Cape Coral City Council will consider an ordinance that could require canal-front property owners and others to make hefty contributions to the city’s tree fund, a fund Council previously was told was intended for developers.

Ordinance 79-24 would change a section of the land development code dealing with vacations of plats, easements and rights-of-way. The ordinance would change three components: Technical requirements for surveys and legal descriptions; require applicants to attend a pre-application meeting; and require property owners making certain applications for vacations to provide a one-time payment into the city’s tree fund.

According to city documents to be presented Wednesday, “the methodology for calculating the owner payment to the fund is specified in the ordinance to provide consistency and predictability regarding the amount of the contribution. The justification for such contributions is based on the premise that the city has a duty to ensure that public interest is realized for city assets that are relinquished for private use. In lieu of a payment to the tree fund, at the discretion of the city, the owner may construct on-or off-site improvements that equals or exceeds the value of the tree fund payment.”

The city staff presentation uses an example of a 10,000-square-foot lot with an assessed value of $40,000 or $4 per square foot. With the per-square-foot valuation divided by half, a request to vacate to vacate 1,000 square feet of right of way would cost a property owner a $2,000 contribution to the tree fund.

Depending on the value of the property, contribution costs could be higher.

At least three property owners who have made requests for the vacation of property between their seawalls and canal already have been asked to make tree fund contributions as part of city staff’s recommended conditions of approval.

These requests for vacation, which were presented to a hearing examiner in August, had required contributions included among staff’s recommendations, with two facing five-figure fees with a combined total of more than $54,000.

One applicant, Freedom Boat Co., made the request for a two-lot platted site in southern Cape Coral at the end of Montclaire Court, with frontage along the Monticello and Monterey canals.

The applicant requested the vacation of the “unexcavated” strip of canal right-of-way and platted easements adjacent to the canals, which would enlarge the property slightly to the waterfront, a common request in the Cape where the legal descriptions of parcels can fall a few feet from the actual waterline.

City staff recommended approval with conditions, including that Freedom Boat make a one-time, nonrefundable contribution of $32,722.11 into the city’s General Tree Fund, enacted by Cape Coral City Council last December as an option for developers looking to reduce the number of trees required for non-single family projects.

In a second case, the owners, Ho Thy and Phan Trang, sought to vacate a canal right-of-way and platted easement at their Southwest 52nd Street home. As a condition of approval, staff computed a $21,691.94 contribution.

In the third case, the requested contribution was $2,800.

The staff methodology was based on what the land was worth, using Lee County property records to determine assessed cost per square foot and then computed for the requested vacated area using halved valuation, rather a set fee.

In a recommendation Dated Aug. 9, the hearing examiner recommended that Cape Coral temporarily suspend the “mandatory involuntary contribution” to the city’s tree fund, imposed as a condition by city staff on those seeking what previously was routine vacation approval.

Hearing Examiner Anne Dalton recommended the temporary abatement “so as to allow for in-depth City review” of a new condition for approval that, in the case heard, placed the five-figure demand on a property owner requesting the city “vacate,” or release, the strip of property between the legal description of his waterfront lot and his seawall.

Dalton specifically recommended the deletion of the staff-generated condition of approval requiring the $32,722.11 contribution to the city’s tree fund. The staff condition also required payment before the matter could be heard by City Council, the final step in the city’s approval process.

“From testimony, it appears that the City Council has not approved, by Resolution or otherwise, imposition of this requirement on single-family homeowners and has not approved, by Resolution or otherwise, the methodology of computation of such fee if such Council approval were granted,” she wrote. She added that as the city’s Land Use and Development Regulations require Council review for such fees for developers, so, “at a minimum, City Council would review such fee imposition on homeowners as well.”

“In short, the Hearing Examiner is concerned about how this Tree Fund obligation has been implemented as to owners of individual single-family residences, and specifically the imposition of the Tree Fund fee obligation solely on Applicants for Vacation. An additional concern is the methodology utilized by staff to compute the fee,” she wrote.

The hearing examiner made a similar recommendation for a second case, which calls for a contribution of $21,69.94, but made it clear her recommendation does not apply to previous cases or others in the queue.