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MARCO ISLAND — 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.
Photo by LANCE SHEARER // Buy this photo
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.
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.