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MCA lawsuit against Cape heard by appeals court

October 31, 2018
By ED FRANKS ( , Pine Island Eagle

Last Wednesday morning, the Second District Court of Appeals heard oral arguments in the case of Matlacha Civic Association Inc. vs. the city of Cape Coral. The lawsuit challenges the annexation of property on Matlacha by the city of Cape Coral.

In December 2016, the Cape Coral City Council voted to annex 6 lots on Matlacha Island to the city. In the days following the annexation, Pine Island residents organized a series of meetings and protest rallies in an attempt to reverse the Cape Council's decision.

The Matlacha Civic Association filed a lawsuit in January 2017 against Cape Coral requesting a review of the annexation because the city "has 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."

The lawsuit was originally dismissed by Lee County Circuit Court Judge Keith R. Kyle last January. Kyle ruled that the claimants "lacked standing" in the case. The appeals judges will determine whether the Cape Coral and Matlacha claimants have "standing."

Three judges of the Second District Court of Appeals heard the case Wednesday: Judge Morris Silberman, Judge Patricia J. Kelly and Judge Daniel H. Sleet. Each side had 20 minutes to present their argument.

Steve Brannock of Brannock and Humphries represented Matlacha Civic Association and three Cape Coral residents. Brannock told the court that the Cape Coral residents in the lawsuit have a right to challenge the annexation to make sure that the Cape Coral City Council engages in "good government."

The position of the Cape Coral residents is that the annexation is unlawful because the property is not adjacent to Cape Coral and has no urban use. They residents say Cape Coral's plan to turn the property into a waterfront commercial project threatens the peaceful use of their nearby homes and their recreational use of the canal.

Brannock further argued that according to the law, the property must be contiguous and be of urban character. The property does not meet either requirement.

Brannock argued that the petitioners have standing because "It's a failure to follow procedure that leads to an improper annexation that leads to the injury that will be suffered here."

Steve Griffin represented Cape Coral in the oral arguments. Griffin's position is that the city meets the requirement for contiguity but is not required to meet the urban character requirement because urban character is not a requirement in a voluntary annexation.

Griffin contends that the Matlacha/Cape Coral petitioners can not demonstrate injury because they do not know how the property will be used. Judge Silverman countered that the statute says "who believes that he or she will suffer material injury," and that the petitioner does not have to demonstrate injury.

Florida Statute 171.081 states "Any party affected who believes that he or she will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction..."

A lengthy discussion took place between Griffin and Judge Kelly about whether "believing there will be injury" is enough for the court?

Griffin said that Cape Coral had "argued effectively that a property can still be contiguous with a body of water."

Michael Hannon, a Matlacha resident and member of the Matlacha Civic Association, attended the oral arguments.

"From the questions, it appears that the three judges believe that the Cape Coral residents do have standing," Hannon said. "The Court of Appeals will issue a written opinion soon. If the Court of Appeals rules that some or all of the claimants have standing, then the case will go back to Judge Kyle for him to rule on the legality of the annexation."

Cape Coral city officials did not respond to a request for comment.



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