Editorial | Move on
Cape Coral City Council last week snipped a staff “policy” that entangled residential properties in a board-approved tree fund ordinance intended to give commercial developers options when meeting city codes for landscaping and green space.
The elected board decided that requiring residential property owners to make five-figure “mandatory contributions” to a fund designed to let developers meet their green obligations by essentially fulfilling it off-site was an unreasonable request.
Using the example presented at last week’s Council meeting by a resident who saw city staff jack the cost of vacating a strip of land near his seawall so his property legally touched the waterline jump from about $2,800 to nearly 10 times that, Council intervened, saying the levy was too high and served no public purpose.
One Wednesday, Council unanimously agreed to refund the unauthorized fees already paid by three or four properties owners extracted as a staff-imposed condition dubbed this week by City Manager Mike Ilczyszyn as not an imposed fee, but “voluntary donation.”
There are at least two other previous-council issues that require a similar new-council look.
We’d say each — one a legal boondoggle in the making, the other a legal quagmire more than $2 million deep and still sucking bucks — is costing the city money, but the ATM is ours — i.e. the taxpayers’.
A fresh perspective is warranted.
Vested rights
The likely legal challenge in the queue is one of vested rights, specifically the city’s decision to halt what it says is the proliferation of car washes and self-storage facilities.
At issue is that city land development codes, zoning and other regulations allowed these facilities to be built where, in some cases, they now cannot due to Council changing the rules to accomplish its goals.
A case in point:
Cape Coral City Council determined last month that North Medical Land Company had not established a vested right for the development of a planned car wash on property it owns at Del Prado Boulevard, N., and Dan LeDuke Road.
The quasi-judicial hearing before Council came at the request of the company in the wake of a Council-adopted moratorium on car washes.
Boos Development Group Inc., the contract buyer, planned to develop the site for a Mr. Car Wash, a nationally recognized car wash operator.
Although city staff found that two of three conditions met vested rights criteria — the project was in the works before even staff said it had discussed the moratorium — the project failed to meet a third. The previous Council, by a 7-1 vote, determined that the $174,000 invested was substantial — but not substantial enough — to meet that third vested right benchmark.
Besides complete disagreement with what the city apparently considers a “significant” investment, our concern here is the potential for a Bert Harris lawsuit — shared in October by several speakers either with or representing those with vested interests.
Florida’s decades-old Bert Harris Act, a state statute, puts a value on regulatory “takings,” even when the property is not rendered wholly useless for its intended use.
We urge Council to take another look at the vested rights impact, not only for this project but for any others that were in there queue.
The ‘Three Fishermen’
The second is the city’s on-going effort to seek sanctions against the “Three Fishermen” for what the city’s legal team contends was a legally meritless lawsuit challenging the city’s second effort to remove the Chiquita Lock .
It’s the city’s second shot because the residents, and a number of environmental groups, successfully challenged the lock’s removal during the first go-around in 2019.
The city regrouped, re-planned, resubmitted and prevailed.
The city did so, in part, by significantly upping the ante, hiring top-gun — and expensive — legal counsel and other experts.
The city has expended more than $2 million on not only its legal effort to fight the grass-roots challenge but what we predict will be a fruitless effort to recoup those staggering fees from the three Cape residents even if the administrative law judge hearing the case finds for the city and allows for sanctions.
The plaintiffs do not have bottomless bank accounts as, it appears, does the city, which, let’s just say it, is attempting to make a point — the point that scared off the environmental groups that withdrew from the case once the city made its intent to seek sanctions — and spend the money to do it — known.
A couple of things.
Cape Coral City Council members on Wednesday called its continuing effort to seek sanctions a “process” that should be allowed to play out, that the administrative law judge should decide if the case was baseless to the point of actually being a bad faith filing.
Ummm, OK.
But at what cost?
Let us be blunt: The city has little-to-no chance of extracting even the portion of the $2 mill dedicated to the sanctions fight from the plaintiffs.
If Council truly believes otherwise, we have an enticing commercial P3 proposal to monetize Yellow Fever Creek Regional Park that we’d like to sell the city. Throw enough money at it and we promise: The residents are going to love it.
Meanwhile, the meter continues to tick as the administrative law judge’s ruling on the city request to seek sanctions is expected in February.
Or not.
An appeal has been filed with the Florida First District Court of Appeal to strike the city’s renewed motion or to dismiss it contending the city cannot prove by “clear and convincing evidence” that residents’ “participation in this proceeding was knowingly false and done with reckless disregard for the truth.”
Council — in theory anyway — controls the pursestring and needs to get this settled — and not “for the Three Fishermen.”
For the rest of us.
Simply put, even if the city wins, we lose.
It’s time to move on.
— Breeze editorial