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Chiquita Lock lawsuit goes to hearing Thursday

By Staff | Apr 9, 2019

The fight over the controversial removal of the Chiquita Lock will head to the courtroom this week, with a hearing set for Thursday and Friday in Cape Coral.

Administrative Law Judge Francine M. Ffolkes will consider arguments made by representatives of the city of Cape Coral and the Florida Department of Environmental Protection, as well as petitioners who have challenged the issuance of a state permit to remove the water control structure they say is needed to protect water quality.

At the hearing, Ffolkes will hear evidence presented by each side – that the city is entitled to the permit the FDEP says it will issue as well as arguments opposed to be presented by a coalition that includes the Matlacha Civic Association, two residents of Matlacha, one resident of St. James City and four residents of the city of Cape Coral.

There will be no closing arguments but, after the hearing transcripts are prepared, each side will be allowed to submit its recommendations for Ffolkes to consider before she issues her advisory recommendation to FDEP Secretary Noah Valenstein.

Valenstein then will render a decision on the permit.

“That process could take anywhere from 45 days to two months,” said Michael Hannon, speaking on behalf of those challenging the issuance of the permit.

The hearing will be conducted Thursday and Friday, beginning at 9 a.m. each day, at the Lee County office building at 1039 Southeast 9th Ave., Cape Coral, Hearing Room 391, Third Floor.

The petitioners contend that the Cape Coral City Council never authorized the lock’s removal, nor did the city ever hold a quasi-judicial hearing where witnesses testified under oath.

“Our contention is that the City Council has not held a hearing to let citizens express their views on whether they should remove the lock,” Hannon, said. “They should make their decisions based on what the voters want.”

Petitioners claim this was an intentional act by City Manager John Szerlag and special interests to “ram through removal of the Chiquita Lock, thereby avoiding significant public protest and evidence that removing the Lock is harmful to the environment,” according to a complaint to state’s Division of Administrative Hearings.

The petitioners’ complaint also alleges the city is trying to prevent the testimony of Cape Coral Mayor Joe Coviello, who was served a subpoena last Thursday by the Matlacha Civic Association and the other petitioners.

The city successfully countered with motions to quash and for a protective order last Friday, saying the subpoena did not follow administrative witness rules.

On Monday, Division of Administrative Hearings granted the motion, as Coviello is not a party to the action in either his official or personal capacity.

“Case law is clear that ‘[d]epartment heads and similarly high-ranking officials should not ordinarily be compelled to testify unless it has been established that the testimony to be elicited is necessary and relevant and unavailable from a lesser ranking officer,'” the order states.

Hannon said they are not unhappy with the pre-hearing ruling.

“We are very pleased with the Judge’s ruling. Even though she did not require the Mayor to make a public statement or appearance – which he appears reluctant to do – we may still prove at the hearing that the City Council never held hearings and never legally approved the application,” Hannon responded in a statement Tuesday.

Calls to Coviello were not immediately returned Tuesday.

Assistant City Manager Connie Barron said the city would not comment on the matter as it entails on-going litigation.

The Chiquita Boat Lock provides Gulf access from Camelot Canal and the Southwest Spreader Waterway into the Intracoastal Waterway via the Caloosahatchee .

The issue has fostered strong opinions on both sides.

Last month, at an informational meeting hosted by Matlacha Civic at Cape Harbour Marina in Cape Coral, attendees squared off, with boaters claiming the lock creates hazardous conditions.

The Florida DEP issued a Notice of Intent last November to issue a permit for the removal of the Chiquita Lock, which was built during the city’s initial growth to protect the outer waters of Charlotte Harbor, but is now considered by city leaders to have outlived its usefulness.

The city and the Florida DEP say the lock’s removal will improve boater safety and wait times while not significantly impacting water quality.

Petitioners contend that the lock’s removal would result in a degradation of water quality, a reduction in property values, danger to endangered species such as the manatee, lower water levels and silting in the canals that would require costly dredging, vessel navigation issues, blue-green algae invasion, seawall failure and quality of life.

Advocates believe that replacing the old lock with a newer high-speed lock would be a better alternative.

The District Courts of Appeal would be the next step should either side decide to contest Valenstein’s ultimate decision regarding the FDEP permit.