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Judge to decide on consolidation of UEP lawsuits; City faces three cases

By Staff | Mar 26, 2008

The fate of several lawsuits attacking Cape Coral’s utilities expansion project could change radically Monday when a circuit judge decides whether to consolidate them into one case.

Three cases have been filed, one on behalf of a small business and the other two on behalf of citizens, alleging serious issues with the project’s assessment methodology and at-risk manager program. Lee County Circuit Judge Jay Rossman will decide if the lawsuits are comparable enough to put into one case.

“I made the motion to consolidate a number of cases,” Councilmember Bill Deile said Tuesday. “It just makes it easier for all the parties considered.”

The councilman and his wife, Janet, filed the lawsuit in 2006, alleging that the assessment methodology the city used to determine the amount each property owner must pay for the project is “arbitrary and capricious.” Deile also asked the courts to find that the at-risk manager program the city uses for construction violates state law.

With the help of outside attorneys, the city has fought against the three lawsuits and plans to argue against the consolidation.

“We really don’t think the Community Self Storage case is appropriate because it deals with commercial property,” said Assistant City Attorney Marylin Miller.

Along with several other residents, Cape Coral Minuteman member and frequent city critic John Sullivan also has a pending lawsuit. He launched the litigation because he believes the city would not listen to concerns raised by residents hit with costly assessments.

“That lawsuit was filed on principle, not for money,” said Sullivan. “Even if I win, I’m going to lose money.”

Deile said that he has mulled the future of his lawsuit, and he admitted that his wife is more firm on keeping it in the courts though the cost will almost certainly outweigh any award a jury or settlement would give them.

“It’s a matter of principle for her,” he said. “This is not like a personal injury suit where you go to McDonald’s and spill hot coffee on yourself.”

At Monday’s council meeting, Sullivan made a bid to be named to the newly formed UEP citizens committee. He said he would be dropping his lawsuit in response to questions from Councilmember Dolores Bertolini concerning his ability to be impartial as a committee member.

After a series of votes, Sullivan was slotted into the final open position on the eight-member board. He said on Tuesday that he “misspoke” about the court proceedings as he was caught off guard by the line of questioning.

“It really surprised me when they brought up the lawsuit,” said Sullivan. “I’ve been very careful not to talk about it in public.”

In a phone interview, Sullivan said that he will write to Bertolini admitting his error, though he contends that the retroactive nature of his lawsuit has nothing to do with the citizens group’s work.

“That lawsuit is not relevant to what is going on with this committee. (But) if she thinks the vote was influenced as a result of that, they can take me off,” he said.

“Anything that the committee does will be prospective and going forward,” Deile said. “There’s no way that Sullivan or anyone who has been assessed can benefit. There’s a line between the two. I don’t see the crossover other than a psychological one.”

The councilman added that anything the committee suggests and council adopts will affect the residents across the city, while the results of the lawsuits will only affect the parties involved.

But Councilmember Eric Grill, who attempted at Monday’s meeting to table any discussion about a citizens committee for a month, has a “huge issue” with Sullivan’s revelation.

“I find it very ironic that the one person who has been screaming about misinformation from the city on the UEP all of a sudden provides misinformation and then gets selected to this committee,” he said.

Bertolini was equally troubled, noting that the council and city staff deal with perception on an everyday basis. She said the five council members who supported Sullivan for the committee would likely not change their minds after learning his lawsuit is not going to be dropped, but that it does put a bit of a cloud over his appointment.

No matter if he is on the board or not, Sullivan said he has high hopes that the group will come up with a solution to the city’s woes.

“I’ve always said the price is too high and we have to figure out a better mousetrap,” he said, noting that he supports installing city water and sewer lines. “The people cannot afford to pay this kind of money for these utilities. What I’m hoping for is that these guys make some kind of a breakthrough.”