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Can the city remove my landscaping from the swale?

April 24, 2020
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler,

We live on a street the floods often in the summer, and the city recently performed swale work to improve drainage. During the process, some landscaping was removed and not replaced. Do they have a right to remove our items like this?

- Joe C.

Dear Joe,

This is a question that comes up frequently in our city. With over 120 square miles, the city faces a daunting task of keeping drainage functioning, which involves constant swale improvements. It often comes as a surprise to many of my clients that Cape Coral properties do not end at the street. Typically, your property ends 15 feet from the street. The 15-foot area is known as "right-of-way," which, for our purposes, is reserved to the city for its purposes. In addition to this, the first 6 feet of your property is also not completely yours, either. The city reserved a 6-foot public utility and drainage easement around your property, as well as every other lot in the city. So, for most people, the first 21 feet of their property could be used for municipal purposes.

When people place plantings in the right-of-way, I know personally the city attempts to leave these in place. However, the "planter" takes the risk of the potential for the need for the plantings to be removed, and the city is not legally responsible to replace them. In Cape Coral, the city only allows sod in swale areas, which serves the legitimate purpose of making drainage as efficient as possible. As with any issue you may have with the city, it is always a good idea to discuss your concerns with a staff member, which may include a call to the Citizens Action Center, at 574-0425.

Eric P. Feichthaler has lived in Cape Coral for over 30 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at, or (239) 542-4733.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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