MARCO ISLAND — Marco Island Code Enforcement Board is considering altering their approach as foreclosure cases create new dynamics in blight, compliance and high fees.
City officials have debated amnesty, mitigation before compliance and other programs as they see increasing fines mounting, neighbors of foreclosures suffering from eyesores and, at times, damage to their own property.
Tonight the board is considering two alternative draft ordinances to allow for mitigation before compliance with city code.
The primary differences between the two ordinances includes whether to set a specific date for compliance and payment before mitigation is final or to be flexible by allowing for timely compliance and payment. The other difference between the drafts is whether appeals of mitigation cases should go to City Council or Circuit Court.
Code Board Chairman Tarik Ayasun said that due to Florida Statute 162.09, which states that City Council cannot reduce fines set by a code board, he would like the city's new ordinance to reflect that state law.
"It politicizes the issues," Ayasun said. "You can't take something here where it's judicial and then go to the people who are elected and not selected."
"It's not a power that was given to the City Council and I don't want to give it to City Council," he added.
Chief of Code Compliance Eric Wardle said he didn't think the Circuit Court would even entertain a request to lower fines beyond what the code board decided when the respondent was not appealing the finding of the case.
"That's exactly my point," Ayasun said.
Community Development Director Steve Olmsted is recommending City Council retain their power to lower code fines.
Currently city code prevents the code board from lowering fines until property owners bring their homes into compliance with code.
High fines accruing, particularly on homes in a state of foreclosure, are preventing sales, which might be avoided with a new owner occupying the home, who would bring the property into compliance and keep the property in compliance-- at least that's what some Island Realtors, code board members and council members have said of their take on the foreclosure code case issues. Encouraging sales may also help return more properties to the tax rolls.
Code Board member Lou Prigge said he wanted to see the city's average fine of $250 per day be handled differently in cases, such as failure to connect to the city sewer, where there is no safety issue. He said that violation alone quickly adds up to fines of $40,000 or more making no one want to come in and buy the property.
"The fines are so ridiculous for the problem. Something has to give. It becomes a deterrent to anyone who wants to buy," Prigge said.
Code Enforcement Board member Richard Adams said one of the issues he wanted to address is finding the person of standing in the cases, which is one of the most difficult factors code officials are facing when violations are first discovered on properties in a state of foreclosure.
Adams also wanted time frames for compliance and fees to be tightened up.
Code Enforcment Board Member Joe Granda questioned the legality of whether banks as owners could be treated differently than owners who occupy the homes. Code Board attorney Jon Shamres, of the Weiss-Serota law firm, which represents the city, did not immediately advise of Granda's concerns.
As finding responsible parties was among the primary concerns voiced by most board members, Shamres said the concept of standing is not whether they can make you a promise but whether they have a financial interest.
Granda wanted a good faith estimated amount of money paid to the city and put in escrow to cover the cost of making improvements to the property.
"Our goal is to mitigate a fine if not in compliance. That I think would provide motivation to get into compliance," Wardle said.
"True, but if you hold him tight, you'll get him into compliance... I would like to hold him tight with some kind of bond," Ayasun said, clenching his fist.
Shamres, and some board members, said they were concerned with the administrative problems with bonding or escrow accounts.
The funds in escrow would be used for bringing the property into compliance, Granda proposed.
Another problem is that the city may not have the right to fix the problem, pulling the permit and entering the house, Wardle said.
"There are scenarios where the city isn't in the position to correct a violation," he added.
"This is problematic," Adams agreed. "Cash is better than a bond."
Chairman Ayasun said maybe they were working too hard trying to write new legislation tonight when attorneys and City Council may be better suited.
Community Development Director Steve Olmsted questioned the practicality of the city hiring contractors using fines that were paid and held in escrow in the case where the property remains out of compliance.
Wardle suggested a deposit to a contractor made by the owner may be an alternative to escrow.
"The main objective of this whole workshop thing is we want compliance. Fines don't interest us... Fix the seawall so the neighbors on each side aren't affected by it. Let's find the mechanism to do that," Ayasun said.
Shamres wasn't immediately in agreement with Ayasun's understanding that City Council may not lower fines.
"We may have a disagreement between the chairman (Ayasun) and the city's attorney office on the nuances of this," Shamres said.
Granda and Ayasun said they sought other attorneys' advice and they agreed the proper body to mitigate fines was not City Council.
Shamres said he found it odd for them to seek legal advice from others, but didn't want to debate his legal opinion.
"I refrain and demur from defending my work... Tarik (Ayasun), if you want to be an attorney... What the statute says, what your chapter 14 says, what the attorney general says, studying case law... that's what attorneys study to do.... You practice for years and years to be able to interpret things... It takes too long and it's too expensive to do things two or three times," he said.
"You don't have to be defensive," Ayasun quipped.
"I don't have to be an attorney to read this statute," he added.
Once a lien is recorded, it becomes an amount due to the city and only City Council, as the governing body, can mitigate that, Shamres further explained.
Granda said he may not be an attorney, but he can read, reason and question.
"Let's be candid here, ever since a city councilor got involved in the Key Marco case, this board was upset," Shamres said.
"It's not personal," Ayasun said, then bringing the discussion back to the proposed ordinances.
Shamres said he could have an ordinance prepared allowing for mitigation without compliance in two weeks.
"I expect hugs after we adjourn," he said.