KELLY FARRELL / Staff

Occupants in the lower level of this residence at 550 Conover Court may need to find another place to live. The Code Enforcement Board ordered the kitchen, living room, bedrooms and bathrooms to be demolished or a variance approved to allow for the below-flood living space to remain.

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The first floor of a two story Marco Island home is at risk of being demolished because it exists under the flood plane violating city code.

Currently three bathrooms, three bedrooms, a kitchen, living area, electrical work and air-conditioning unit are all at stake of demolition because they exist below the 11-foot permissible flood plane.

“This is a million dollar decision,” said the home’s owner Joseph Borsellino as he approached the Code Enforcement Board Tuesday.

The decision was the first of at least two costly votes. Later in the afternoon, the board unanimously voted to approve the first request for foreclose in the history of Marco Island’s Code Enforcement office.

While no one showed up in their own defense for the foreclosure case, Borsellino, family and attorneys pleaded with the board to allow them due process in order to save half of their six bedroom, five and half-bath home at 550 Conover Court, Marco Island.

Borsellino said he bought the 25-year-old home because the lower level was ideal for his elderly mother and aunt who could live in the lower level, not needing to struggle to go up and down stairs.

“I just thought it was a two-story home like anyone would. I never would have bought it,” he added.

Many code board members said they saw the issue as black and white. The living area may be a health safety issue for the residents of the home and no living space greater than 299 square feet is permissible under flood level.

“Mr. Borsellino has a big investment here. You have somebody with one extreme hardship and who didn’t know what they were getting into,” said Marco Island real estate attorney Craig Woodward who represented the homeowners.

Woodward maintained that his client “didn’t do any of the work” and because he bought the home with cash, all of the normal safe guards such as a survey usually requested by a mortgage lender did not exist.

“I have a lot of empathy in this case. I believe based on all the evidence that the work wasn’t done by (Borsellino),” said code board member Jose Granda.

Code enforcement officials said it wasn’t a matter of who did it but whether or not a violation does in fact exist.

“I’m not aware of any condition where you could determine the violation condition exists and you’re not going to do anything,” said the code enforcement board’s attorney Jonathan Shamres.

The Code Enforcement Board voted 6-0 requiring the homeowners to either demolish the areas in violation or to seek a variance from City Council.

“We’ve already began putting together the paperwork to apply for a variance,” said Woodward’s assistant attorney Jennifer Tenney.

At least one challenge in the request for a variance may lay ahead of the Borsellino’s and attorney team.

An e-mail from a FEMA official to Bob Devlin indicates that an “egregious variance” could put the city’s community flood protection rating at risk. The City of Marco Island currently has a rating of six, said City Community Development Director Steve Olmsted, adding that the rating is “very good.”

The rating of six gives property owners a 20 percent discount on flood insurance. The city is also working toward attaining a rating of five in the next year, which is extremely rare not only in Florida but across the nation. A rating of five would give property owners a 25 percent discount on their National Flood Insurance Plans.

There is some concern by city staff that if City Council did not strictly adhere to the guidelines for variance approval that the community rating and therefore residents’ flood insurance rates, could go up.

In a second costly decision, the board unanimously approved sending a request to the City Attorney to foreclose on a property at 266 Seminole Court owned by Lazaro Carret for failure to pay over $70,000 in fines. Fines were imposed because the seawall was in need of repair or replacement and the owner neglected the problem for over a year and a half. This is the first request for foreclosure in the history of Marco Island’s Code Enforcement office. Code enforcement was incepted in 1999.