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Matlacha Civic Association seeking to recover legal fees from annexation lawsuit against Cape

By Staff | Sep 25, 2019

As Cape Coral City Council readies to discuss its options in the wake of an adverse judicial ruling overturning the annexation of six city-owned lots in Matlacha, the victorious challengers to the action are gearing up to recover legal costs.

The bid to recoup fees expended by the petitioners should be coming forward in the next few weeks, according to Matlacha resident Mike Hannon, who added that given the findings of Lee Circuit Court Judge Keith Kyle, the city would be best served by dropping its plans to make the parcels part of the Cape.

“My personal opinion is that a prudent City Council ought not to go forward with any kind of additional efforts to annex these lots,” Hannon said. “In about three weeks we will file for our attorneys’ fees somewhere in the range of $50,000 to $100,000.”

The suit originally included petitioners from both Cape Coral and the Matlacha Civic Association. Only the Cape Coral petitioners were ultimately found to have standing to challenge the city action. This should not impend the pending filing for full reimbursement, Hannon said.

“The Court of Appeals ruled that ‘petitioners’ are entitled to legal fees if they prevail in the Circuit Court. They won in the Circuit Court,” he said.

“So, the Cape Coral petitioners are entitled to recoup the legal fees for proceedings in both courts. Our position, supported by case law, is that the Court should award fees for the entire case. The number of successful petitioners does not change the total amount of legal fees sought.”

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.

On Tuesday, Sept. 10, Kyle “quashed” the annexation ordinance passed by the Cape Coral City Council in 2016, ruling, “having reviewed the facts and the arguments of both parties, the Court finds that the petition for certiorari should be granted.”

The Matlacha Civic Association challenged the Ordinance (57-16), asking for a legal review, on two grounds: 1) the property is not sufficiently contiguous with Cape Coral, and therefore, can not be annexed, 2) the ordinance’s passage was not supported by sufficient competent, substantial evidence that respondent (Cape Coral) would be able to provide city services to the property.

“The critical, geographical point that is important to recognize is that the lots they want to annex have to be contiguous to Cape Coral,” Hannon said. “The rules of contiguity say that the borders have to be substantial and the only place where there’s actual contiguity arguably is from Sirenia Vista Park.”

Hannon used Google Earth to show where the proposed annexed property lies in relation to Cape Coral and surrounding protected lands of the Pine Island Sound/Matlacha Pass Watershed.

Kyle’s ruling states, in part, that, “In order for property to be voluntarily annexed into a municipality it must comply with Fla. Stat. 171.0413 and 171.044. Among other requirements, the property must be ‘contiguous’ to the municipality’s existing border.”

“The geography of this will never change,” Hannon said. “As a consequence, in my view, the city of Cape Coral will never be able to demonstrate the contiguity that is required under the annexation statute.”

The presence of a canal between the municipality and the annexed land cannot defeat annexation unless the presence of the canal prevents the two properties from acting together as a city.

The judge also ruled that the annexation ordinance passed by Cape City Council in 2016 “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 Cape Coral City Attorney’s Office was scheduled to meet with the Cape Coral City Council in a “shade” meeting an attorney-client meeting not open to the public to discuss the matter – Monday afternoon.