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Cape Council to discuss options in wake of adverse annexation ruling

By Staff | Sep 19, 2019

In the wake of a judicial ruling that found the city of Cape Coral did not follow proper procedure when it annexed six parcels the municipality owns in Matlacha, City Council will meet Monday in a “shade session” to discuss its legal options.

The closed door session, allowable by state law for matters pertaining to litigation, will be held at 3 p.m. in Council Chambers.

As an Attorney-Client Session, the meeting will open in Council Chambers, and then move to Conference Room 220A to discuss litigation strategy regarding the Matlacha Civic Association’s annexation challenge, upheld by Circuit Court Judge Keith R. Kyle last Tuesday.

Governments can hold shade meetings if there is current litigation or an administrative proceeding that creates the potential of litigation. They are designed to discuss strategy or to reach settlements outside of public view. It is considered attorney-client exemption.

The challenge contesting the city of Cape Coral’s annexation of six city-owned lots on Matlacha was upheld by the Twentieth Judicial Circuit, meaning the ordinance for annexation has been kicked back to city council.

Kyle “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.”

“First, the passage of the ordinance is not supported by competent, substantial evidence,” the ruling states, in part. “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 Cape Coral City Council had voted in December 2016 to “voluntarily annex” parcels into the city. The properties, on the eastern edge of Matlacha in unincorporated Lee County, had been purchased in 2012 as part of a then-controversial $13 million land buy of foreclosed properties that included multiple parcels, including the Seven Islands site in the north Cape.

Shortly thereafter, the city showed plans for the Matlacha properties that included new boat ramps and a two-story building and restaurant.

“We had some very nice designs that came forward and I believe that’s what we still want to do. You want to make the safety of the boat ramp better. We had it so boats wouldn’t launch into the navigational waterways,” Cape Coral Mayor Joe Coviello said this week.

The Matlacha Civic Association, though, 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.”

Civic prevailed in that request for a writ of certiorari, or judicial review, forcing the annexation ordinance back, again, to Council.

Coviello could not comment about Monday’s shade meeting, but wanted it made clear that the city owns the land.

“We’re going to decide our next steps on what we’re going to do,” Coviello said. “We need to do what the judge is telling us to do. Think about it. We own it and it’s under the county’s jurisdiction. What would you do?”

Depending on the consensus reached in Monday’s shade meeting, the matter may come back to Council at public meeting if formal action is required.