Guest commentary: Marco Golf and Garden responds to MICA

It is truly humbling to have members of our community volunteer to petition MICA to reconsider its demands and then for the over 1,600 individuals who have already signed the petition.

No one knows the future and MICA may well prevail and demolish the building, level the land, and destroy the garden. Again, MICA maintains that this is all necessary for the integrity of the island.

Because many of you have raised several common questions and because the current MICA board presented its guest commentary in last Friday’s edition of the Marco Eagle, I would like to comment, first with general background and then with points specific to Marco Golf and Garden.

In developing its Marco Beach Subdivision, The Deltona Corporation recorded approximately 115 declarations of restrictions (commonly referred to as deed restrictions). These various restrictions were recorded between the years of 1965 and 1984. The restrictions commonly had two presently relevant controls. First, they allowed for architectural review of buildings. Second, they provided for authorized usages of the properties. Many have long thought these restrictions to be antiquated. By example, the single family residential restrictions limit garages to only one or two car garages. As to the commercial restrictions, they expressly allow businesses such as millinery and furrier stores, radio stores, telephone exchanges, telegraph stations, haberdasheries, and “grocery stores without live poultry.” Additionally, over the many years, particularly with the commercial properties, the restrictions have been selectively applied and enforced.

Before Deltona recorded its first declaration of restrictions, Florida had already enacted its Marketable Record Title Act (MRTA). In very general terms, MRTA provides that deed restrictions become “null and void” after 30 years. All of the Deltona deed restrictions have now clearly been of record for more than 30 years. MRTA does, however, contain a specific provision allowing for the recording of notices which extend the 30 year period. With this, in 1995, MICA started recording notices of continuation.

An article in the May 2005 Florida Bar Journal addressed MRTA and the recording of these notices. It clearly stated that the mere right to enforce deed restrictions gave no legal right to record any notice of continuation. Simply, MICA’s attempted notices of continuation could not legally extend the restrictions beyond the initial 30 years. Having long ago had the privilege to serve on the MICA board, I privately notified MICA that we (MICA) had been wrong. MICA essentially chose to ignore this information.

Turning specifically to Marco Golf and Gardens, one frequently asked question is the timing of MICA’s objections to the project. MICA was fully aware of the conditional use application being filed with the city in November of 2011, the January 2012 hearing before the City Planning Board, the February 2012 hearing before the City Council, and the city’s final approval of the project. MICA never voiced any concern, much less any objection, to the project. Ultimately, whether MICA first spoke after the building permit application had been filed or it further waited until construction had actually commenced, it clearly said nothing over the course of the year when plans were being developed and contracts were being entered.

To address another question, the issue is not one of presenting building plans to MICA’s Architectural Review Committee (ARC). Rather, MICA’s position is that the restrictions do not expressly allow either for a miniature golf course or for a garden. Therefore, everything must come down, including the building. As to the building itself, it is clearly architecturally compatible with the other buildings in the neighborhood and MICA has not suggested that it violates any architectural standards. As an aside, I have yet to read any Deltona restrictions that require property owners to pay any money for architectural review. Yet for many years now, MICA has charged its “MICA ARC Tax” on each new home, and MICA clearly intends to continue charging this “tax” in the future.

In any event, the 1974 deed restrictions recorded on the miniature golf course site governed 15 commercial properties. To our best information, prior to November of 2011, neither Deltona nor MICA was ever involved in any architectural review of any of the eight buildings constructed on these commercial properties. Of note, we have requested that MICA produce its records to show this wrong, but it refuses to do so.

In accord with other Deltona restrictions, the restrictions governing these 15 commercial properties allow the property owners the right to cancel the restrictions. So even if MICA had the right to record the notices and even if there had not been selective enforcement, the majority of the 15 properties has voted to cancel the restrictions. The MICA board fully knows this, but maintaining that the vote is not effective until January of 2014, it continues to demand the immediate destruction of all of the improvements on the property.

Many residents rightfully question how our island is best served in the 21st century by MICA applying Deltona’s 50 year old restrictions to control our elected city government and all future planning of our island community. The original Deltona master plan was an excellent work for its time, and it is an invaluable starting point, but it should not be the brickwall end point of our community’s development.

Returning to Marco Golf and Garden, again the future is uncertain, but hopefully MICA’s myopic current commitment to the deed restrictions will not prevent generations of families from enjoying miniature golf under the canopy of a maturing botanical garden.

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Comments » 31

lauralbi1 writes:

Dear Mr. Kramer: The Deltona Deed Restrictions become "null and void" is a certain attempt at deception on your part. The actual statement is null and void unless changed by the then owners. If not, they are extended automatically for 10 years or by MICA for an additional 30 years, on behalf of Deltona. That is the case with your property. You know very well that MICA has a Fiduciary Obligation to Deltona to extend and enforce all the Deed Restrictions. You are only trying to fool yourself to say anything else.
If not for Deed Restrictions the Island could have had MIA at the Church across from Veteran's Park. If not for Deed Restrictions, the Island could have had horses on property adjacent to operating commercial businesses. There may be 1600 people that signed a petition, and it is certainly understandable that you would be appreciative. But there are 10 times more that support MICA and the Deed Restrictions that they enforce.
Hopefully, in retrospect, you realize that you have only yourself to blame for this entire situation. Why you did not work with MICA during the process is beyond me. I certainly hope that your effort can somehow be saved through meetings, fines and changes. But if not, I wish you the best of luck.
Ed Issler

WMissow writes:

Bottom line Fred, the Court will decide your matter, win or lose. If MICA is ignored the rest of us lose!

I just hope what is really best for Marco Island is the end result to this whole mess.

ProfZed writes:

I've been reading all these articles, letters, responses and comments regarding the mini-golf garden and MICA. I'm coming around to understanding the importance of MICA.

I'm up here in Illinois, a Marco Island resident-gonna-be. So I realize that I don't have a say right now as to who is correct and who is wrong. I certainly understand the need (and want) of a nice, attractive family orientated facility like the mini golf course. But I also understand the need for the existence of an organization like MICA and for rules to be followed. I hope a legal compromise can be made in this case.

I've now read on another site that the Marriot Corporation wants to build a one-story parking garage on it's present parking lot located on the east side of Collier Blvd. They are seeking amendments in laws from the city council to do so. To me, this is exactly the reason why MICA needs to exist. If the city council were to approve the change in law and approve the parking garage against the wishes of a majority of residents, wouldn't MICA prevent the building of such a potential "eyesore" to the neighborhood? (And yes, I am aware that parking garages can sometimes be built with an "attractive aesthetic".)

I can't help but think how awful a parking garage, even kept to one-story, would be in that location for the neighboring residents. There is also going to be a proposal (August 2nd) for a connecting walk-way bridge over Collier Blvd. I can only imagine how much of a drastic change all of this will be to that area.

The need for the new parking garage is due to an expansion of the Marriot itself, adding a new, larger convention hall, located along the west side of Collier Blvd.

Again, I'm not a Marco Island resident yet. I just have to worry that once a one-story parking garage is built, and conventions grow larger, that the garage could be expanded. It's my understanding that it is very easy to add levels to a parking garage.

Would those presently opposing MICA continue to do so if MICA prevented the building of the Marriot Parking Garage? Or would they consider that to just be a continuation of MICA's unwanted intrusion to a modern Marco Island?

(Hoping to advance a conversation. Nothing more intended.)

czar227 writes:

Property owner for many years, but only spend about 6-7 months per year on Marco Island. Marco Island is an island and should remain "a tropical island". as close to being in Hawaii but without the long flight. Island was just another island when we first started going to it....now it's just a place for the tourist to visit and the hotels to make money and change our island look. We do have enough restaurants (lacking one of the best..Konrad's), shopping centers,boutiques,grocery stores, pubs, etc. to keep us Marco Islanders happy. The beach is one of the best in the States, but an Marco Islander hesitates to utilize it especially on weekends, in the "snow bird season". If MICA does not watch out for Marco Island, who will?

WMissow writes:

in response to Hascle:

(This comment was removed by the site staff.)

Could you please expand upon your statement?

Konfuzius writes:

" There may be 1600 people that signed a petition, and it is certainly understandable that you would be appreciative. But there are 10 times more that support MICA and the Deed Restrictions that they enforce."

Wrong Eddi! The silent majority is against MICA.
The silent majority accept just free elected government people. Now since we have first class city councilor - not the longer arm of your friends from the syndicate - Marco Island needs nor more appointed "we-know-what-is-good-for-you-people".
The silent majority loves the little putt putt facility.
And the answer to this statement is very simple:
" If MICA does not watch out for Marco Island, who will?"
City Council!

Konfuzius writes:

" Yet for many years now, MICA has charged its “MICA ARC Tax” on each new home, and MICA clearly intends to continue charging this “tax” in the future."

Bottom line - it is a money problem!

marcobeachlover writes:

As I've said on here in response to a number of other letters, Mr. Kramer, I do believe your miniature golf course is beautiful and enhances the community. I'm not sure why you needed to turn this into some kind of test case. You obviosuly know more about MICA and what it would approve than I do. Why didn't you just fill out the MICA application form (and, yes, pay the fee. How much could it have been?), as I did when I built my house on the Island?

captnjimbo writes:

Trouble is that you are extremely knowledgeable and should know better. Suggest you make a deal for provisional approval. I suggested that you put into escrow enough money to fund a teardown in exchange for a three year permit so that both you and Mica can see how it goes. That saves face for both of you, puts them back in control and allows you to recover some or all of your investment. After all you still own the property and there is a good chance it will have a lot more value 3 years from now than it has now. Not looking for an argument...looking for a compromise to an awkward situation.

You have a great reputation and do a lot of good in the community, neither you or MICA needs this controversy, for damage control use your skills to keep this out of court and out of the paper.

My two cents.

Konfuzius writes:

If they found a compromise the deed restrictions are dead. Totally dead. And that is good so. Not necessary anymore. Like MICA.

WMissow writes:

in response to marcobeachlover:

As I've said on here in response to a number of other letters, Mr. Kramer, I do believe your miniature golf course is beautiful and enhances the community. I'm not sure why you needed to turn this into some kind of test case. You obviosuly know more about MICA and what it would approve than I do. Why didn't you just fill out the MICA application form (and, yes, pay the fee. How much could it have been?), as I did when I built my house on the Island?

If it were as simple as that it would have been done months ago. This is nothing more than a challenge to see how far it can be taken. Nobody spends over $100,000++ taking a chance on the outcome. Who knows what the results one way or another may bring to us and it may not be just a pretty little putt, putt course. We all have to be careful for what we wish for, not just looking at this at its face value.

Konfuzius writes:

in response to WMissow:

If it were as simple as that it would have been done months ago. This is nothing more than a challenge to see how far it can be taken. Nobody spends over $100,000++ taking a chance on the outcome. Who knows what the results one way or another may bring to us and it may not be just a pretty little putt, putt course. We all have to be careful for what we wish for, not just looking at this at its face value.

Think big! Marco Island did not need this kind of small thinking opinion packed with yesterday ideas. Marco Island deserved fore a better future the realization of the political will of the people. Nothing else. For a better future we fight. We will see what happened with the new Marriott building blocking the view of hundreds of valuable home owners. I bet you. MICA will be fully agree with this monster building.

MrBreeze writes:

This is the big test case. MICA is not perfect I agree. However they are currently what we have left from Deltona, and I feel if the Putt-Putt is built against the Deed Restrictions tear it down.

A very smart Judge once told me "Cases are won or lost by the documents on which they are argued on" So if the the Deed Restrictions state no approval, the courts will say tear it down.

This again is a test case for a much larger agenda than putt-putt.

MrBreeze writes:

Profzed, First of all you not need to say that you have no say. If you own on Marco Island you have say. It does not matter if you currently live there or not. I do not and I believe I have every right as the next person.

I believe your comments are correct on the Mariott as if they do not meet the Deed Restrictions then they should be denied as I do not care how much money or influence they carry fair is fair.

Furthermore, why do we need to let this place become the tourist trap some want it to become. Keep it up prof, your comments are welcome. You have the right to them.

MrBreeze writes:

Czar227 Agree, totally.

happy6 writes:

watch city council give the Marriott what they want even though the a deal was put in place long ago to prevent this from happening..council will crater as usual to the Marriott....remember the height restrictions?? and the waiver??

WMissow writes:

Let's see how well the new city councilors, stand their ground for property owners when push comes to shove.

Shenandoah2 writes:

The value of MICA is sound in theory and the examples of successful past rejections stated in the comments above make this evident. But like any board, its value is only as good as its members. Those who have had to live with their Condo HOA board can relate to this. Personally I think that giving too much power to a small group of presumably wise people is dangerous. I would rather see wider representation of Marco residents in community decisions via open meetings with resident voting influence and/or referendums managed through registered e-mails or tax payer ID's.

Having said that I don't believe that MICA should limit it's judgement on this matter to architectural concerns. You could have the nicest miniature golf course in terms of low impact visuals, but still be undesirable in terms of your benefit to the island community. I personally believe this to be the case for the golf property. It is nothing less than a cheap unethical tourist trap in my opinion. Charging $12 per golf round is disgusting, but apparently the parents of visiting families are willing to pay it giving into the pressure of kids who want to play golf and having no other reasonable choice. It's the kind of business that makes me sick. It's a monopoly abused to its full potential. You don't see other unique Marco business's like the Bicycle shop for example taking unethical advantage of it's monopoly. There are much nicer miniature golf facilities in SW Florida that charge no greater than $8 per round and some are less.
Occasionally driving past the golf coarse when it was operational makes me believe that it won't survive anyway due to lack of volume at those prices. I've had conversations with other locals with kids that would not even consider paying $40+ for 30 minutes of family entertainment. It's too much. The end result is a whole bunch of disappointed kids. So how is this business serving the community? I am a resident and I see no benefit except to the business owner.
I suppose that a business owner has the right ti rip-off the tourists if they are willing to pay, but if that is the attitude, then why not have a discounted price for residents.
When I first heard of the two new miniature golf courses pending construction I was excited. I was looking forward to taking my visiting grand children and even an occasional round with just my local friends. But there is no way I can patronize such nonsense at $12 per round.
In hind sight, I now wish that the other miniature golf course would have gone forward to help dictate the market price through healthy competition. Obviously I can't rely on ethics to make it fair. As-is, I hope you fail.

Konfuzius writes:

" It is nothing less than a cheap unethical tourist trap in my opinion."

Konfuzius says:

The really in peace can live it, if you don't like the nasty neighbors.

Unfortunately we have to many on Marco Island.

Konfuzius writes:

in response to Shenandoah2:

The value of MICA is sound in theory and the examples of successful past rejections stated in the comments above make this evident. But like any board, its value is only as good as its members. Those who have had to live with their Condo HOA board can relate to this. Personally I think that giving too much power to a small group of presumably wise people is dangerous. I would rather see wider representation of Marco residents in community decisions via open meetings with resident voting influence and/or referendums managed through registered e-mails or tax payer ID's.

Having said that I don't believe that MICA should limit it's judgement on this matter to architectural concerns. You could have the nicest miniature golf course in terms of low impact visuals, but still be undesirable in terms of your benefit to the island community. I personally believe this to be the case for the golf property. It is nothing less than a cheap unethical tourist trap in my opinion. Charging $12 per golf round is disgusting, but apparently the parents of visiting families are willing to pay it giving into the pressure of kids who want to play golf and having no other reasonable choice. It's the kind of business that makes me sick. It's a monopoly abused to its full potential. You don't see other unique Marco business's like the Bicycle shop for example taking unethical advantage of it's monopoly. There are much nicer miniature golf facilities in SW Florida that charge no greater than $8 per round and some are less.
Occasionally driving past the golf coarse when it was operational makes me believe that it won't survive anyway due to lack of volume at those prices. I've had conversations with other locals with kids that would not even consider paying $40+ for 30 minutes of family entertainment. It's too much. The end result is a whole bunch of disappointed kids. So how is this business serving the community? I am a resident and I see no benefit except to the business owner.
I suppose that a business owner has the right ti rip-off the tourists if they are willing to pay, but if that is the attitude, then why not have a discounted price for residents.
When I first heard of the two new miniature golf courses pending construction I was excited. I was looking forward to taking my visiting grand children and even an occasional round with just my local friends. But there is no way I can patronize such nonsense at $12 per round.
In hind sight, I now wish that the other miniature golf course would have gone forward to help dictate the market price through healthy competition. Obviously I can't rely on ethics to make it fair. As-is, I hope you fail.

Konfuzius says:

That are not the basics America is build on!

ajm3s writes:

in response to ProfZed:

I've been reading all these articles, letters, responses and comments regarding the mini-golf garden and MICA. I'm coming around to understanding the importance of MICA.

I'm up here in Illinois, a Marco Island resident-gonna-be. So I realize that I don't have a say right now as to who is correct and who is wrong. I certainly understand the need (and want) of a nice, attractive family orientated facility like the mini golf course. But I also understand the need for the existence of an organization like MICA and for rules to be followed. I hope a legal compromise can be made in this case.

I've now read on another site that the Marriot Corporation wants to build a one-story parking garage on it's present parking lot located on the east side of Collier Blvd. They are seeking amendments in laws from the city council to do so. To me, this is exactly the reason why MICA needs to exist. If the city council were to approve the change in law and approve the parking garage against the wishes of a majority of residents, wouldn't MICA prevent the building of such a potential "eyesore" to the neighborhood? (And yes, I am aware that parking garages can sometimes be built with an "attractive aesthetic".)

I can't help but think how awful a parking garage, even kept to one-story, would be in that location for the neighboring residents. There is also going to be a proposal (August 2nd) for a connecting walk-way bridge over Collier Blvd. I can only imagine how much of a drastic change all of this will be to that area.

The need for the new parking garage is due to an expansion of the Marriot itself, adding a new, larger convention hall, located along the west side of Collier Blvd.

Again, I'm not a Marco Island resident yet. I just have to worry that once a one-story parking garage is built, and conventions grow larger, that the garage could be expanded. It's my understanding that it is very easy to add levels to a parking garage.

Would those presently opposing MICA continue to do so if MICA prevented the building of the Marriot Parking Garage? Or would they consider that to just be a continuation of MICA's unwanted intrusion to a modern Marco Island?

(Hoping to advance a conversation. Nothing more intended.)

Welcome and nice comment. But the only thing in the way of Marriott expansion are the class of folks called "residents".

Unless, I am oblivious to rumblings of residents on this island, this is the only class that can challenge the city. There is serious money on the table. And if history repeats itself, the city will take an offer that is deficient to the pulse of the residents.

Just look at the Chrystal Shores Resort(a Marriott holding) and what the city got for allowing increase density and higher height restrictions..... a beach access path....

Pathetic!

If the Marriott really wants a parking garage will it be a public one......

lauralbi1 writes:

ProfZed: MICA does not decide zoning and PUD aprovals and denials. MICA deals with Deed Restrictions. There are PUD agreements that were executed in the past that affect what you have described in your LTE, if in fact, your statements are correct.
I do not know what the PUD states about parking expansion. I know the Parking use is permitted by Deed Restrictions.
I think it is everyone's interest, including the neighbors in this area, to wait and see what is actually going to be proposed.
Ed issler

johnnycakes writes:

We have owned on Marco for three years now (home, not condo) and are still confused about why we need an organization of well-meaning neighbors to take care of our interests when we have an elected city council.

We read comments in this discussion that sound like "don't expect council to look after our interests." Huh? They're elected ... presumably by a majority of us. If we don't like their decisions we should change the makeup of council. Something we can't do with MICA. The dialog that suggests elected councillors won't look out for our interests mirrors the one we hear from our Republican friends who find it utterly incomprehensible that a Democrat is sitting in the White House. They seem to feel that we need something better than democracy to protect our interests.

Well, we don't. Democracy ain't perfect but it's a whole lot better than the alternatives. Which include unelected, unknown neighbors who want to tell me what my house should look like and mandate me to pay for the privilege.

Konfuzius writes:

"Well, we don't. Democracy ain't perfect but it's a whole lot better than the alternatives. Which include unelected, unknown neighbors who want to tell me what my house should look like and mandate me to pay for the privilege."

Very well said. But we have unfortunately to many GOOD PEOPLE like to tell me what is good for me.

Konfuzius says:
You can not select your family neither your neighbor.

WizeOlMarco writes:

...unelected, unknown neighbors who want to tell me what my house should look like and mandate me to pay for the privilege....

Deed covenants and restrictions are a check-and-balance to our imperfect but better than all else Republic.

liberator100 writes:

Enough BS from people who don't live on the Island; who live here with blinders on; zealots and mush-brains.
I am with Fred in this one, all the way to the Supreme Court if necessary.
Shutting down a business on Marco Island is unacceptable at any level.
Keep up the good fight Fred... You will certainly win this one.

MrBreeze writes:

Liberator100 What year were you born on Marco Island. Did you grow up with Deltona? In a Deltona home? This crap of "living on the island" is just that "crap". Zealots and mush-brains along with blinders on all have a say if they hold two little things.

A Deed and a Tax bill. Case closed.

Konfuzius writes:

Fred is the winner now! The silent majority support him.

Konfuzius says:

If the goal is serious, the winner get it all.

RayN writes:

Like the deed restrictions, the PUD is something in black and white and available for the world to review.

http://www.cityofmarcoisland.com/modu...

And, with regard to both, MICA is empowered to do reasonable things, and the city is on the garage. MICA can so "no" and would appear unreasonable, where as the city holding the Marriott to its signed agreement would probably appear reasonable .... the former I believe adds a little something to the quality of life on the island, where the latter I believe will only detract. At some point, there just aren't enough palm trees and flowers on earth to make a bulky building and parking garage "good" or quaintly tropical.

The Marriott, like Mr Kramer should be allowed to plead its case, and "we" should be allowed some say.

Konfuzius writes:

"...and "we" should be allowed some say."

"WE" the people of Marco Island and our free elected representatives our local government!

Called CITY COUNCIL!

Nobody else! Never some appointed yesterday people have nothing else to do anymore.

Konfuzius says:

The Kramer case is a case of sour grapes!

RayN writes:

Klaus, you're back!! Thank goodness, thought we'd lost you.

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