Office of the Sarasota County Attorney to seek an injunction to get the property restored, with potential for foreclosure, as well
On a unanimous vote, the Sarasota County Commission this week authorized County Attorney Stephen DeMarsh to pursue legal action against a Manasota Key Road property owner who “destroyed a wetland on his vacant barrier island property” in February 2014, as DeMarsh put it in a memo.
The May 24 motion officially allows the Office of the County Attorney to seek injunctive relief and, if appropriate, foreclosure, against Paul Maurer, who owns the land at 8215 Manasota Key Road.
As the May 17 memo from DeMarsh to the commissioners explains, county Environmental Protection Division staff identified the wetlands Maurer destroyed as mangrove swamp, “an endangered habitat protected by the Sarasota County Comprehensive Plan.”
On Feb. 22, 2014, then-Commissioner Christine Robinson received an email from David Green, president of the Manasota Key Association, telling her that that morning, “a team of landscapers, construction trucks, sand trucks and bulldozer came to the [Maurer] property and started to cut down all the vegetation,” including mangroves, and then began to fill in “the wetland or small creek that runs through the property.”
Green added, “My understanding is that the county had previously denied the landowner [a permit] to do the above.”
Robinson was able to reach county staff members, who were arrived on the scene in time to stop further damage to the wetland. She also visited the property, later telling her colleagues on the board, “You can’t even begin to grasp [the damage] until you’re on-site looking at it.”
In April 2014 and August 2014, DeMarsh’s memo says, the county “successfully obtained a compliance order and penalty order against Maurer for the [county] code violations,” but Maurer appealed.
In March 2015, the memo continues, the 12th Judicial Circuit Court found that state law took precedent over county regulations regarding mangroves. Therefore, the court ruled, the county lacked jurisdiction to enforce any county regulation related to the removal, destruction or defoliation of mangroves. However, the court said the county “did have jurisdiction to enforce its regulations regarding filling and other earthmoving activities in the wetlands and the uplands,” the memo points out.
“Therefore, the Court concluded that Maurer would have to comply with all portions of the restoration plan ordered by the Code Enforcement Special Magistrate, except those ‘uniquely applicable to mangroves (the plan provides for the planting and maintenance of specified native species of plants other than mangroves),’” the memo continues. That meant Maurer would have to remove the unauthorized fill on the property.
In October 2016, the memo notes, the county adopted a Mangrove Trimming and Preservation Code and obtained permitting delegation from the Florida Department of Environmental Protection (FDEP). Under an agreement between the county and FDEP, the latter still held the responsibility of prosecution of any pending actions, including the Maurer case, the memo explains.
In January, FDEP issued an amended consent order to Maurer, calling for him to correct the state violation.
How best to proceed
Debate ensued on May 23, however, when DeMarsh asked for direction from the board on how to proceed. Maurer already owes approximately $250,000 in Code Enforcement fines and interest, DeMarsh said. In 2016, the Sarasota County Property Appraiser’s Office assessed the value of the property on Manasota Key Road at $94,000, the memo points out. Thus, “the maximum fine we could ever collect would be about $94,000,” DeMarsh told the board.
Maurer has submitted some materials to county staff in an effort to apply for after-the-fact permits for the activity on the site in February 2014 and for some additional permits, DeMarsh noted, “but those have not been finalized and granted.”
DeMarsh’s memo said, “Maurer has consistently failed to provide sufficient information for staff to reach a final determination on the after-the-fact earthmoving permit application.”
“No action has been taken to bring the property into compliance,” DeMarsh pointed out on May 23.
DeMarsh added, “Foreclosure … may not be the best kind of remedy to get this thing back into compliance.” If the county took title to the property, he said, the county would be liable for correcting the violation, which would cost about $5,000, according to the memo.
Commissioner Charles Hines then raised a section of the memo regarding a first mortgage on the property.
The memo said that a mortgage held by Vincenzo Iafano, dated Jan. 15, 2014 and recorded on June 29, 2015, is for $165,000. However, a scrivener’s error — the misspelling of Maurer’s last name — in the original penalty order from August 2014 leaves open the question of whether Iafano received notice of the county’s Code Enforcement lien, the memo adds.
Commissioner Nancy Detert also voiced reservations about a potential foreclosure. “That’s a serious thing, for government to foreclose on someone’s personal property. However,” she continued, “this thing has gone on more than three years.”
“It would only take [Maurer] around $5,000 to do what we have asked [him] to do,” Detert pointed out, “which is to replace the vegetation and make the shoreline look the way it used to look.”
The fill Maurer added to the site also would have to be removed, DeMarsh noted.
Detert added that she found it difficult to understand why Maurer had not undertaken the restoration of the property. “Apparently, [he] thinks [he has] a leg to stand on.”
Maurer and his family have tried to get county permits to keep the fill on the property, DeMarsh said, and they also have attempted to get a building permit.
Detert then suggested the county just sue for injunctive relief. “They think they’re right, and we think we’re right. We might as well find out who’s right.”
However, Commissioner Michael Moran told his colleagues he wanted to give DeMarsh as much flexibility as possible. Moran then made a motion for DeMarsh to pursue injunctive relief and/or foreclosure. Commissioner Alan Maio seconded it.
When Detert asked whether the direction should include the option of foreclosure, DeMarsh explained that if the county pursued injunctive relief but not foreclosure, “you probably run the risk of not being able to bring the [foreclosure] claim later. … That would be considered splitting cause of action,” he added, if the county later filed for foreclosure.
“What if we win on foreclosure and now we own [the property], but we also own the debt?” Detert asked.
“The county would allege that its lien took priority over the mortgage,” DeMarsh replied. If the court agreed, he added, “we might proceed with foreclosure.” If the court disagreed, he pointed out, it would not make sense to file for foreclosure.
Hines told DeMarsh he wanted more information about the first mortgage and the individual who owns it.
Moran concurred with Hines.
Moran then tabled his motion and the commissioners agreed to give DeMarsh until the following day, when they had another meeting scheduled, to provide them more details.
On May 24, DeMarsh reported that he had conferred with Assistant County Attorney David Pearce. “There is a security agreement which purports to be a mortgage on the property, but it raises sufficient questions that I cannot tell you that it is in fact a valid lien on the property,” DeMarsh explained.
Therefore, he suggested the Office of the County Attorney “be given the latitude” to pursue the injunctive relief and, if appropriate, foreclosure. “Our emphasis would be on the injunction.”
DeMarsh added, “I think there’s enough doubt here for us to do some discovery as to the validity of the mortgage.”
Hines then made the motion to direct DeMarsh and his staff to proceed with the injunction and foreclosure, “to bring the property into compliance.”
Detert seconded it.