Cape Coral gated community prepares to fight city over mandatory water and sewer connection

CAPE CORAL, Fla. — Homeowners in West Cape Estates say they are prepared to fight the City of Cape Coral over a requirement to connect their private gated community to the city’s water and wastewater system.

A majority of Cape Coral City Council members gave City Attorney Alejandro “Alex” Menendez direction Wednesday to move forward with efforts to require the community to connect, including legal action if necessary. However, Menendez said his first step would be to speak with the attorney representing West Cape Estates in hopes of reaching a solution before the dispute ends up in court.

West Cape Estates currently relies on private wells and advanced septic systems. Residents Dan Root and David Horton told WINK News those systems work, and homeowners have already invested tens of thousands of dollars into installing and maintaining them.

Horton said the septic systems are more advanced than traditional residential septic tanks, describing them as essentially small wastewater treatment systems for each home. Root said the systems are computerized, inspected and permitted.

The residents say their biggest concern is being required to spend significantly more money to build new infrastructure inside their private development and connect to city utilities when they believed their community would not have to do so.

Root purchased his home about a year ago. He said he researched the property before buying it and found documents that he believed showed the property was exempt from city utilities. About six months after moving in, he said he received a letter from the city telling the community it had to connect.

“Six months later, [we] have a letter from the city that says we have to, and not only connect, they want us to engineer, provide, like they want us to rip up the roads, install it like we’re a utility company,” Root said.

Residents estimate the cost of building the necessary infrastructure throughout the 28-home development could reach millions of dollars. Root said homeowners would be responsible for funding that work, in addition to other connection costs.

For some residents, that would come after already making a substantial investment in their existing systems.

“Our neighbor right here, his house is two years old. He put in a 60, $70,000 system because that’s what he was expecting to live with for the rest of his years of owning the home,” Horton said.

At the center of the dispute is how the city and homeowners interpret documents governing West Cape Estates.

Residents point to Cape Coral Resolution 104-17, adopted in 2017. The resolution identifies West Cape Estates and includes its parcels in an appendix stating they would not be subject to assessments contemplated under that resolution under certain conditions. Horton said residents relied on that language and other documents in believing they would not eventually be required to connect.

“We were all under the impression we never were going to have to based on this. That’s our argument,” Horton said.

The City of Cape Coral interprets the documents differently.

City officials say Resolution 104-17 dealt with the financing and collection of utility assessments and did not exempt West Cape Estates from a separate requirement to connect to city water and wastewater.

The city instead points to Ordinance 20-03, the Planned Development Project ordinance approved in 2003. According to the city, that ordinance requires West Cape Estates to connect to the central water and wastewater systems once those services become available. City utilities are now available at the community’s entrance.

City Manager Michael Ilczyszyn told council members the decision could also have consequences beyond West Cape Estates.

He pointed to several other gated communities in Cape Coral that already receive centralized water and sewer service and said allowing West Cape Estates to remain on its private system could establish a precedent for other developments.

“To the extent that we deviate from that, West Cape Estates would be the precedent setting,” Ilczyszyn said.

Ilczyszyn specifically mentioned Kismet Lakes, North Cape Estates and La Vida Estates in Northwest Cape Coral as gated communities expected to eventually connect to centralized water and sewer.

Mayor John Gunter also raised concerns about treating communities consistently.

Gunter said he understands the argument from homeowners who have already invested in private wells and septic systems, but said other Cape Coral property owners could make similar arguments if West Cape Estates is allowed not to connect.

“If we approve one particular person or community that, ‘Hey, you don’t have to hook up,’ the lines will be out the door and down the street,” Gunter said. “Everybody’s going to have a different argument.”

Horton said West Cape Estates residents do not believe that comparison is fair because their community has already paid for its own private infrastructure.

“They did not have to put their own infrastructure in before they hooked up the city sewer and water. That was done by the city,” Horton said of other homeowners outside the development.

Councilman Keith Long raised his own concerns about the potential risks of litigation and questioned whether council had all of the information it needed before taking that step.

“Is that something we want to litigate? I don’t know,” Long said. “Those are the decisions that we need to be making before we just say, ‘Yeah, go ahead.’”

The city’s own agenda acknowledges that enforcing the connection requirement could lead to costly litigation. If council instead wanted to allow West Cape Estates to continue using its private systems, city staff said council would need to consider amending the ordinance governing the development and reevaluating the city’s mandatory connection policy. Officials warned doing so could have broader implications for other similarly situated properties.

The debate is already getting the attention of homeowners outside West Cape Estates.

Josh Boyd lives in Northwest Cape Coral, where he said residents are concerned about what future utility expansion could cost them. Boyd said he supports the West Cape Estates homeowners and hopes their challenge could ultimately help other Cape Coral residents facing future utility connections.

“I hope West Cape. I hope they’re successful, and I hope they actually expand, and this thing gets taken care of for all of Cape Coral,” Boyd said.

Councilwoman Jennifer Nelson-Lastra questioned whether there could be another option that would lessen the financial impact if West Cape Estates is ultimately required to connect.

“Is there anything we can do as a city to assist them if they don’t have the $150,000 right up front?” Nelson-Lastra asked.

Ilczyszyn said the city has previously worked inside private developments and could potentially manage the infrastructure project and place an assessment on homeowners’ tax bills as part of a settlement.

“We as an outcome of some settlement, we could handle the assessment, manage the work, and then put it on their tax,” Ilczyszyn said.

West Cape Estates has retained an attorney to represent the community.

Despite receiving direction from a majority of council members to move forward, Menendez indicated a lawsuit would not be his first move.

“I’ve got consensus from a majority of the council,” Menendez said. “I want you to know that my first act would be to speak with the attorney.”

For now, that leaves the city and West Cape Estates headed toward attorney-to-attorney discussions. Residents say they are willing to fight to protect the private systems they invested in, while city officials maintain West Cape Estates is legally required to connect and say allowing an exception could affect how Cape Coral handles similar communities in the future.