09/10/2025
Seagate Update!
Friends,
Our attorneys have filed a reply to Seagate (and the Town's) response to our Writ.
The summary of their reply is below (AI Generated). I feel our attorneys did an outstanding job and we at Protect FMB are feeling confident in succeeding in this writ.
To that end, we are still soliciting donations to cover legal expenses - Please consider a donation today!
https://protectfmb.org/?page_id=290
If you would like to read the entire filing, it can be found on our Media page here: https://protectfmb.org/?page_id=306
Here is the summary of our filing:
This is a formal legal petition for certiorari review challenging The Town of Fort Myers Beach approval of a high-rise condominium development ("Seagate") on the Red Coconut Property. Below is a clear, structured breakdown of the core arguments and legal violations alleged, based on the document provided:
Core Legal Violations Alleged
I. Failure to Apply Mandatory Height Deviation Criteria (LDC § 34-631(b)(5) & Policy 4-C-4)
The Issue: The Town Council approved a 17-story tower without conducting the required "level of unfairness" evaluation or defining "public benefit" (a prerequisite under the law).
Evidence:
The Town Council held a joint meeting with the Land Planning Advisory (LPA) on November 13, 2024—before approving the project—to define "public benefit" (App. 1319-1324), proving they knew the criteria was missing.
The Council rejected the LPA’s recommendation without remanding to establish the missing criteria (LDC § 34-85(b)), violating due process.
No findings were made on "level of unfairness" (App. 1102-04), and the development agreement only mentions "public interest" (not public benefits outweighing unfairness).
II. Bias of Council Members (King & Atterholt)
The Issue: Council members predetermined votes based on irrelevant factors, violating due process.
Evidence:
Councilman King: Voted to approve before hearings began based on "financial viability" (a non-standard criterion) (App. 679, 189:3-15).
Councilman Atterholt: Voted based on "maintaining momentum" post-Hurricane Ian (a non-standard criterion) (App. 679, 184:10-21; App. 1036, 205:2-21).
Legal Support:
> Seminole Entm't, Inc. v. City of Casselberry, 811 So. 2d 693 (Fla. 5th DCA 2001): Bias in quasi-judicial proceedings warrants certiorari.
> Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995): Bias by one member invalidates proceedings.
III. Failure to Comply with Redevelopment Criteria (Policies 3-A-5, 3-A-6, 4-F-2 & LDC § 34-692)
The Issue: The project violates mandatory redevelopment standards for the Red Coconut Property.
Evidence:
Policy 4-F-2(iii): Requires "traditional neighborhood design" (detached homes + low-rise townhouses) as the basis for pre-approved redevelopment.
→ Seagate’s project: 137 multi-family condo units + 4 single-family homes (no traditional design) (App. 616).
Policy 3-A-6: Requires:
(a) Gulf-side view corridor (90 ft. narrowest point, obstructed by Seagate’s beach club/pool vs. required 120 ft.) (App. 616);
(b) Variety of housing types (Seagate builds 137 condos + 4 single-family homes—not diverse housing) (App. 590).
Town Planner Sarah Propst confirmed these criteria apply (App. 1133), and Seagate did not list them as deviations (App. 998-99), meaning they control the project.
IV. Due Process Violations (LDC § 34-85(b))
The Issue: The Town Council ignored its own process for due process.
Evidence:
The Council rejected the LPA’s recommendation without remanding to define "public benefit" (LDC § 34-85(b)), denying applicants/public due process.
Seagate’s own Applicant Report admits LDC § 34-692 criteria "are expected" in redevelopment (App. 590), yet the project violates them.
Key Legal Citations & Why They Matter
Statute/Policy: LDC § 34-631(b)(5)
- Requirement: "Level of unfairness" test + "public benefits" definition
- Violation: No findings made; "public benefit" undefined (Council held meeting after project approval to define it)
Statute/Policy: LDC § 34-85(b)
- Requirement: Council must "remand to afford due process" if criteria missing
- Violation: Council rejected LPA recommendation without remand
Statute/Policy: Policy 4-F-2(iii)
- Requirement: Redevelopment must use "traditional neighborhood design"
- Violation: Project is an overwhelming majority high-rise condos
Statute/Policy: Policy 3-A-6
- Requirement: Requires view corridors (120 ft.) + housing diversity
- Violation: View corridor obstructed (90 ft. narrow); 97% condos, 3% single-family homes
Why This Petition Will Likely Succeed
1. Clear Procedural Failure: The Town Council admitted in writing (via the November 2024 meeting) that "public benefit" was undefined—a fatal flaw for a height deviation.
2. Bias Evidence: Pre-determined votes based on non-standard criteria (financial viability, Hurricane Ian "momentum") directly violate due process.
3. Contractual Obligation: Seagate’s own Applicant Report (App. 590) states LDC § 34-692 applies, yet the project violates its design principles.
4. Case Law Support: Seminole Entm't and Stivers establish that bias by one council member invalidates proceedings.
Conclusion
The Town Council violated Florida law by:
Approving a high-rise without the required "level of unfairness" analysis,
Ignoring due process by refusing to define "public benefit,"
Approving based on biased, irrelevant criteria,
Permitting a project that explicitly fails mandatory redevelopment standards.
This petition for certiorari is legally sound and targets multiple, independent violations of the Florida Land Development Code. The Town’s own actions (e.g., the November 2024 meeting) provide irrefutable proof of procedural failure.
> 💡 Key Takeaway: The Town’s attempt to "fix" the missing definition after approval (via the November 2024 meeting) is legally irrelevant—due process requires the criteria to be met before approval. This is a classic "after-the-fact" procedural violation that courts routinely strike down.
For legal action, this petition should be filed with the Florida Fifth District Court of Appeal (jurisdiction for Lee County/Coastal communities like Fort Myers Beach). The evidence presented is sufficient to order the Town to vacate the approval.
The events of the last week have made us realize that there is quite a bit of misinformation and confusion over who we are and what our purpose is.
