1/01/2008

Judge Backs Cape's Effort to Take Land


Dispute continues over value of property


By Jacob Ogles

A judge has granted Cape Coral the right to condemn a property for use as a park expansion by Sun Splash.

Judge Jay Rosman earlier this month ordered the city had eminent domain ability and could seize a property owned by Adolph and Anita Viets of Connecticut for $34,200, an amount determined by a city-hired appraiser. Eminent domain powers allow a government to take land if it can prove a necessary public need for the property and pay the previous owners fair market value.

"The estimate of value in this case ... was made in good faith and based upon a valid appraisal," Rosman wrote.

But Anita Viets said the couple has hired an attorney and demanded the matter go to a jury trial.

"We are not challenging them putting in the park," she said. "I am challenging them saying my land is not valuable."

The city's appraisal came after it made an offer of $129,900 for the property, then retracted that offer after the local real estate market crashed.

In an October hearing, Rosman told the Viets his responsibility was chiefly determining if the city had the right to condemn the property, and a jury may need to settle disputes over costs.

City broker Dawn Andrews said the city is still open to settling the cost matter out of court.

"Just because a judge has issued an order of taking does not mean we stop negotiating," she said.

Mark Lupe, the attorney representing the city, said the Viets property is one of four properties in the proposed Lake Kennedy park expansion in which the city could not negotiate a deal before beginning eminent domain proceedings. Those four property owners, including the Viets, had previously turned down offers from the city to buy the land before the city moved forward in seeking a judge's permission to seize it.

The total expansion area includes 42 properties north of Southwest 5th Street next to the Lake Kennedy Community Park area on Santa Barbara Boulevard.

The Viets came to Fort Myers to argue the case during a court hearing last month.

In that hearing, Rosman questioned city officials about how the land would be used. City parks director Steve Pohlman said it was only planned as park land and could house anything from a Sun Splash expansion to an ice rink to a picnic area.

Pohlman also said the city has a deficit of park land.

While Rosman pressed at the hearing for details, he ruled the city had done what was necessary to justify using the eminent domain ability. "The pleadings in this cause are sufficient and the City is properly exercising its delegated authority," he wrote.

Anita Viets said she remained troubled the city has placed such a low value on the land.

"If the land is not valuable, put a fence around it," she said. "Build your park and let me build on my land.

"But they said they can't do that, and they need it. If that is the case, then my land is valuable."



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