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Utility lawsuits tab in excess of $65,000

By Staff | Mar 29, 2008

Two lawsuits over the utilities expansion project filed by a Cape Coral city councilman and a committee member in 2006 have cost the city nearly $30,000, according to the city attorney’s office.

To date the city has spent more than $15,000 defending itself against Councilmember Bill Deile’s lawsuit and more than $14,000 in a suit with utilities expansion committee member John Sullivan. The two men began litigation in 2006, arguing that the city’s assessment methodology is “arbitrary and capricious.”

The suit was filed before Deile was elected to the city commission in November. Sullivan was appointed to the utility committee this week.

“They are seeking a declaration from the court that the assessments are invalid and a permanent injunction enjoining the city from enforcing the terms and conditions of the final resolutions,” said Cape Coral Assistant City Attorney Marilyn Miller.

The city has spent an additional $38,395 in a suit with Community Self Storage.

Lee County Circuit Judge Jay Rossman will decide next week if the three lawsuits should be consolidated into one.

Deile said Friday that he initially filed the suit because the city was not listening to residents who were most affected by the utilities expansion.

“We were making a statement,” added Sullivan.

In a sit-down interview Deile said he is “astounded” to find out what the city has spent in legal defense and believes those expenditures were totally unnecessary, especially when he has been pushing to send the litigation to case management.

“They could have settled this for nuisance value,” he said. “I’m not looking for a $100,000 award. I didn’t spill hot coffee on myself in the cafeteria.”

While the councilman and committee member have said they do not stand to benefit from lawsuits they have against the city, a legal expert says the motivation for such suits usually is financially based.

“Governments have tried assessments and people have attacked them all the time,” said Grant Alley, a governmental attorney who also is the city attorney for the city of Fort Myers. “They want (the government) to use another methodology that will reduce the bill that they owe.”

The two litigants repeatedly have said they are not suing for money, but out of principle. Nevertheless, their case does ask the court and a jury to award them any damages deemed warranted.

Alley said that damages will be very difficult to prove and that even if the court throws out the city’s methodology, an unlikely scenario, the courts simply will allow another one to be imposed.

While that normally could change the amount that residents in the Southwest 4 area, where Deile and Sullivan live, pay for their assessments, Deile said the statute of limitations has run out for other people there to sue the city.

Given those circumstances, the best Deile, Sullivan and the others tied to the cases could win are the differences between their current assessment and one considered more appropriate. The money the men have spent in legal fees, and in Deile’s case assistance from a private attorney, would outweigh any award they would receive, the two argued.

“How can I make any money off of this?” said Sullivan “It’s impossible.”

Going forward

The city already has been victorious in one case filed by the now defunct citizens’ group Cape Coral Watchdogs. The group owes the city more than $26,000 to cover court and legal costs the city sought to recoup.

While the Watchdogs took a more “shotgun” approach than the current suits, the city still is using the same assessment methodology that was declared valid in the previous case.

“To that extent it would appear that the finding of the court in the Watchdog case would be a sort of precedent,” Miller said.

Both Deile and Sullivan said Tuesday that their lawsuits are solely retroactive and would not have an impact on the utilities expansion project. But if a jury determines that city was in the wrong, that may not turn out to be accurate.

“If the court made a finding that the methodology we used is arbitrary I suppose it would affect whether it would be prudent to use that methodology,” said Miller, who said a victory by Sullivan and Deile could set a precedent for residents in other assessment areas to sue the city on similar grounds.

On Friday, Deile clarified his statements by saying that the court would never tell the council how to assess the utilities expansion project. It would simply declare one to be wrong and tell the city to try something else.

“If by some weird set of circumstances the court rules that the methodology is not correct, then the council will be forced to change it,” he said. “I think the current council is now educated and sensitized to the inequities in the methodology so that they’ll change it anyway.”

The most likely scenario is that both suits will eventually fail, Alley said.

“It’s well settled that assessments are legal,” he said. “Usually those methodologies are upheld.”

Deile conceded that litigation requires a “high standard” to get the court to overrule the decisions of local governments.

Public perception

Several members of council also have questioned whether the suits constitute a conflict of interest for the two men. Deile reiterated his stance that they do not, but said he can appreciate where negative perception is coming from.

When applying for the committee position at Monday’s council meeting, Sullivan said he would be dropping the lawsuit the following week. But Tuesday he said he misspoke and could not talk about the case in depth because he did not want to speak for the other residents who are a part of his litigation.

“I don’t want to influence what the court is going to do,” he added. “I don’t want to upset the applecart.”

The committee member promised to speak before council next week to clarify his situation, but whether he steps to the podium is dependent on the court’s ruling on consolidating the cases.

“If the judge decides he’s going to put this off for another day for whatever reason, I’m going to have to shut up,” he said.

In the end, Sullivan hopes the cases can be resolved and that the city finds a way to install utilities at a lesser price.

“What I’m really hoping for is that when the committee is done, that they can get this mess straightened out,” he said.