BLOG: Marco code board discusses fines on foreclosures, Key Marco

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— Marco Island's Code Enforcement Board is discussing fines against Key Marco Community Association and members have expressed the intent of sharing their views on the proposal to lower fines to help sell foreclosure properties as proposed by City Council members.

Lowering fines before compliance, particularly on foreclosure properties

Code Board Chairman Tarik Ayasun has said he thought the majority of the code board members were opposed to proposal by City Councilman Frank Recker earlier this month that the code board could lower fines on properties not in compliance with city regulations, particularly if it helped to sell a foreclosure property to an owner who would repair it.

"They thought they were giving us a gift and we didn't think we wanted the gift," Ayasun said today.

Code Board member Richard Adams said the board members have not had an opportunity to share their views on the issue with Ayasun or each other because it would be a violation of Sunshine Law.

A workshop is being scheduled at 3 p.m. on March 24 to discuss the issue.

Requests by property owner and seller to get code fines refunded

A parcel of land at 809 Amazon Court has had a failed approximate 160-foot seawall since August 2008. The property recently sold in a short sale process. The buyer paid the fine through a check from their attorney and the amount was credited on the sale to them by the owner. Now, both the buyer and seller are asking the city to mitigate the fines paid because they weren't able to ask for that fine to be lowered until the seawall was repaired.

"This is a confusing situation..." Chief of Code Compliance Eric Wardle said.

Several board members didn't want to hear the mitigation requests.

"This case is closed... The fines have been paid. They made the deal. This is a done deal," said code board member Joe Granda.

Code Board member Carol Glassman agreed.

"I was mystified when I saw it... I don't think it's much of an argument," she said.

Adams said he wanted to hear more because it didn't make sense at first.

"They can't both have an out-of-pocket expense," Adams said.

Jo-Ann Williamson, sister-in-law of buyer Mark Williamson, is present on her family's behalf.

"He (Mark) paid for it with the understanding that afterward he could get some relief on those fines," she said

He took ownership in late December, she added.

Marco Marine Construction repaired the seawall and was paid for by the buyer, said the buyer's Realtor Wright Taylor.

Taylor added that he and Williamson were told that the fines couldn't be mitigated until they were owners.

"He made a very, very solid effort...," Taylor said.

Fines came out of the proceeds of the sale, Taylor said.

Williamson was fined from Dec. 28, when he took ownership, through Jan. 25.

Rhodes and Tucker law firm, of Marco, made the check to the city in the amount of $84,000. The firm represents the buyer, Williamson.

The price was reduced by the amount of the fines.

However, the buyer is saying that fines beyond those already paid continued to accrue.

Both the buyer and seller are asking for mitigation.

The buyer wants mitigation for the fines paid since they took ownership and the seller wants part of the fines already paid returned. They had wanted mitigation earlier, but could not request it until in compliance, based on current city codes.

Currently, the code board only has power to mitigate fines after compliance. Some real estate professionals, city council members and neighbors of foreclosure properties would like mitigation to happen sooner to help motivate people to buy homes that have liens and code violations.

The bank had not yet foreclosed on this property because the fines needed to be paid first before they would sell, said Taylor, the Realtor.

Joanne Williamson clarified that she does not only want to mitigate the additional $1,500 in fines, but also the earlier paid $84,000.

"Who is out the money, is the question," Wardle said.

Jon Shamres, the attorney for the Code Board from the law firm Weiss-Serota that represents the city, said mitigation could come for any party with interest.

Wardle said the violation began in August 2008 and until a buyer came up, no one contacted him.

"It appears to me, the seller took the loss on this," Wardle said.

Code Board members said they wished the other party, the seller, was also present.

"Once again we're penalizing the individual who got a wrong right," said Code Board member Lou Prigge of the fines being paid by the buyer.

"It's not about punishment," said Granda.

"It's a fine. What is that, a reward?" Prigge said.

"It's something they have to pay," Granda replied.

He reasoned that the buyer could get mitigation on the fines they actually paid, which was $2,200 for the 12 days the owners waited to get a city permit approved to repair the seawall.

"Essentially this is a question of how to divide up the loss," Adams said.

The closing statement on the property gives a credit to the buyer for the $84,000 fine paid.

The buyer was refunded $200 per day from the day of closing to the day they got the permit on a vote on a vote of 5-1 with Glassman voting 'no.'

"I just don't know where the money is coming from," Glassman said.

Following the decision, Jo-Ann Williamson said she didn't think the board understood who paid the fine.

If it weren't for her brother-in-law, the city would not have received $84,000. He wrote the check and the seller took it off the sale price of the home.

"In a perfect world, he wanted $43,000 back to pay for the seawall because that fixes the problem," said Taylor, Williamson's Realtor.

Taylor said the city should stop fines when a purchase agreement is made between a buyer and seller and if that agreement falls through, then the fines should go back to the original amount.

He added it would benefit the buyer and the seller.

"The only one it (mitigation before compliance) wouldn't benefit is the city," said Taylor.

Key Marco

Key Marco Community Association was slapped with fines and a requirement to mitigate what the code board ruled about one year ago was irreparable damage to protected habitat in Key Marco.

Key Marco has submitted three vegetation mitigation plans and each have not met the standards of the city's Community Development Department.

City Environmental Specialist Nancy Richie has been the key person reviewing the mitigation plans, Wardle said, because of her expertise.

Wardle and Community Development Director Steve Olmsted also declined their mitigation proposals.

The mitigation plan was due June 15 and after it was declined, Key Marco had until July 24 to present a new plan. The plan was declined because new planting was not included in the plan and was the key part of the mitigation requirement.

A new plan was presented nearly six months late, on Jan. 7, Wardle said.

That plan was also declined by Richie, Wardle and Olmsted because planting was still not included.

Wardle said the case was added to Code Board agenda for today with the proposal of fines for $250 per day beginning July 24.

On Friday, Wardle said, a third plan was presented, but it too was declined.

The reason o, that Key Marco presented a second mitigation plan.

Casey Weidenmiller, the attorney representing Key Marco, said his belief was that this would continued if a mitigation plan was submitted.

"I think we're seeing another example where the staff is not working with my client," Weidenmiller said.

This plan was also not accepted because of the condition that Key Marco wouldn't begin mitigation until their civil suit against the city and code board for the earlier fines is still being argued in court. That court case, scheduled on Friday, was canceled as the parties, which include Greensward landscaping, Key Marco, City of Marco Island, Code Enforcement and the Conservancy of Southwest Florida, are attempting to reach a settlement agreement, Recker and other city officials have said.

Wardle said he didn't mind having a continuance and had no objection, but there was not a request for a continuance made.

"I remember a year ago when you said we shouldn't even be here, this should have gone directly to mitigation... Now we're here a year later still waiting to mitigate," Prigge said.

"If we were running a marathon, we'd be in the last mile or two," Weidenmiller replied.

Olmsted said the most recent mitigation plan is largely acceptable to the city other than two concerns.

"So you're saying we're going to come to an agreement. This isn't going to come back here?" Ayasun asked of Olmsted.

"I make a motion we go the Esplanade and celebrate," Prigge said, drawing laughter from the officials in the room.

"There is an order and somehow there was a circumvention, to put it mildly.... You didn't like what we said and you tried to go around us," Ayasun said.

"This may still come back here... because there is a fine here," Ayasun said.

Adams said he took exception to that view.

"I think you're belaboring the point," Prigge said to Ayasun.

"I don't have a problem with the continuance per se... fines from June 15 until corrected are $250 per day and you're going to have to deal with that sooner or later," Granda said.

"I understand that," Weidenmiller said.

The continuance was approved 6-0.

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