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Annexation battle is not over

December 28, 2016
Pine Island Eagle

To the editor:

I write about the proposed annexation of land in Matlacha by the City of Cape Coral. As a new resident of Matlacha, I have spent the past five days trying to figure out why Cape Coral wants this land in its city and why Matlacha, Cape Lacha, northwest Cape Coral, and Pine Island oppose the annexation. I am not finished my journey; but, here is what I think:

I did some digging in your archives, and I found that the current dispute goes back a long way. Around 2008 Cape Coral City removed the Ceitus Boat Lift Barrier which formerly held back from Matlacha Pass the flow of polluted stormwater from the developed land in Cape Coral City. Obviously, when the Cape Coral canals were first dug, there was no department of the environment requiring a stormwater management plan, and it appears the canals serve that purpose.

Folks in Cape Coral apparently wanted to gain boat access to the Gulf from their labyrinthine canal system. That makes sense to me. So the city removed the Ceitus Boat Lift Barrier. When that happened, 30-plus years of polluted sediments behind the barrier were scoured out, carried downstream and deposited into a formerly ecologically diverse and very productive estuary: nursery to snook, tarpon and Florida gold shrimp. The salinities of the little back bay of the Preserve dropped to zero, killing filter-feeding water-cleansing oysters. These waters are habitat of 86 threatened and endangered species.

I used google earth to view the land in Matlacha proposed for annexation, and saw that the canal goes north along the edge of the Seven Islands, of the Ceitus Boat Lift and to the north end of Cape Coral. You will see the mangrove and the Matlacha Pass into which the Cape Coral stormwater began to run.

The city was challenged by a fellow named Phil Buchanan, Cherokee Indian heritage and retired from the CIA. He died in May of this year, and Pine Islanders speak of him with near reverence for his advocacy of the environment and selfless devotion to his neighbors.

Phil and others went to the Florida Department of the Environment and achieved a Consent Order with the city. Under the Consent Order, the city promised to rebuild the Ceitus Boat Lift and promised "better" environmental options-neither of which ever materialized. Phil and his colleagues sued Cape Coral. I have reviewed the FDEP documents and the court case. I invite others to enlighten me, but it appears that with Phil's death, the hope of Cape Coral rebuilding the Ceitus Boat Lift must be left to another.

So I go up the road to take a look at the Ceitus Boat Lift and the area where the Cape Coral run-off continues to enter Matlacha Pass. What a breathtaking vista to the west: the mangrove, the canals, the birds, manatees and wildlife. Except for the water. I learned that these lands are called the Matlacha Pass Aquatic Preserve, an environmentally sensitive estuary with five levels of state and federal protection: including Class (I or II) Florida Waterway, part of CHNEP (Charlotte Harbor National Estuary Program), GEMS (Gulf Ecological Management Site), and Aquatic Preserve. When I asked about the water, a long-time resident and environmental biologist told me that no state or federal agency seems to assume responsibility for its protection and preservation. I was concerned, because as a recreational boater, I know that if you were caught spilling boat oil in these waters, you could go to jail.

Then I learned about Cape Coral's "Seven Islands" development plan. It appears that your astute readers know all about this. What I found out from court records is that in 2012 a developer operating under the name Thieman Enterprise got into some difficulties and surrendered his recently purchased properties to the bank. The Thieman properties included land outside Cape Coral, as well as the land now known as the Seven Islands. The properties outside Cape Coral consisted of the lots in Matlacha - the subject of the current annexation dispute - and lots in St. James City.

The city bought the entire package at auction in 2012 for over $13 million.

I thought this purchase of land by the city outside the city limits was at least odd. A city is a legal entity created by its State's citizens. In the tradition of our country to favor individual freedoms over government, a city may not exercise powers ordinarily enjoyed by a citizen of the State. For example, a city cannot operate a Wawa. It would be unfair, because the city could easily out-compete its rivals. One exception I can think of is the controversial power of eminent domain. However, a city can only exercise eminent domain over land within its boundaries.

So I think a city should only purchase land to fulfill a legitimate municipal objective. In reviewing the news articles in 2012, there appears to have been significant legal concerns raised at the time. The materials I have reviewed have not convinced me that the city lawfully could purchase the Thieman properties located in Matlacha and St. James City. In reflecting on this, it appears to me that the city went ahead with the purchase because the non-city land was bundled at auction with the city land: hence, I will give the city the benefit of the doubt and assume that expediency prevailed over the law. At the time, I am told, the Council and others promised the public quickly to sell the Matlacha and St. James City land, no doubt realizing a quick and tidy profit. Okay with me.

But that did not occur, and it is hard to enforce such assurances or even prove them. I believe the actual price paid for the Matlacha lots was less than $500,000. I understand that later, Cape Coral refused to sell even one lot to neighboring restauranteur Miceli's for $1,000,000 or $1,500,000. So, I wondered, what business was the City getting into?

The evidence seems to suggest that either the Council or its Planning Staff or both got excited about the Seven Islands, part of the Thieman purchased lands already in Cape Coral. These "islands" are actually dredge spoil islands. Apparently the Council became enchanted with the idea of becoming wealthy land developers. So, the Council pushed for the current plan to build 8-story mixed-use structures on these eco-islands, adjacent to the Matlacha Mangrove to the west and the community of Matlacha Isles to the east. I reviewed the process of selecting this plan, and find it hardly transparent. I also wonder how the city thinks this plan will survive environmental scrutiny.

As part of the development plan for the Seven Islands, the city apparently re-focused on the land in Matlacha on Pine Island Road. By annexation, the city now proposes to build a triple boat ramp marina, no doubt to augment the Seven Islands project up the canal. This is another project unlikely to survive environmental scrutiny. However, like the promises in 2012, there is no guarantee the City won't decide to build a Wawa on the canal.

So now to the annexation. The city is using the Florida Annexation statute to accomplish its takeover of the Matlacha land, and then re-zone it under Cape Coral laws to who-knows-what. They are using the "voluntary annexation" section which permits annexation if a city and the contiguous landowners consent. The statute is meant to be used where the adjacent land is owned by someone other than the city - as my daughter would say, "no duh." Since the city - in my opinion - unlawfully owns the adjacent land itself, there aren't two "sides" to this annexation. Interestingly, if this is a permissible use of the statute by the city, then no one can appeal the annexation because only an "affected party" can appeal. There is no "affected party" under the statute because the city is on both sides.

If this is a permissible use of the statute, then any Florida city could buy adjacent land and then start chomping away at the rest of the county. Cape Coral could use its significant funds, its immense purchasing power, and its tax-free overhead to chomp through Matlacha and Pine Island. The more land the city buys, the less the county receives in property taxes because the city is tax exempt. I think this is wrong, because Cape Coral could not accomplish the same thing through eminent domain.

The purpose of the annexation statute - it seems to me - is to permit residents of a county to choose through the democratic process whether to merge with an adjacent city. The purpose of the statute, as clearly stated by the Florida legislature, is to promote urban growth in areas of the county adjacent to a city where the residents want to have the sewer, water, police, fire and other services the city can provide. The statute is not intended for a city to act like Pac-Man.

So, to me this is a bit of a crescendo: the unlawful purchase of the Matlacha land in 2012 now leads to an unlawful voluntary annexation. Cape Coral will say it is our land, so we can do with it what we want. But this un-neighborly act simply builds on the 2012 unlawful incursion into the county and Matlacha. Even the biggest of big government proponents would not concede that a City may engage in land development, just for the sake of making money.

If the annexation were truly an arms-length process, Cape Coral would be required to engage in significant planning in advance and to conduct a referendum. I believe the law is not an ass, and a moderately educated person ought to be able to understand it. I think this is easy to understand.

Reportedly there is a lot of anger on both sides. I know there may be good arguments on the side of Cape Coral, and I had hoped to hear them at the Monday hearing. My personal opinion as to the solution? Cape Coral should sell the land, preferably to a conservancy. The price should be the same price Cape Coral paid for it in 2012. The result would be that the future of the Matlacha land would be controlled by Lee County, in which we are voting residents.

However, that is not what occurred at the City Council hearing. The Ordinance barely passed; however, Council Member Williams - who proposed the Ordinance in the first place - voted against the Ordinance. Why? Because his colleagues refused to postpone the vote to allow folks from Pine Island and Matlacha to present their arguments to the city. Council Member Williams is a wise man - he knows what he does not know.

So now, I have made up my mind. Because Cape Coral refuses even to listen, it has a battle on its hands. If you are interested in joining the battle, check us out on Facebook at Pine Island Strong.

Michael Hannon




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