Courts, not commissioners, may decide Boardwalk zoning change

Posted on March 23, 2019, 2:55 pm
6 mins

Well If the Lee County commissioners have proved one thing these past few months, it’s that they’ll make the hard decision they think is right as opposed to giving in to public pressure.

A few examples…

This past December, the Board of County Commissioners voted to remove popular activist Don Eslick’s name from a county-owned bridge in Estero, despite loud objections to the change. And just last week the commissioners voted to create a roundabout at the intersection of Gateway Boulevard and Griffin Drive, despite the fact that everyone from Gateway’s elected leaders to the South Trail Fire District — not to mention an overwhelming number of residents — are strongly in favor of the installation of traffic signals instead.

So what will the commissioners do when it comes to the proposed Boardwalk at Gateway apartment complex? Supporting the roundabout was one thing, but there would be permanent ire from nearly everyone in Gateway if the commissioners came out in favor of Boardwalk.

Local residents have been consistent and outspoken in their objections to the developer’s plans to build multiple four-story buildings at the northeast corner of Gateway and Griffin. The Board of County Commissioners are no doubt aware of the public’s feelings about Boardwalk.

But what if the commissioners never actually get a say in the matter?

Here’s where things stand today: According to Lee County’s zoning of the Boardwalk property, the developer can build about 180 units on that land. However, they want to build more than 300 units by constructing seven separate apartment buildings. In order to build 300+, they need a zoning change.

The original school of thought was there were two ways for the developer to get the zoning change… an administrative amendment or go through the public hearing process.

The administrative amendment was applied for by the developer and rejected by Lee County staff. So that leaves the public hearing process, at the end of which the Lee County commissioners would vote on the proposed change.

But the developer appears to be going a completely different route: they’re preparing to sue Lee County and get a court order to force the zoning change.

According to a document prepared on behalf of the developer by Pavese Law Firm (who, in my opinion, seem to have it as part of their business model to generate revenue by screwing with the lives of Gateway residents) the developer believes the Lee County staff member erred when ruling against what the developer calls a “minor amendment” to the zoning of that parcel.

Basically the developer says that 17 different zoning changes have occurred to that property over the years, and all 17 of them were approved by county staff and that their change request should be no different.

The developer also said that the main objection of Gateway residents to the development is the impact it would have on traffic. According to the developer, an apartment complex would generate less traffic than a retail complex would.

Two things.

First, it’s a stretch to say that traffic is the clear-cut number one concern. Gateway residents have been just as vocal to the idea of an apartment complex in general, but one that stands four-stories high has been the main cause of concern for many residents. Not traffic.

Second, while available data shows that retail outlets do indeed have more traffic than residential housing, the developer isn’t looking at building 25 homes here. They’re looking at over 300, so their whole “less traffic” argument should have a rather large asterisk because it’s purely hypothetical at this point.

The document goes on (and on and on for 281 pages) basically saying that the county placed an undue burden on the developer, because from the developer’s point of view the change they’re requesting is a small change. The entire document was prepared exactly as they would craft a lawsuit, which basically is telling the county that they could be sued at a moment’s notice if they don’t reverse course and allow the zoning change.

Because this is a zoning matter, we are not permitted under Lee County law to contact our county commissioners to ask them for a status update, or their opinion about Boardwalk. However, approximately two weeks ago Lee County’Communications Director Betsy Clayton told the Gateway Sun, “for now discussion is taking place between the County Attorney’s Office and the applicant’s attorneys, and we don’t have any real news to report at this time.”

So it certainly appears that the developer intends to bypass the county commissioners and the court of public opinion … and will try to get their zoning change approved in an actual court room.

The Sun requested an update from Clayton late last week, and we’ll pass along what we find out when she gets back to us.

Editor of the Gateway Sun and owner of restaurant delivery service Florida Food Runner.

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