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Judge ‘quashes’ annexation ordinance

By Staff | Sep 12, 2019

A challenge contesting the city of Cape Coral’s annexation of six city-owned lots on Matlacha has been upheld by the Twentieth Judicial Circuit.

Circuit Court Judge Keith R. Kyle on Tuesday “quashed” the annexation ordinance passed by Cape City Council in 2016, ruling the ordinance “is not supported by sufficient competent, substantial evidence and because the Court cannot confirm whether the essential requirements of law were observed.”

The judge’s ruling against the city states, in part, “Having reviewed the facts and the arguments of both parties, the Court finds that the petition for writ of certiorari should be granted.

“First, the passage of the ordinance is not supported by competent, substantial evidence. It appears that the city representatives present at the December 12, 2016 hearing believed it to be “quasi-legislative,” and thus, City Council did not require the presentation of testimony or the swearing in of witnesses. However, the approval of an annexation cannot be only ‘quasi-legislative’ in nature, because annexation ordinances are subject to certiorari review. Certiorari review, by definition, requires the reviewing court to determine whether the ordinance was supported by competent, substantial evidence. Thus, the presentation of evidence at the hearing was indeed required. Because no witnesses were sworn under oath and no other exhibits or reports were properly submitted, no evidence was presented at the hearing. In such a situation, the Court is obligated to conclude that the ordinance is not supported by any competent, substantial evidence, grant certiorari, and remand the case back to City Council.”

The ultimate result of Kyle’s ruling is that the ordinance has been kicked back to Cape Coral City Council.

“The City Attorney’s Office will discuss the ruling and next steps with Council at an upcoming ‘shade’ meeting. This is an attorney-client meeting, which is not open to the public. As this is an ongoing legal matter, I can not provide further comment,” said Maureen Buice, city spokesperson, in an email.

The ruling is a result of last week’s oral arguments from representatives of the Matlacha Civic Association, which filed for the writ, or judicial review, and the city of Cape Coral.

Steven Griffin represented the city of Cape Coral and Steven Brannock of Brannock and Humphries represented the Matlacha Civic Association.

The court allowed each attorney 20 minutes to present its case.

In December 2016, the Cape Coral City Council voted to “voluntarily annex” six city-owned lots on Matlacha Island into the city of Cape Coral. Shortly thereafter the city showed plans for the property that included new boat ramps and a two-story building and restaurant.

The Matlacha Civic Association sued Cape Coral, requesting a review of the annexation alleging the city had not “met the requirements of the annexation statute…” and “the property to be annexed creates an illegal pocket or enclave in violation of the statute.”

In an audio recording of last week’s hearing, Brannock identified the lots as the “Gateway to Matlacha,” and maintained that the city’s annexation must be reversed because the property is not contiguous to Cape Coral.

The judge ruled the contiguity issue “appears to be a mixed question of law.”

The city purchased the six parcels located on the eastern edge of Matlacha in unincorporated Lee County in 2012 as part of a then-controversial $13 million land buy of foreclosed properties that includes multiple parcels, including the Seven Islands site in the north Cape.

In 2016, City Council proposed the ordinance to annex the Matlacha property because it owned the parcels and wanted to develop them.

The annexation did not sit well with some residents of Matlacha and Cape Coral. When the ordinance passed, the lawsuit was filed shortly thereafter.

Representatives with the Matlacha Civic Association could not be immediately reached for comment.

(Material prepared by Pine Island Eagle Editor Ed Frank is included in this report.)

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