being limited to three minutes. ..."

The town's response goes on to state "the Town reviewed multiple staff reports, reports from the Applicant, and the recommendation from the LPA the Town Council listened to 22 hours of presentations, heard public comment, held two separate public hearings spanning three days, and made affirmative findings in the approval process."

Patton's opposition is centered around the town's approval of a 254-room resort, which is she contends is approximately three times the allowable number of rooms (84) under the town's code. The project would also be four stories high, which is one story higher than the code allows for. One of those stories would be just for parking and there is concern by Patton as to how high the cars will go. Patton and Brookes contend that the town will not be able to handle the corresponding increase in traffic.

The town council unanimously gave the developers exceptions from the Land Development Code, which allows for such an exemption in "exceptional circumstances." The plaintiffs argued that no facts were cited by the court in determining how the town found such circumstances.

"This purely subjective and vague standard allows the Town Council to engage in arbitrary decision making an unconstitutional practice and a miscarriage of justice that must be remedied," Brookes stated.

In their response to this point, the town stated "while they may be useful, the board will not be required to make findings of fact." The response further stated that "Detailed findings of fact showing compliance with the requirements of the LDC were made by the Town in the Ordinance adopting the rezoning and granting the deviations."

The town's response also opposed the allegation of acting in an unconstitutional manner.

"While case law is clear that ordinances may not give unbridled discretion to local officials in the review of zoning cases, such ordinances are not required to identify with exact precision the circumstances under which approval may be granted. In order to be valid, an ordinance simply must not allow the decision makers to act upon whim, caprice, or in response to pressures which do not permit ascertainment or correction."

In their appeal, Brookes contended that TPI's claims of hardship in order to gain the exceptions were self-created.

"TPI allowed some (of) the properties to remain vacant and let all of them fall into disrepair. This amounts to the self-created hardship conditions TPI now calls 'blight,'" Brookes stated in the appeal.

In the town's own appeal conclusion, they state "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."

Patton lives on Primo Drive across a canal, less than 2,000 feet from the proposed project.

In a note of irony, Brookes stated in his appeal statement that a large reason Fort Myers Beach was incorporated in 1994 was due to public outcry of another resort project, the Diamond Head Resort.

TPI is currently targeting early 2022 for the opening of the resort.

On Monday, Patton and Brookes appeared before the town council to oppose a resolution which would vacate 12 feet of the town's right-of-way adjacent to the Pierview Hotel to allow for work on the Margaritaville project. As part of the right-of-way access, TPI will be responsible for removing all driveways and street connections at the intersection of Canal Street and Estero Boulevard. Patton opposed the move, saying residents of her road on Primo Drive use Canal Street to get to the beach.

"There is going to be a traffic problem," she said.

The council approved the resolution unanimously.

 
 

 

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