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Reject mediated settlement

December 11, 2010
Cape Coral Daily Breeze

Prior to their election to office, two members of the Cape Coral City council filed suit against the city, contesting how the Cape assesses property owners to pay for utility infrastructure improvements.

Council is now scheduled to meet in closed session on Wednesday to discuss the proposed, mediated settlement for Mayor John Sullivan, Councilmember Bill Deile and a private property owner. At the heart of the suit is whether charging some residential property owners more because their homesites were larger than a standard lot was unfair.

The mayor and Councilmember Deile each have said they will not attend the "shade" session permitted by state law for meetings called to discuss legal strategy in pending or on-going litigation.

That's a wise move as we are confused as to how a meeting that can be closed by law specifically to exclude litigants suing a governmental agency from having unfair advantage can be open to elected officials seeking compensation from the taxpayers they serve.

Rejecting a cash settlement of these nuisance suits also would be a wise move.

We urge council to do just that.

The city has spent close to $80,000 fighting claims deemed by counsel to be without merit: The city has the right to develop methodology to assess property owners for improvements that will directly benefit those properties. The city has used the square-footage assessment method throughout two decades of expanding water, sewer and "dual" water services throughout the city and has prevailed in previous challenges. Case law further has upheld the rights of governments to develop assessment methodology and apply it on a uniform basis.

What is proposed now is to throw another $10,001 into suits used by the elected officials as for-the-people political fodder: $5,000 for Councilmember Deile, who will donate $1,500 of that to the city's Charter School System's Scholarship Fund and $1 for Mayor Sullivan, to be donated to the American Cancer Society. The settlement also calls for $5,000 to the private property owner, who also would donate $1,500 of that to the city's Charter School System's Scholarship Fund.

If the city is to, in fact, throw more money at this lawsuit, the cash could be better spent gearing up for court so as to answer the question the litigants maintain spurred the suits: Is the city's assessment methodology legally sustainable?

Again, according to previous challenges, the answer is yes but so be it, better to answer the latest query with a legal finding than to open the door to similar challenges once the Utility Expansion Program gears up again as certainly it will.

As to the fairness doctrine raised by our now- city officials in their suit, rejecting the settlement also is the fairest choice for all the other residents assessed under the same methodology but who now have no ability to follow suit, so to speak.

The settlement being offered to our elected officials is timed to be voted on after the statute of limitations has passed for their particular expansion area. Only these two, and the lone property owner who has already taken issue, would receive any relief.

So much for the spurious for-the-people justification for continuing the suit as legal costs have mounted.

In addition to urging the six council members who can vote to reject settlement-neither the mayor nor Councilmember Deile can vote when this ultimately comes before the board for public consideration - we have two suggestions for the elected officials involved: Reject the settlement proposal yourselves, even if you view the amounts as "tokens" that will benefit charity.

Then drop your lawsuits and save the taxpayers not only your portions of the settlement but possible court costs should the private property owner opt to follow your good example.

Meanwhile, if you truly believe the assessment methodology is unfair, change it. You have enough votes on council and have had a year to address the matter yet have not.

The city's decision to fight this suit was a wise one.

We can't say the same about our elected officials' continued pursuit of the same, which now calls for accepting some sum of money from the very people who have paid assessments, impact fees, monthly utility bills and, thanks to the challenge, a substantial amount in legal fees, all without addressing the methodology issue one whit.

Some leadership, some long-term vision, is needed here - and it needs to come from every member on the dais.

- Breeze Newspapers



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