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.