A hearing examiner has recommended that Cape Coral temporarily suspend a “mandatory involuntary contribution” to the city’s Tree Fund, imposed as a condition by city staff on those seeking what previously was routine vacation approval.

In a recommendation dated Aug. 9, Hearing Examiner Anne Dalton recommended the temporary abatement “so as to allow for in-depth City review” of a new condition for approval that, in the case heard, placed a five-figure demand on a property owner requesting the city “vacate,” or release, the strip of property between the legal description of his waterfront lot and his seawall.

Ms. Dalton specifically recommended the deletion of the staff-generated condition of approval requiring a $32,722.11 contribution to the city’s tree fund. The staff condition also requires payment before the matter can be heard by City Council, the final step in the city’s approval process.

“From testimony, it appears that the City Council has not approved, by Resolution or otherwise, imposition of this requirement on single-family homeowners and has not approved, by Resolution or otherwise, the methodology of computation of such fee if such Council approval were granted,” she wrote. She added that as the city’s Land Use and Development Regulations require Council review for such fees for developers, so, “at a minimum, City Council would review such fee imposition on homeowners as well.”

“In short, the Hearing Examiner is concerned about how this Tree Fund obligation has been implemented as to owners of individual single-family residences, and specifically the imposition of the Tree Fund fee obligation solely on Applicants for Vacation. An additional concern is the methodology utilized by staff to compute the fee,” she wrote.

Ms. Dalton then recommended that the mandatory involuntary contribution be temporarily suspended and that the contribution be deleted as a condition for approval.

She recommended approval of the remaining conditions, which are pretty much standard for requests of this type, which have been routine for decades due to how the city was platted by its developers who dug hundreds of miles of canals and sold thousands of lots as waterfront although the legal boundaries for some did not quite hit the water due to “undredged” canal edges a few feet wide in some places.

The hearing examiner made a similar recommendation for a second case, which calls for a contribution of $21,69.94, but made it clear her recommendation does not apply to previous cases or others in the queue.

“The proposed suspension would not apply to those prior or pending Applications for vacations in which the Applicant stipulates/has stipulated to all the conditions proposed by staff (including but not limited to the imposition of a contribution by Applicant to the Tree Fund as part of the approval process).

“This would be deemed to be voluntary agreement to pay the fee.”

Interesting.

And unfortunate for anyone who bought — literally — what the hearing examiner says is city staff’s apparent abridgement of Cape Coral City Council’s legislative authority.

City Council sits as a quasi-judicial board on matters such as these with rules that are clear.

Until this comes before Council as a properly advertised hearing, Council may not discuss this case as a board.

We believe Council can, however, examine any policy within its purview, including this one which was never brought before them for consideration and approval — or not.

We urge Council to put the matter, including staff’s specious methodology to determine the amount of these “mandatory involuntary contributions,” on an agenda for discussion and a Council determination ASAP.

We also strongly suggest that among the hard questions for staff, Council ask why its policy-making authority smacks of being quietly, but quite brazenly, usurped.

–Breeze editorial