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Fort Myers Beach resident files case against town over Margaritaville
August 9, 2018

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Just 16 minutes before the deadline for an appeal against the newest island development, it appeared.

On Wednesday, beach resident Chris Patton filed a zoning appeal to the Town of Fort Myers Beach

over the 5-0 approval of the TPI Hospitality Resort.

The resort was approved June 9 by ordinance, and had a window of time in which a case could be filed - which was Wednesday at 5 p.m. Patton's case was filed at 4:44 p.m.

In the complaint, the plantiff, Patton, claims the town has violated its own comprehensive plan by its action of approving the 254-room hotel resort development because of the hotel room density, the building height and the floor-area ratios (FAR), and that the density granted to TPI was done without an amendment to the comprehensive plan.

Patton lives on the 150 block of Primo Drive, which is less than 2,000 feet from the bulk of the Margaritaville Resort.

Patton's complaint states she will be "adversely affected by increased traffic in the already congested Estero Boulevard will be negatively affected by the Project's height, intensity, activity, lights, music, visual and audible noise pollution, and enjoyment of the beach."

Patton's appeal was filed by Laura Howard of The Solomon Law Group and Ralf Brookes or Ralf Brookes Attorney. Brookes has also filed a case against the town on behalf of the Lani Kai in May.

At the town council's Thursday planning meeting, town attorney Jack Peterson told the council that the town "had not been served" yet for the case.

The appeal was filed in the 20th Judicial Circuit Court. Peterson said in a typical zoning appeal, if case moves forward, the court will review the allegations and the actions taken by council to see if the town did follow its own policies correctly, or if it violated its own policies. If the court determines the town was correctly following policy, the case is over. If not, the court will remand the zoning actions back to town council. It doesn't overturn the council's decision, but the town would have to re-evaluate the entire decision, he said.

The court's decision is appealable at a higher level. The other affected party - in this case, TPI Hospitality - can join in the lawsuit with the town for its own legal recourse.

At this time, TPI Hospitality has not made a decision on whether to join the town or not, said John Gucciardo, who's been the development spokesman.

"TPI is waiting to see what the town's response will be," he said.

Gucciardo is hopeful the case won't impact TPI's ability to request demolition orders or go through with some procedural steps, but it could set back the timeline of construction.

Originally, TPI planned to first demo the Ocean Jewel building at the base of the bridge, at the town's request, by Sept. 30. Then the on-the-ground work for the rest of the resort complex was projected to begin in December.

"They're just costing the town more money (in lawsuits)," Gucciardo said.

TPI Hospitality applied to the town in April 2017 for a 290 room resort spread across the corner of Fifth Street, a triangle-shaped parcel on Fifth and Crescent, and a parcel on Estero Boulevard.

After going through the Local Planning Agency and two public hearings with the town, the project was approved at 254 units on the triangle-shaped property and the Estero Boulevard property, connected by a pedestrian overpass open to the public. The town granted increased density and a three-story plan in return for increased view corridors and the transfer of a public parking lot and Ocean Jewel to the town.

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