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Bond validation in the hands of a judge

By Staff | Oct 9, 2013

Closing arguments were made Wednesday during the third and final day of a bond validation hearing for the city of Cape Coral to test the legality of its controversial fire service assessment.

Officials speaking on behalf of the city, which requested the hearing, continued to maintain everything was done by the book in regards to the assessment, saying it is necessary to provide fire service to its residents.

Meanwhile, property owners challenging the assessment contended that not only was the two-tiered ready-to-serve methodology flawed, and the ratio of fire calls versus non-fire calls erroneous, but that the process had been poisoned by possible Sunshine law violations.

At stake is the city’s ability to impose on Cape Coral taxpayers a new assessment for fire operations using a method that has not been seriously challenged in court until now.

The city, which sought the legal clarification, is the plaintiff.

The defendants, or challengers, are any and all affected Cape property owners. And dozens have shown up, most on the first day on Monday.

Chris Roe of Bryant Miller Olive, the city’s bond counsel, said Wednesday the city provided proper notice in regards to legal notice for readings and meetings and followed all the procedures necessary to make everything valid.

He also said the assessment methodology just made sense.

“We determined that a two-tiered method, the per-parcel charge and the structure value was best,” Roe said. “The city can no longer rely on ad-valorem and it doesn’t preclude us from seeking other sources.”

As for alleged Sunshine violations and questions concerning a document council members were asked to sign during an Aug. 26 meeting, Roe said that was not unusual in a bond validation process.

The state had no objection to the issuance of bonds, but those opposed certainly did.

Councilmember Chris Chulakes-Leetz, among those opposed, thanked the court for its indulgence in allowing its team, many of whom had no legal court experience, to make its case.

Chulakes-Leetz also criticized the state for what he said was a failure to provide legal representation and promised the case will be appealed if defense loses, and reiterated his belief Sunshine laws were broken.

As for the document, Chulakes-Leetz contended neither he nor Mayor John Sullivan signed it, even though it appears on it, and said signing such a document was not protocol.

“Those who took an oath on the Bible wouldn’t have to sign an affidavit. It screams of violation,” Chulakes-Leetz said. “It’s possible the signatures were either wrongfully obtained or forged.”

Former council member Bill Deile, also opposed, contended that the city council and City Manager John Szerlag had no idea what the ordinance meant or its specific details.

Both sides were confident in their cases afterward.

Szerlag said the main idea of the hearing was to test the methodology for a new assessment the city needed to provide necessary services.

“We were here to have a fire service assessment and to test the legality of it,” Szerlag said. “The city was artificially balancing its budget by foregoing capital and layoffs. We had to decide what kind of city we wanted to be.”

There are 20 days for defense counsel to file a legal brief, with 15 days after that for the city to respond.

Judge Keith Kyle is expected to decide next month, with defense saying it will file an appeal if the validation is approved.

Deile said he was glad it was over and said it could be considered a victory of the people against government, though that wasn’t the purpose.

“It was a lot of work and tension, but what the judge did was reserve judgment,” Deile said. “We came here because the methodology to exact this tax was incorrect, unnecessary and in violation of procedures.”

“I’m very pleased with the results of these three days. I’m going to follow the judge’s instructions and file a brief within 20 days,” Chulakes-Leetz said. “He tolerated the lack of education in the courtroom, and allowed us to present our case on behalf of the citizens.”