Marco civic group sues to block miniature golf course approved by city officials

Roger LaLonde Staff
A miniature golf course is under construction at 981 Winterfberry Drive on Marco Island. The course is the object of a lawsuit, filed by the Marco Island Civic Association. The suit claims that the owner of the course did not get approval from a homeowners association for the consturction.

Photo by ROGER LALONDE // Buy this photo

Roger LaLonde Staff A miniature golf course is under construction at 981 Winterfberry Drive on Marco Island. The course is the object of a lawsuit, filed by the Marco Island Civic Association. The suit claims that the owner of the course did not get approval from a homeowners association for the consturction.

— It looked like a hole in one for a Marco Island miniature golf course that received unanimous City Council approval a year ago.

But the fate of the 18-hole Marco Golf & Garden, which is under construction, may rest in a Collier judge's hands. That's because property owners Fred Kramer and Marianne Tirri Kramer didn't receive approval from the Marco Island Civic Association (MICA).

Like many developments overseen by homeowner associations, much of Marco Island is a deed-restricted community governed by MICA, which in 1986 took over old Deltona Corp. deed restrictions set up to protect the island's integrity, preserve property values and ensure new construction conformed to the original 1965 restrictions.

"It's a deed-restricted island," said Naples attorney Jeffrey Fridkin of Grant, Fridkin, Pearson, Athan & Crown P.A., which represents MICA. "The deed restrictions matter because fellow property owners have rights under the deed restrictions.

"The government doesn't have the power to change the deed restrictions," he added, noting that he and MICA have won this legal battle before, including a case decided nearly a decade ago by a Florida appellate court.

So MICA recently sued the property owner, Donna Di Promessa LLC, headed by the Kramers, who are building the mini golf course at 981 Winterberry Drive, next to Sasso's International Cuisine & Seafood. That restaurant property, which is providing the required parking, is owned by Donna Di Promessa.

The lawsuit filed in Collier Circuit Court in mid-January notes that MICA, Marco's largest and most powerful civic group, sent a letter to Di Promessa and contractor Stephen Hennell last month, demanding they submit plans to MICA's Architectural Review Committee for approval before beginning construction. A second letter on Jan. 7 cautioned that they'd sue to enforce the deed restrictions.

The lawsuit says Di Promessa failed to respond and refused to correct the violations.

The lawsuit seeks an injunction to halt construction of the mini golf course until the project receives MICA approval, contending MICA will be irreparably harmed if the deed restrictions aren't enforced. It also asks a judge to force Di Promessa to comply by removing the improvements and to require building plans.

On Friday, a generator hummed as a Morca Contracting Inc. worker stood atop a ladder, drilling and hammering the roof on the mini golf course's 500-square-foot clubhouse. Around him, artificial turf fairways lined with bricks and connected by terra cotta, concrete paths zigzagged through dirt. Jagged rock formations and palm trees dotted the course, which plans say won't be like the usual miniature course, but will feature a tropical theme, with bushes, trees and plants surrounding ponds.

The foreman said he knew nothing about a lawsuit or halting construction.

The miniature golf course was one of two approved by the Marco Island City Council last year.

Fred Kramer previews the Planning Board in 2011 on his miniature golf proposal. Lance Shearer/Eagle Correspondent

Photo by LANCE SHEARER // Buy this photo

Fred Kramer previews the Planning Board in 2011 on his miniature golf proposal. Lance Shearer/Eagle Correspondent

Ron and Julia Smith's plans for a course at 902 Park Ave., next to Veterans' Community Park and McDonald's, also were approved. But the couple, who paid $435,000 for the lot, abandoned the project after Kramer's course was approved by city leaders.

"That is great news for us," Julia Smith said recently after hearing about the lawsuit. "The island is not big enough for two mini golf courses. We didn't want to risk our investment. It was so heartbreaking to us."

She said they'd searched hard to find a perfect location that wouldn't affect residents and their Realtor cautioned them about MICA's restrictions. Ron Smith said they'd received "MICA's blessing" and was told MICA would stop the Kramers if they moved forward without MICA's approval.

"They said he (Kramer) knew better," Ron Smith said, adding that they will look into renewing their plans now.

Marco Island city records show 74 residents signed a petition opposing the Kramers' plans. In addition, there were six letters expressing disapproval due to late-night hours and increases in noise, lights and traffic.

This artist's rendering shows how one of the proposed putt putt golf courses might look, on Winterberry Drive next to Sasso's Restaurant. Courtesy / Attorney Fred Kramer

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This artist's rendering shows how one of the proposed putt putt golf courses might look, on Winterberry Drive next to Sasso's Restaurant. Courtesy / Attorney Fred Kramer ................................................................

City officials couldn't be reached for comment despite repeated attempts this past week.

Kramer, a lawyer on Marco Island, has represented MICA in its deed restriction battles. His law firm's website shows he disagrees with MICA continuing to enforce decades-old Deltona Deed restrictions, contending they cannot be enforced due to the Florida Marketable Record Title Act."

Today, Kramer filed an answer and counterclaim, alleging that the restrictions are nearly 39 years old and were "extinguished" by the Marketable Record Title Act and that the original developer, The Deltona Corporation, and, later, MICA failed to enforce the commercial restrictions, so MICA can't selectively enforce them against the miniature golf course years later. The counterclaim also contends MICA effectively "taxes" property owners by charging them to obtain a review and approval from its Architectural Review Committee.

"We view MICA’s lawsuit not so much as one seeking to protect the community from the evils of miniature golf, but rather, as one seeking to protect its cash cow, its Architectural Review Committee, which has apparently generated hundreds and hundreds of thousands of dollars over the years, and which seeks to continue to generate substantial income in the future," Kramer said in a statement issued today.

The Deltona Corp. developed the island's Marco Beach unit blocks and commercial areas. Its restrictions are renewable every 10 years, unless a majority of MICA votes against it.

Letters posted on Kramer's website show he was poised for a battle in 2010, when he wrote to MICA, alleging it had selectively enforced restrictions, some were recorded past deadlines and that the restrictions no longer were enforceable under Florida law.

"My concern is that MICA did not have any authority to execute and record any of the notices of continuation," Kramer wrote, providing deed restrictions, state statutes and a Florida Bar Journal article about the Florida title act's effect on old deed restrictions.

He contends MICA is a voluntary association, not a homeowners association under the law, so it has no right to enforce the restrictions.

But MICA's 2010 letter denied the Florida title act extinguished its abilities to enforce the restrictions and pointed out that Kramer, who had represented MICA, knew about its confidential "thought processes" and enforcement.

MICA has fought the fight before. In 1999, Marco Island dentist Dr. Luc Christian Mazzini sued MICA after it enforced deed restrictions, prohibiting him from building a two-story medical office on three San Marco Road residential lots in an area Mazzini maintained had become more commercial.

His class-action lawsuit came after MICA had successfully sued him and Deltona Corp. over the proposed project. An appeal court upheld a ruling by then-Collier Circuit Judge Ted Brousseau in MICA's favor.

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Comments » 30

WizeOlMarco writes:

What about the 'rule of law'?

The news story indicates the issue of MICA's legal standing regarding building projects has already been legally tested and MICA won (through the appelate level; State Supreme Court would follow). Investors beware.

PS I agree, the parking in Old Marco is out of control, this year's twist, restaruant employees using the street swale to park their vehicles.

RayNetherwood writes:

"Ignoring" the other side isn't a good idea. But, a stop work injunction should have been filed months and months ago. Construction has been ongoing a long time. I can see the future noise complaints .... mini golf courses for some unknown reason play background annoying music at a billion decibels .... that CAN NOT be tolerated at this location.

MrsT writes:

in response to RayNetherwood:

"Ignoring" the other side isn't a good idea. But, a stop work injunction should have been filed months and months ago. Construction has been ongoing a long time. I can see the future noise complaints .... mini golf courses for some unknown reason play background annoying music at a billion decibels .... that CAN NOT be tolerated at this location.

I don't know where you have played miniature golf in this area with music playing at "a billion decibels" but I have not heard it at Coral Cay on US 41 or when Marco Island had a miniature golf course years ago. Personally I hope they move ahead with it. We need more things to do on this Island. It is located in a business area. It was approved by City Council.

2themoon writes:

I thought MICA disbanded after they helped the syndicate get the STRP pushed through.

JohninMarco writes:

Just my take, this could be a real battle. Drove by today and twice as many workers are there than last week.

gladesgator writes:

It seems to me that Attorney Kramer is showing utmost disrespect for the rule of law and procedure. He has been well aware of MICA's stand and even represented MICA on the issue.

If he respected the rule of law he could have filed for a Declaratory Action to have a court rule on the issue before he started construction. He well know there would be a lawsuit but made himself bigger than the law and MICA and its members. I would hope people that respect the law would chose lawyers who also respect and honor the law.

Pursuit writes:

As far as i am concerned MICA has done nothing but good thing's for the island They have tried their best to preserve the quality of life & well being for the resident's This is a residential community by large Let's keep it that way

marcosandflea writes:

Here is a suggestion for those being sued by MICA ... MICA has an illegal access to the beach. Decades old decision by Florida Supreme Court ruled that restricting access to any beach is illegal. By forcing tax-paying citizens of the community to pay to access the beach under the ruse that it is to park is illegal. So those being sued by MICA ought to force them off that illegal sham they have been perpetrating for decades thanks to their incestuous relationship with the syndicate (dare we now say criminal syndicate since they were fined by the EPA for violating the Clear Air Act?) And how about how MICA was silent when the good old boys were pumpming millions of gallons of toxic acid into the Gulf of Mexico because they supported the syndicate fraud sewer project? Or how MICA can NOT read a deed and therefore remained silent when those high school idiots wanted to build the school on the tract where the eagle is? We pray that MICA goes to court and all of these legal abuses get exposed by whomever they are suing.

gladesgator writes:

in response to marcosandflea:

Here is a suggestion for those being sued by MICA ... MICA has an illegal access to the beach. Decades old decision by Florida Supreme Court ruled that restricting access to any beach is illegal. By forcing tax-paying citizens of the community to pay to access the beach under the ruse that it is to park is illegal. So those being sued by MICA ought to force them off that illegal sham they have been perpetrating for decades thanks to their incestuous relationship with the syndicate (dare we now say criminal syndicate since they were fined by the EPA for violating the Clear Air Act?) And how about how MICA was silent when the good old boys were pumpming millions of gallons of toxic acid into the Gulf of Mexico because they supported the syndicate fraud sewer project? Or how MICA can NOT read a deed and therefore remained silent when those high school idiots wanted to build the school on the tract where the eagle is? We pray that MICA goes to court and all of these legal abuses get exposed by whomever they are suing.

Your rant is a bunch of nonsense! It is so nice to have access to the beach and the beautiful parks for a minimal fee.

OldMarcoMan writes:

Blah, blah, blah.
Everyone who's built a House, Condo or Business on Marco had to get approval from MICA. This isn't anything new.
Getting a building permit is part of living in this city as much as getting MICA project approval.
If you didn't want twin, triple, or quadruple layers of government why did we become a City ?
If you don't want MICA, The City, The County and the State for that matter telling you what to do this isnt the place to be. How do you think the power brokers on Marco got to be the Power Brokers. More favers are owed on this Island than the number of cost overruns on the STRP,

happyhorowitz34145 writes:

From 2003 thru 2007 MICA made a fortune with their so called review committee at $225.00 a pop for new homes , which were just rubber stamped through the committee.
Unlike others that have stated, MICA has not improved the "quality of life" here on this island.
MICA enforces none of its so called deed restrictions.
There are more homes built on this island with City side setback requirements versus MICA side setback requirements. The MICA reveiw board never follows up on any final construction to see if the actual structure meets their Deed Restrictions.

WizeOlMarco writes:

"Here is a suggestion for those being sued by MICA ... MICA has an illegal access to the beach. Decades old decision by Florida Supreme Court ruled that restricting access to any beach is illegal."

'Hey, all condo-owners, move your fences and buildings so I can get to the beach.'

26yearsonmarco writes:

Has anyone ever encountered the GESTAPO at the gate to the Residents Beach???

If you happen to be walking on the beach and try to get to Collier Blvd. by going through the gate, or trying to show the beach to a prospective Buyer, you will be harassed.

lauralbi1 writes:

This issue is not whether or not a Miniature Golf Course will be built on this land. It is about having to get MICA approval on the operational and architectural elements of the business, as provided for in the Deed Restrictions.
It seems that this has come about due to a personal vendetta on the part of Mr. Kramer and nothing else. I hope they have to tear it down and start again.

And for those of you that did not know, the horse drawn carraige concept was also a Deed Restricted endeavour. It never had a chance. MICA is just enforcing the desires of the Developer. That is a good thing.

As I understand it, most Deeds on Marco contain a Restriction pertaining to the keeping of "Farm Animals" on the property. Suffice it to say that a horse is a Farm Animal. I guess Deltona did not want Marco to be farmland. Good idea !!!!
Ed Issler

2themoon writes:

in response to 26yearsonmarco:

Has anyone ever encountered the GESTAPO at the gate to the Residents Beach???

If you happen to be walking on the beach and try to get to Collier Blvd. by going through the gate, or trying to show the beach to a prospective Buyer, you will be harassed.

Sooo funny! I live across the street at the sands and i see that clown all the time barking at people who try to invade the beaches of MICA. One 4 th of July he tried to stop a group of about 30 of us from getting by the gate. He gave up after about 200 people went by on the other side of his guard shack while he was patrolling us...lol

captnjimbo writes:

Give me a break. I did not want this but wait until it is almost done before filing??!

silverpalm26 writes:

in response to lauralbi1:

This issue is not whether or not a Miniature Golf Course will be built on this land. It is about having to get MICA approval on the operational and architectural elements of the business, as provided for in the Deed Restrictions.
It seems that this has come about due to a personal vendetta on the part of Mr. Kramer and nothing else. I hope they have to tear it down and start again.

And for those of you that did not know, the horse drawn carraige concept was also a Deed Restricted endeavour. It never had a chance. MICA is just enforcing the desires of the Developer. That is a good thing.

As I understand it, most Deeds on Marco contain a Restriction pertaining to the keeping of "Farm Animals" on the property. Suffice it to say that a horse is a Farm Animal. I guess Deltona did not want Marco to be farmland. Good idea !!!!
Ed Issler

Whether this be a personal vendetta or not there is no difference in the two theories that you speak of Issler. First of all there were months of publicity about this property being developed and even publications in the paper AFTER CITY COUNCIL APPROVED IT. If your new city council is willing to stick new and up coming companies out to dry with their less than knowledgeable information about their own so called city than MICA should not have the ability to stop this production.
On a second note the horse and carriage company was never even allowed on the streets, however had to spend thousands of dollars just for council and city officials to be able to "see the product" that they were wanting to put on the streets. Your theory of horses living on this island is far from the truth that you speak as did every other old hag on this island. They had a fully enclosed trailer to transport the horses off the island every day/night. Not have them living here!
Property values will only go up the more that this island has to offer and less non-tourist residents live here. Only the dying generation will ever be able to keep this island the same, however life has a toll and the majority of people on this island are close to it. Who do you think will run this island once they are gone?? Will Deltona still rule or will we be able to over come an idea that has long outlived its presence?

marcosandflea writes:

So GLADESGATOR does not mind paying a little fee to keep the beach clean. The very same dingdongs that complain when their rights are ignored and complain about politicians. So GLADESGATOR like the rest of the Issler-types just go along and find it OK to commit environmental crimes as long as its their buddies the ones doing it and its OK to illegally charge for beach access as long as its their buddies doing the charging.

gladesgator writes:

in response to marcosandflea:

So GLADESGATOR does not mind paying a little fee to keep the beach clean. The very same dingdongs that complain when their rights are ignored and complain about politicians. So GLADESGATOR like the rest of the Issler-types just go along and find it OK to commit environmental crimes as long as its their buddies the ones doing it and its OK to illegally charge for beach access as long as its their buddies doing the charging.

Crimes? What crimes, pray tell? Can you imagine what your homeowners dues would be if you had to pay for a beach club like Resident's beach. Marco residents don't need gated communities and don't need amenities that cost gated subdivision owners hundreds of dollars a month. Be thankful if you live on Marco Island and start respecting the law. Kramer should be ashamed!

ajm3s writes:

in response to silverpalm26:

Whether this be a personal vendetta or not there is no difference in the two theories that you speak of Issler. First of all there were months of publicity about this property being developed and even publications in the paper AFTER CITY COUNCIL APPROVED IT. If your new city council is willing to stick new and up coming companies out to dry with their less than knowledgeable information about their own so called city than MICA should not have the ability to stop this production.
On a second note the horse and carriage company was never even allowed on the streets, however had to spend thousands of dollars just for council and city officials to be able to "see the product" that they were wanting to put on the streets. Your theory of horses living on this island is far from the truth that you speak as did every other old hag on this island. They had a fully enclosed trailer to transport the horses off the island every day/night. Not have them living here!
Property values will only go up the more that this island has to offer and less non-tourist residents live here. Only the dying generation will ever be able to keep this island the same, however life has a toll and the majority of people on this island are close to it. Who do you think will run this island once they are gone?? Will Deltona still rule or will we be able to over come an idea that has long outlived its presence?

"Property values will only go up the more that this island has to offer and less non-tourist residents live here. Only the dying generation will ever be able to keep this island the same, however life has a toll and the majority of people on this island are close to it."

Wow! The dying generation? Well, I will disagree with your thesis "Property values will only go up the more that this island has to offer and less non-tourist residents live here."

If you allow that as your guide, then I can surmise you would place a check mark in the YES column for the establishment of a casino and/or convention center on this island and displace private homes to support such enterprise.

Property values are influenced by a host of conditions and to simply make a claim that limiting non-tourist (ie. part-time and full time residents) would lead to increase valuations is quite a position and oversimplification. I would argue such an approach would actually contribute to creating an atmosphere of commercialization that quite frankly, would change the character of the island, and diminish the unique qualities that attract tourist. And those tourists that eventually come to reside here, as they drive around the island on a leisurely tour falling in love with the homes and condos.

Good land planning and zoning administration are key, as well as protecting those features that contribute to making Marco Island unique, which includes a wholesome residential community. I suggest you look at communities with high property valuations, and you will find exclusiveness NOT commercialization at the expense and displacement of non-tourist residents.

The secret of Marco Island is creating the right balance, and that is quite a challenge in a world with changing demographics, but to simply displace non-tourist residents is quite an approach and from my perspective, an extreme position.

I will put a check mark in the NO column for displacement of the dying generation. In fact, I will support the dying generation as well as the non-tourist resident because for the most part, they contribute to the ambiance that attracts tourist to consider living here as residents. Is that wisdom or a dying idea?

mahiman writes:

Kramer thinks he can do whatever he wants. MICA has the interest of those who live here in mind. No one cared about the people who live around or near the miniature golf course. The course wants to stay open late, have bright lights, and play music. It might not be loud music, but at nightime, it travels very easily! Thank you MICA!

gladesgator writes:

in response to GorchFock:

(This comment was removed by the site staff.)

Google deed restrictions and get an education Klaus. And, FYI the USA is a Rubublic not a Democracy.

gladesgator writes:

in response to GorchFock:

(This comment was removed by the site staff.)

Klaus,

Please clarify your question. I did not understand what you are asking. I will say that deed restrictions are covenants that a land purchaser agrees to upon purchasing the property and it is restrictive ownership like an easement. The legal issues raised by Atty. Kramer are complex. However, he well knew of MICA’s position and should have filed to have the law clarified via a declaratory action before undertaking the building project without MICA approval.

gladesgator writes:

in response to GorchFock:

(This comment was removed by the site staff.)

If you buy a house and take title and the deed references an easement, neither city hall, the Governor or the President of the United States can take it away. Why, you did not buy the ability to use your property in a totally unrestricted manner but you bought it subject to the easement. Every property that requires MICA to review new plans had a deed restriction in favor of MICA when they bought the property. It's the same as if you bought in a deed restricted subdivision with a homeowner's association. The only difference is that being under MICA we get much more than our money's worth. See my prior posts in that regard. I can’t tell you what Kramer is doing with that silly put-put golf course.

gladesgator writes:

in response to GorchFock:

(This comment was removed by the site staff.)

In a sense, yes.

gladesgator writes:

The purpose of deed restrictions is to maintain a neighborhood and provide amenities that all can enjoy. People off island are paying thousands of dollars to join beach clubs that provide less amenities that MICA provides with Residents Beach for about 100 dollars a year. So MICA works for the benefit of all its members.

MrBreeze writes:

I do believe that the "dying generation" is still live and kicking. I would consider myself one with the same thoughts as peace,quiet and less development. More residents or part time residents still one and the same "homeowners" as I am still not old, not retired, not senile.

I find it important that Deltona's deed restrictions be kept alive as it spells out the island and the lifestyle. As I have said many times Deltona was far ahead of their time. I will agree some "minor" changes may apply today but really minature golf. I find the concept something you would find in a "tourist trap" town. I find that is not Marco Island quality. I think MICA wants to be shure it is as correct as possible keeping in tune with Deltona.

I agree that Residents Beech is good for the resident. For 100 dollars to have quality access and parking to the beech is a great deal. I think that should never go away period. I like that probally the best feature as I bought here for the beech.

Guys like me and ajm3s still believe in this island and I believe many more are in majority as we truly love this place and want to protect it's quality.

RayNetherwood writes:

To answer the blaring music question I can cite two places easily, Daytona Beach and Destin. And, the comment of noise traveling at night also has merit. Just because YOU have no experience with something doesn't mean it doesn't exist.

We don't want Marco to be a Daytona Beach, BUT some controlled growth is a good thing. For all of the tourists staying at the Hilton, Marriott, the timeshare places, and for residents (and their visiting family and friends) wouldn't it be nice to have lunch or dinner at Sasso's or across the street, and then walk a 100 yards and play a round of minature golf??

Horse poop, NO. Loud blaring noise, NO. But, quality of life improvements ... YES, if they make sense. Kramer and MICA need to get together and approve this project instead of acting like idiots, and I can also see where Kramer should be sanctioned (read that pay some bucks) for having tried to do an end run on MICA.

JohninMarco writes:

in response to GorchFock:

(This comment was removed by the site staff.)

Good point, and many of us have said it for years!

gladesgator writes:

in response to RayNetherwood:

To answer the blaring music question I can cite two places easily, Daytona Beach and Destin. And, the comment of noise traveling at night also has merit. Just because YOU have no experience with something doesn't mean it doesn't exist.

We don't want Marco to be a Daytona Beach, BUT some controlled growth is a good thing. For all of the tourists staying at the Hilton, Marriott, the timeshare places, and for residents (and their visiting family and friends) wouldn't it be nice to have lunch or dinner at Sasso's or across the street, and then walk a 100 yards and play a round of minature golf??

Horse poop, NO. Loud blaring noise, NO. But, quality of life improvements ... YES, if they make sense. Kramer and MICA need to get together and approve this project instead of acting like idiots, and I can also see where Kramer should be sanctioned (read that pay some bucks) for having tried to do an end run on MICA.

Kramer's wife owns Sasos so its their call but it does not seem that the type of people dining at Sasso's would have a lot of interest in Put Put. Perhaps going to the theater afer dinner would be more like it.

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