South Seas resort ownership group’s engineer proposed a land-use amendment for Lee County’s government at least six months before the first public discussions and at least seven weeks before the county’s official timeline began, emails between the resort’s representatives and county show.
The timeline contradicts what county government officials and South Seas resort owners and contractors said at public meetings, where they said county staff initiated the Land Development Code amendments Jan. 17, 2023. The resort proposed a draft of one of the amendments for the county as early as November 2022 and inquired about doing so in February 2022, emails obtained by Gulfshore Business show.
For more than 100 years, periodic and devastating hurricanes have reshaped Captiva Island. The Great Miami Hurricane of 1926 struck and destroyed a lime tree farm when Clarence Chadwick owned the northern tip of the island. Chadwick regrouped by redeveloping that land into a fishing resort.
Hurricane Ian struck Sept. 28, 2022, about one year after Timbers Company, The Ronto Group and Wheelock Street Capital purchased most of those same lands. Just as Mother Nature forced Chadwick to change a century ago, the new landowners have said the same about the century ahead.
New building codes shrank some of Lee County’s habitable space. Minimum elevations were raised in flood-prone areas, but maximum heights stayed the same. Unlike the time of Chadwick, modern communications and Sunshine Law allow for the public to see what happened in private through electronic communications, plus who met with whom over the course of lobbying for changes.
Gulfshore Business obtained thousands of county government emails, the same ones obtained by a group of Captiva Island citizens who are suing Lee County, and examined lobby logs from the county’s elected commissioners and appointed staff to help the public better understand how Southwest Florida’s largest resort on one of the region’s beloved barrier islands forever could be changed.
The lawsuit is happening because for South Seas resort, the amendments did more than solve the legal issue of shrunken habitable space—the “squeeze.” They allow the resort to rezone the property for the first time in more than 50 years and ask for additional height and rooms.
A review of 27 public inboxes answered many questions, but not this one: Why did county staff and the resort’s representatives say the amendments were initiated by the county, when emails show one of them was proposed by the resort?
The emails include those involving Carl Barraco, an engineer with Barraco & Associates and working on behalf of South Seas, and Deputy County Attorney Michael Jacob. Their first email about South Seas occurred seven months before Hurricane Ian.
Barraco declined to comment. Jacob did not respond to an emailed interview request.
On Feb. 18, 2022, Jacob wrote to Barraco, copying a Lee County staff member: “ … there’s nothing in the AI (Administrative Interpretation) that would preclude you from asking for an amendment. Staff will need to offer their input on whether the height adjustment back to the height of the other buildings is something that can be approved administratively. If they need assistance on making that determination, I’m here to help.”
On Nov. 22, 2022, Barraco met with Assistant County Manager Marc Mora to discuss South Seas, Mora’s lobby log filed with the Lee Clerk of Courts showed. Mora did not return an email seeking comment.
On Nov. 28, 2022, Barraco emailed Jacob, along with four other county staffers, and copying attorney Neale Montgomery, records show. Montgomery of Pavese Law Firm was working for South Seas, emails show.
Barraco wrote: “Better late than never so I am sending an outline of the proposed SSIR (South Seas Island Resort) Overlay and a draft of our request of the BoCC to change the LDC so that the Administrative Interpretation maybe be substitute with the Overlay. I am hopeful this will help us move forward with the process at tomorrow’s meeting. We are prepared to move quickly with the BoCC request if that is the consensus at our meeting tomorrow.”
In that email, an attachment called for exempting South Seas Resort from the 2002 Administrative Interpretation. It also called to request the BoCC “to direct staff to prepare and process a South Seas Resort Overlay District.”
Removing the 2002 interpretation was part of the amendments passed, the new law shows.
The next day, Nov. 29, 2022, Barraco, Montgomery, Jacob and at least four other county staffers met for an hour to discuss South Seas, Jacob’s lobby log shows.
On that same day, Lee County Director of Community Development Mikki Rozdolski responded to Barraco, copying Mora and Jacob: “Are wheels in motion to get Board direction at next week’s BoCC meeting or are we aiming for January 17? Once we know, I can work CAO (county attorney’s office) to put together a schedule for hearings assuming we get direction from the Board to proceed with only LPA committee review.”
Rozdolski did not respond to an interview request. Lee County Director of Communications Betsy Clayton said she was not available.
Kevin Ruane, chairman
On Jan. 17, 2023, Commissioner Kevin Ruane made an unopposed motion for staff and said, according to the recording of the meeting: “Bring amendments to Land Development Code regarding height, setbacks and other development limitations that will potentially restrict residents’ ability to rebuild their homes and businesses in a manner that reduces potential flood effects. This includes reviewing proposed amendments and provisions in the LDC and the redevelopment of South Seas.”
Seven weeks before that, Barraco already had proposed one of the amendments, the emails show.
But during the Sept. 5, 2023, public meeting prior to voting, Commissioner Cecil Pendergrass, whose lobby log showed he met with Barraco Dec. 15, 2022, about South Seas resort, is recorded as saying: “What we’re voting on today was brought forth by the county … .”
Greg Spencer, CEO of Timbers, which co-owns South Seas said: “We fully support the county’s proposed changes to both the LDC and comp plan,” stressing the word “county’s.”
Alexis Crespo, vice president for planning at RVi, a landscape architecture company working for South Seas said: “I’m requesting that you vote yes on the staff-initiated LDC amendment.”
Montgomery, the attorney working on behalf of South Seas with Barraco, according to emails, said: “This is a staff-created zoning district with regulations.”
Pendergrass, through his executive assistant, said his schedule was too busy for an interview. Spencer, through Priority Marketing, declined to be interviewed. Crespo did not respond to a voice mail seeking comment. Montgomery did not respond to an email seeking comment.
Brian Hamman
Landowners taking initiatives on legislation is a normal part of the political process, Lee County Commissioner Brian Hamman said.
“That’s actually common, because the staff isn’t going to invest a lot of time or effort on something that the board would be opposed to,” Hamman said. “It would be normal—and, I believe, proper protocol—to say that the landowner would make a request.”
Hamman said he could not speak to the timing of the proposed amendment beginning before the public knew about it. “I don’t know enough about it,” Hamman said. There were no emails indicating Hamman knew otherwise.
“The public should be able to view and see everything,” Hamman said.
Lee County commissioners passed the land development amendment Sept. 5, 2023, before they adopted it Dec. 6, 2023, both via 4-1 votes with Ruane voting against both times, saying staff did not follow his instructions given Jan. 17, 2023.
The votes only allowed the resort to ask for boosts in height and number of rooms through the public rezoning hearing process in the future despite public opposition from most Captiva residents, surrounding community leaders and the prior legal agreements with Lee County not to do so.
Ruane declined a Gulfshore Business interview request, he said, because of pending litigation. On April 2, the Captiva Civic Association sued Lee County to restore a previous agreement, one that would prohibit South Seas resort to ask for more density than its current legal limit, which is three units per acre, the number of 912 units spread across 302 acres. This figure has been in place for more than 50 years.
Captiva Civic Association, or CCA, claims in its lawsuit the government violated previous agreements reached in 1973 and 2002. Those agreements capped the number of South Seas condo and hotel units. South Seas said it wants to build up to 1,347 units, a 48% increase.
The resort is interspersed with 17 condominium associations. CCA hired attorney Richard Grosso, who is based in Plantation and specializes in environmental land-use cases. He filed a public records request with Lee County and paid $1,425.29 for all electronic communications between South Seas representatives and county staff, commissioners, citizens and others dating back to 2021, records show.
Grosso declined to comment, as he and his staff are still reviewing what they estimated to be about 26,000 separate emails and attached documents amounting to about 104,000 pages, said David Mintz, vice president of the Captiva Community Panel.
Gulfshore Business obtained those same communications. The electronic communications show Barraco continued working with Jacob to amend the land development code after Jan. 17, 2023, and before June 2023, which was when the amendments first appeared on a county meeting agenda, records show.
On Jan. 30, 2023, Jacob wrote to Montgomery and Barraco: “As discussed, please find the attached copy of the draft language. No pride of authorship, so feel free to make things clearer if needed.”
Spencer sent a statement April 12 through Priority Marketing to Gulfshore Business: “As property owners, we have the right to request information, strive for understanding and engage in dialogue with county officials to gain clarity. Our team even provided information to Lee County staff on how South Seas and other properties were measured, trying to get clarification on the different measurement methods and levels. This is all very normal correspondence for experts in land use, especially considering the devastation that Hurricane Ian left behind and the changes in flood maps.”
Spencer did not respond to further questions relayed through Priority Marketing about why Barraco and Montgomery, a former Lee County attorney, were representing South Seas.
Spencer sent a follow-up statement April 24 through Priority Marketing. It said, in part: “As one of the largest property owners and heavily impacted by Hurricane Ian, South Seas reached out and asked Lee County for guidance on the issue. … Lee County initiated the LDC revisions for ALL of Lee County, not just for South Seas. As the County has stated, the LDC revisions standardized and simplified how building heights are now measured—at the lowest minimum habitable floor elevation for which a building permit may be issued, for all of Lee County. Understanding this and getting to this point has been the focus of communications between our consultants and County staff, not just for us, but for all Lee County property owners.”
From July 2021 through 2023, Lee County Commissioners Mike Greenwell (seven meetings), Hamman (18 meetings), Pendergrass (five meetings), Ray Sandelli (11 meetings) and Ruane (25 meetings) combined to have 66 meetings that were labeled as related to South Seas resort, Captiva and/or Land Development Codes affecting Captiva, according to lobby logs.
At about 30 minutes per private meeting, that amounted to about 33 combined hours of private meetings relating to Captiva and/or South Seas. Some of the private meetings related to South Seas sewer expansion on Captiva, according to the lobby logs; others focused on the land development code amendment.
South Seas resort’s ownership group and/or its representatives met privately and separately with some of the Lee County Commissioners multiple times during the same days, doing so three times during the lobbying process, before and after the land development code amendments became public knowledge in June 2023, Lee County lobby logs and emails show.
The concerned Captiva citizens who opposed the amendments also met with multiple commissioners on the same days, lobby logs and emails show. Public meetings about the LDC changes combined to last about five hours, plus about another five hours of public workshops.
On Sept. 5, 2023, commissioners spent about 11 minutes discussing in public their reasons for voting.
An email sent by Barraco’s staff to county staff in December 2022 requested to meet in private with each of the five commissioners in a single day about South Seas resort.
Those meetings ended up being granted but were spread, individually, across December 2022 and January and February 2023, the lobby logs show.
The multitude of meetings could be a Sunshine Law violation, legal experts told Gulfshore Business.
“It’s not easy piecing the dates together, but the timeline does raise issues,” said Sam Terilli, a lawyer and former legal counsel for the Miami Herald. “Individual commissioners can meet with developers and lobbyists to gather information, ask questions, etc., they just cannot communicate with other commissioners about public business through these people as intermediaries or line up votes. Whether they crossed the line is hard to know without testimony, but this does raise the issue.”
Hamman said at no time in any of his meetings were the other commissioners and their voting preferences discussed.
“I think it’s important to point out that the commissioners don’t coordinate each other’s calendars,” Hamman said. “We don’t share and assist. Each county commissioner gets their own office and own assistant who coordinates the calendars. I don’t know who’s meeting with [whom].”
On Feb. 3, 2022, South Seas representatives met separately with Hamman and Sandelli about South Seas resort, lobby logs show.
On June 16 and June 19, 2023, South Seas met separately with Hamman, Ruane and Sandelli about LDC (land development codes) and/or South Seas, lobby logs show. Terry Miller, a lobbyist working for South Seas and the campaign manager for Greenwell, Hamman, Ruane and Sandelli, sat in on the meetings with Ruane and Sandelli, lobby logs show.
On Nov. 3, 2023, Hamman met about LDC with South Seas lobbyists and consultants Bob Walter, Noah Valenstein and Miller on private property at South Seas resort, a text message and lobby logs show. Valenstein did not respond to an email seeking an interview.
On the same day, Sandelli met about South Seas with Walter, Barraco and Miller, lobby logs show. Walter did not respond to a voice mail message seeking an interview.
“I will say, as a lobbyist, that I do not discuss what happened in one meeting in another meeting,” Miller said, adding he knows that would be a Sunshine Law violation for the involved commissioners, who, except for Pendergrass, also are his clients.
Sandelli and Greenwell did not respond to emails from Gulfshore Business seeking interviews.
One email showed Ruane sharing with the other four commissioners how he planned on voting. He told Gulfshore Business the reply all was an accident.
On June 12, 2023, with the first vote on the land development code amendments approaching, Ruane began emailing responses to hundreds of concerned citizens. Ruane wrote an 11 paragraph note. He hit the caps lock key for the final paragraph, which said, “I AM VOTING NO.” He forwarded the response again, at 3:11 p.m. the same day, to a concerned citizen, plus Commissioners Greenwell, Hamman, Pendergrass and Sandelli with a note on the top that said, in lowercase: “I am voting no.”
“I do not recall sending an email to the other commissioners that I would be voting no,” Ruane wrote to Gulfshore Business. “However, I acknowledge that I received several thousand emails and could have inadvertently responded ‘reply all’ where some of the commissioners might have been copied on and this was not my intent to notify them of my vote. I would note, however, that ‘notifying them’ did not result in the exchange with any BoCC member with any information for opinions regarding the subject matter.”
A response from any of the other commissioners could have resulted in a Sunshine Law violation, County Attorney Richard Wesch wrote in a June 16, 2023, email to Pendergrass, had any of the other commissioners revealed their votes. They did not.
Wesch did not respond to an email and a message seeking an interview.
Leaders of the CCA who were working to prevent the land code changes also met separately with multiple commissioners on the same day.
On June 16 and 19, 2023, Lisa Riordan, David Mintz and Ken Suarez of the CCA had separate meetings with Pendergrass, Sandelli and Greenwell, lobby logs show. Matt DePaolis of Sanibel-Captiva Conservation Foundation attended the meetings with them and Pendergrass (June 19) and Sandelli (June 16) but not Greenwell (June 19). Deputy County Attorney Jacob sat in on the meeting with Sandelli, the lobby log said.
There was no sharing of information from one commissioner to another, DePaolis, Riordan, Suarez and Mintz each said in separate interviews. Suarez, president of 12 condominium associations at South Seas and the owner of two condo units there, said the purpose of those meetings was to explain to each commissioner why they should vote against changing the codes, not to spread information between them.
“I’m going to tell you right now, that was not even a conversation,” Suarez said. “We didn’t play tic for tac. We gave them the facts. Of why we need to protect Captiva and what it would do for us.”
Said DePaolis: “We were there to present our case. It was just us talking about our view of the matter.”
Cecil Pendergrass
On Aug. 23, 2023, the Captiva group again met separately with Sandelli about the LDC and Greenwell about South Seas, the lobby logs show, with Jacob again attending the meeting with Sandelli.
These CCAs meetings almost did not include Pendergrass, the emails showed. On June 12, 2023, Pendergrass emailed Jacob, saying he would continue refusing to meet with the CCA.
“I won’t!” Pendergrass wrote.
Suarez recalled Pendergrass’ repeated refusals to meet with CCA.
“He cut off communication with us because we wouldn’t go along with his plan,” Suarez said. “When he found out we were against it, he cut us off. We asked him multiple times, why won’t you have a conversation with us? Crickets.”
Pendergrass eventually did meet with the CCA, on June 19, 2023, the lobby logs show.
“I will tell you, straight up, Pendergrass told us, you’ve got 30 minutes,” Suarez said. “That’s it, and I’m not going to talk to you anymore after that. And we ended up talking an hour. I think he was more fascinated about learning more about the resort than anyone else. Obviously, he listened but ultimately it didn’t matter.”
On July 22, 2023, Pendergrass emailed several county staff members in response to the Sanibel-Captiva Conservation Foundation’s, or SCCF, email newsletter asking the community for contributions to its legal fund: “I wonder if their 501c status allows them to be political with an issue? Did we ever hear if the Captiva Panel is allowed to take legal action on a county LDC? Do they have standing since its countywide? See below, at least we know they only have enough funds to file a motion, that’s it. Until we ask for Discovery and their records, emails and phone text. See you on Monday! Have a great weekend!”
The CCA has raised almost $500,000 for legal fees from about 650 donors, said Riordan, the association’s president. She said its goal is to raise $750,000.
Among the emails sent to the commissioners were from the city of Sanibel Council, which sent its letter Aug. 25, 2023, and Fort Myers Mayor Kevin Anderson, who emailed his letter Aug. 30, 2023, in support of Sanibel.
Sanibel and Fort Myers each represent a combined 52,567 registered voters, about 11% of the county’s total of 476,847. Sanibel has 4,801 registered voters. They live between the only hurricane evacuation route and the resort.
At the Sept. 5, 2023, vote, 36 of the 53 public speakers, or 67%, were against passing the land code amendments.
“I am in support of the City of Sanibel’s opposition to the proposed amendments to the Lee County Land Development Code and the Captiva Chapter of the Lee Plan,” Anderson wrote. “As a barrier island, it is important to recognize the importance of low density and protecting environmentally sensitive lands.”
The South Seas’ quest to build additional hotel and condominium units still has to go through the public rezoning process. But it also could go to court, said Barbara Peterson, founder and executive director of the Florida Center for Government Accountability. Lee County taxpayers could be responsible for the county’s legal fees.
“The large number of individual meetings between county commissioners and those representing the development are concerning, and raise the spectre of significant Sunshine Law violations,” Peterson said. “Clearly, rewriting the building codes to allow for higher density is of public interest and concern, and yet it appears county commissioners did what they could to cloak their discussions by holding a series of one-on-one meetings. As Mr. Terilli says, we can’t prove the commissioners violated the law unless—and until—they’re required to testify under oath.”
