BY: Mitchell Kobernick
A public meeting was held on Oct 30 2018 by the Gulf Harbors Civic Association (GHCA) to provide an update on the golf course lawsuit. Art Haedike, president of the GHCA, opened the meeting by introducing the county representatives, Commissioner Katherine Starkey, Keith Wiley, head of Parks and Recreation, Nicki Spirtos, a county attorney, Frederick Reeves, attorney for the intervenors, and Barbara Wilhite, an attorney specializing in land use.
Art in his opening remarks said that a small group of people was misusing Nextdoor to oppose the purchase and spread fake news. He said no one would die from the arsenic, and no seniors would lose their homes. This lack of empathy is disheartening. Diane personally spoke to seniors in our community who were on fixed incomes and were very concerned about what the extra taxes they would be paying for the golf course purchase would do to their standard of living. They were those conversations that convinced her she had to do something, and it gave her the courage to file the lawsuit.
It was then announced that due to the current litigation, there could be no video or audio recording allowed. That is just false. The fact that there is litigation is no reason not to record the meeting. This was a private meeting held by the GHCA, so the GHCA could set its own rules, and if they did not want it recorded, that is their prerogative. But by using the litigation as an excuse, the false information was flowing before the meeting even got started. The GHCA just did not want it recorded, and as you continue to read, you can make up your own mind as to why you think that was the case.
Keith Wiley then spoke, and gave a powerpoint presentation. In describing the process used to purchase the property, he said there was an owner appraisal of $1,750,000, and a county appraisal of $600,000.
In the question and answer session following the presentations, one questioner pointed out that the $600,000 appraisal the county was relying on was based on using hypothetical conditions that 80 units could be built. Other speakers pointed out that this was not possible due to existing wetlands, only one road access to GH, and other reasons. This questioner went on to say that the last market appraisal done by that same appraiser came up with only $275,000. I would add that both appraisals assumed that there were no environmental conditions to deal with, an assumption we now know to be problematic. Keith noted that the 80 unit assumption was arrived at by consulting with county staff to determine what would be allowed to be built on the site. One of the other county representatives spoke up that the value someone pays for a property is determined by what a willing buyer and willing seller were prepared to pay. While this is a true statement, it still begs the question as to why the county was willing to pay $1,200,000, twice the appraised value, even using that hypothetical appraisal. Ms. Spirtos answered a question saying that they had to pay what the seller wanted since this was a private sale. So my thought here is; why not just pass on the purchase if it was so overvalued? They never said anything about that. What they did say was that this was what the community wanted. And that leads me to the next question that bothered me.
Another questioner asked that with all the problems of the first vote, why not just have a new vote? That makes sense if the county truly wanted to follow the wishes of the community. Ms. Spirtos answered that question by saying that they would not hold a new vote because of all the misinformation out there. Let that sink in for a second. That answer is disturbing on several levels. First, what misinformation could she be referring to? Could it be all the documents that Diane quoted from, and posted for all to see and read for themselves? What is really troubling is how low an opinion the county must have of us, its citizens. Do they believe that once we are given all the facts, and all the documents to read, that we are incapable of determining for ourselves what is true and what is false? Or are they just afraid that our conclusions will not support their narrative?
Back to the presentation, Keith Wiley explained that the ELAMP purchase would not allow for general access, it would be limited to those paying for the MSBU. He pointed out the language in the MSBU ordinance where that was specified. In the Q&A portion, Ms. Spirtos stated that it would be a private park. A question was asked if Penny For Pasco funds were being used for the purchase. Keith answered that they were. A follow up question asked how could the use be private then, and Ms. Spirtos answered that ELAMP does not have to make the land public, even when using Penny For Pasco Funds. The questioner then commented that she wondered if the rest of the county knew that.
Commissioner Starkey then spoke up to say at one time she had buyers for the land who would donate it, but then got another offer for $1.2M, and she asked the owner to hold off on it. She noted that a meeting was held in Gulf Harbors and there was a hand vote at that GHCA meeting to move forward with the county purchasing it in cooperation with Gulf Harbors.
Wiley continued that the MSBU Ordinance restricted access to those in the MSBU, and also contained a restrictive covenant. He said the purchase contract said that the buyer (the county in this case) must be satisfied with the environmental condition, or would not close. He said there were 1791 units in the MSBU, a total of 914 ballots were counted, and the result was 57% Yes and 43% No.
Nicki Spirtos then spoke. She said she worked with Parks and Rec. and ELAMP to prepare the MSBU, and did the legal review. So also said that they used 125 to pass the MSBU, and that a written ballot was not required. She went on to say the first time county staff sent out a vote was for this MSBU, and they wanted to be sure the people wanted this. She said that the first mailing made reference to Chapter 94, but after that went out the county attorney decided to use 125 instead.
This is a particularly contentious point, and figures prominently in the lawsuit. The distinction between Chapter 94 and 125 is that 125 is a Florida statute, and Chapter 94 is in the Pasco County Code of Ordinances, the law adopted by the county. In Chapter 94, in order to pass an MSBU, it requires a vote of those that would have to pay for the MSBU, and it must pass by at least 50%. The first mailing referred to by Ms. Spirtos is the letter of May 27, 2016 that contained the ballot to be returned. In that letter, in addition to referring to Chapter 94 as the law they were following, it goes even further and specifically states
“The remaining land would be purchased, maintained and improved by assessments included in the MSBU. Unlike the civic association, the MSBU would not be a voluntary program. In order for the MSBU to be created, 50% of the voting residents must vote in favor of creating the MSBU. Otherwise, the MSBU will not be created.” (emphasis added)
But now Ms. Spirtos is saying that a written ballot was not required and that they changed their minds and were not following Chapter 94 after all. She has also repeated that claim in her court filings, where she has written that the vote taken was merely a poll, and the county does not have to respect the results of the vote, and could overrule it. Specifically, in Pasco County’s Answer and Affirmative Defenses filed on March 23, 2018, she wrote:
“There is and was no legal requirement for the County to take a vote of or ballot the property owners within the Gulf Harbors/Flor-a-Mar community to approve the purchase price to acquire the golf course property and/or to approve the creation of the MSBU. Any vote or balloting taken was, at best, advisory to the County, and there exists no law requiring the County to abide by such vote or balloting or consider such a vote or balloting in any way.”
It is particularly interesting to me that she and the county made known their decision to ignore Chapter 94 only after the lawsuit was filed by Susan Levine and Diane Kobernick, in which the results of that vote were called into question. And they had ample opportunity to inform us of their change of mind. A follow-up letter was sent out on July 6, 2016, but they did not mention there that they decided not to use Chapter 94 anymore. And even at the public hearing on Sept 27, 2016, when the commissioners voted 4 to 1 to pass the MSBU, they could have informed the public at that time that they were going to ignore the vote completely, and not use Chapter 94. But they did not! Even in the face of speeches given by Susan Levine pointing out irregularities in the procedures used to pass the MSBU, and Diane Kobernick reminding them of the results of her audit of the ballots questioning the results, the commissioners still did not table the MSBU to investigate these claims, but went ahead and passed the MSBU anyway.
Ms. Spirtos continued with her presentation at the GHCA meeting, informing us that Diane Kobernick and Susan Levine filed a lawsuit to throw out the MSBU. She said the suit was originally filed pro-se, without a lawyer, but Susan Levine had to drop out of the suit when she moved out of Gulf Harbors, and then Diane hired an attorney. She said that on March 13, 2018, an amended complaint was filed with new claims, and that many of the original claims were dropped. She then listed the 6 claims in the suit, which included;
- Not greater than 50% of the ballots were in favor, and there were problems with Yes votes after the deadline, Yes votes with comments, and Yes votes from those that were not listed in the tax assessors role;
- Cost of contamination cleanup will be charged to the MSBU. Spirtos said that it would not.
- County did not follow Chapter 94. Spirtos described this ordinance as a paving assessment, and said that Chapter 94 did not control.
She went on to say that of the 10 claims made by plaintiff, 4 were dropped by Diane’s new attorney, 3 were won by the county in the summary judgment, and 3 more were pending trial. She also said that even if they threw out the 78 challenged votes, it still would have passed. She pointed to a slide that said that Diane’s spouse claimed that those that counted the ballots claimed it did not pass, and then read excerpts from Diane’s deposition. She quoted where Diane answered that she did not take notes, and that she was not successful in counting the ballots.
Ms. Spirtos made it sound like the county was winning because of the 10 original claims, only 3 remained. She made it sound like winning 3 of the claims in the summary judgment was a win. If the county had won the summary judgment, the case would be over, and there would be no trial. Instead, there are meritorious claims that need to be presented and ruled on at trial. This is like the county saying after the war is lost, but we won some of the battles.
The quotes taken from Diane’s deposition were cherry picked, but this is not a new tactic for the county. In their Motion For Summary Judgment, the county wrote:
“On August 23, 2016, Plaintiff Susan Levine delivered a letter to the Board stating, “We are not opposed to the County’s acquisition of the property as a conservation area through the county ELAP(sic) process.””
The county attorney was trying to make a point, but that point is lost when you read the next sentence in that letter:
“However, we are in opposition of the County imposing a MSBU Ordinance imposing a lifetime tax on our property to purchase the golf course property in violation of Florida Statutes,”
So if you read the complete letter, you would get a very different picture of what was actually said, compared to the carefully orchestrated out of context quote that the county was showing you.
When Ms. Spirtos was describing the lawsuit, she used the phraseology that Diane was complaining. This is the correct legal term, as the lawsuit is called a “Complaint”, and in the suit the words that are used say that the Plaintiff is “complaining” about certain issues. It may just be me, but it seemed that the tone being used was implying that by “complaining”, Diane was just being petty, rather than alleging wrongdoing by the county.
Diane and Susan did file the original lawsuit on their own, and when Susan moved away, Diane was the sole remaining active plaintiff. The county responded to the suit with extensive discovery requests. In addition, 13 individuals joined the lawsuit on the side of the county as Intervenors, including several members of the board of the GHCA. They were represented by Frederick Reeves, who stated at the meeting that he was a former partner of Hobby and Hobby. (Mr. Reeves also represents the Orsi’s family trust, who is the first lienholder on the golf course property. Hobby and Hobby represent the seller, and also have a lien on the property.) These Intervenors bombarded Diane with additional discovery requests. Even with the avalanche of requests from the county, and now the Intervenors, Diane felt strongly enough that the county was pushing this deal even in the face of community opposition, that she hired an attorney to continue the fight. In early 2018, that attorney had to withdraw from the case due to serious medical issues, and Diane had to find a new attorney. There were deadlines coming up very quickly, and the new attorney asked Ms. Spirtos, as the county attorney, for an extension so that he could get up to speed. Normally, when a new attorney enters a case, especially due to medical reasons, opposing counsel would extend the courtesy of agreeing to an extension, but that was not the case here. He had to file with the court, and spend more of his time and Diane’s money to get what should have been an automatic professional courtesy.
Back to the GHCA meeting, Ms. Spirtos then discussed the environmental issues. She said that 4 contaminants were found, and most of the soil samples were below the Residential Target Cleanup Level. She said that Phase 3 is soil sampling, and the seller was paying for it, and that most samples were below the target levels. She said a Site Assessment required by the FDEP was due 12/23/18, and the Seller was getting a no further action letter from the FDEP, all at no cost to the MSBU. She said the final report and the FDEP letter will all be on the internet.
When Gulf Harbors owners voted on this MSBU in 2016, the county had not done any environmental testing yet, and in fact there was no disclosure at all of the possibility that there might even be any environmental issue to deal with. The county already knew better, since they had just completed the purchase of the Timber Oaks golf course, without doing any environmental testing first, and only dealt with the contamination issues after the purchase.
The county’s own environmental consultant, Universal Engineering, finally issued a Phase 2 Environmental Site Assessment report on Nov. 30, 2016. For this report, they only took 4 samples, but reported that all 4 exceeded FDEP’s Target Cleanup Levels for arsenic, and 3 of the 4 exceeded FDEP’s Target Cleanup Levels for the other contaminants. It is important to note that this report was done well after the vote was taken in GH, and well after the county was planning to close on the purchase, had the lawsuit not stopped it. In the cover letter to that report they said that the contamination remediation could cost up to $4,700,000, but needed much more testing to make any real determination.
Two years later we still do not know the extent of the contamination.
The way Ms. Spirtos then described the contaminants in the meeting was that most of the samples were below the target cleanup levels set by the FDEP. She must not have been referring to the Universal report, but to a report done by SP2 Technologies on behalf of the seller. That report showed that only 1 of their 4 samples exceeded the Level for the other contaminants, but all 4 still exceeded the arsenic Level, one by more than 8 times! I am not sure how those results qualify to say that most samples were below the Target Cleanup Level. The FDEP has given the seller until Dec 23 of this year to complete the current testing protocol, so maybe then we will know the extent of the remediation cost, if any is required.
Ms. Spirtos said that remediation is a seller cost, not a buyer cost, and that if remediation is required, there would be no closing. That sounds good, but it does not square with what the official documents say. The county, as the buyer, does in fact have the option to terminate the purchase contract if it is not satisfied with the environmental condition, but that is not the whole story. The purchase agreement specifically says:
“If at any time between execution hereof and the closing, any environmental report obtained by either BUYER or SELLER discloses that there are hazardous materials, wastes or substances, toxic wastes or substances, pollutants or contaminants…on the Property, BUYER may terminate this Agreement and all rights and liabilities arising hereunder, or may close the sale in the same manner as if no Contaminants had been found. The BUYER may also terminate this Agreement if the BUYER determines in its sole discretion that the extent of any remedial action is excessive.”
So while the county has the option to terminate, it also has the option not to terminate, and to close on the property anyway. One of the issues raised by Diane was that ELAMP’s Standard Operating Procedures, dated from 2004 and posted on the county’s website, did not allow ELAMP to use public funds to purchase contaminated land, so the county had no choice but to terminate the purchase contract once Universal Engineering discovered the presence of contaminants. After that was pointed out, these Procedures were removed from the website. In a deposition of the county representative, he stated under oath that these procedures were only guidelines, and ELAMP was not required to follow them.
In the interest of full disclosure, the county did sign an Addendum to the purchase agreement on Aug 27, 2017 that states:
“Buyer and Seller agree that the Closing Date shall be no later than Thirty (30) days after the date on which (a) Buyer has prevailed in the Case, including any appeals (or the time for all appeals of the Case has been exhausted, waived, or otherwise run) or the Case is otherwise disposed of in such a manner such that the MSBU ordinance is legally effective, allowing Buyer to close on the purchase of the property and fund half the purchase price via the MSBU, and (b) Seller has provided Buyer with an NFA Letter from FDEP, stating that the Property may be used for the Approved Recreational Uses without conditions, or with conditions satisfactory to Buyer, in Buyer’s sole discretion, not requiring any remediation of the Property, and subject only to terms and conditions which prohibit the drilling and/or installing of water wells or having cured any objectionable conditions, to Buyer’s satisfaction, in Buyer’s sole discretion.”
It would appear that this says that the county will not close if the property can’t be used for the Approved Recreational Uses without requiring remediation. My only concern is what exactly are these Approved Recreational Uses? The addendum is a little vague on that. Plus, the county executed this Addendum that added new conditions to the purchase agreement, who is to say they won’t change it again if it suits them?
The problem I have is that the plain language of the MSBU that was passed as Ordinance 16-25 says that all costs for the purchase and maintenance of the land will be paid by the MSBU. It says specifically:
“The Project to be provided within the MSBU shall consist of the acquisition of the property commonly known as the Flor-a-Mar (Gulf Harbors) Golf Course, and the operation and maintenance of the Park and Property, including, but not limited to, the actual costs of land acquisition, ongoing maintenance of the Park and Property, or other passive natural resource based amenities or other capital improvements or expenditures proposed by the Advisory Committee or the Board and approved by the Board,…”
It does not have any exception for environmental costs. AND THERE IS NO CAP. That is why the $100 quoted by the county cannot be relied on to be accurate. Had the lawsuit not been filed, we might never have known the true cost of this purchase until we got our tax bills.
Ms. Spirtos wrapped up her presentation by displaying a quote made by Diane in a special news report aired by Action 10 News on the golf course purchase and the opposition to it, in which Diane was quoted as saying that $4.7M was more than $100. She also displayed a post where Diane mentioned the possibility of having environmental testing done on individuals’ homes, and Ms. Spirtos said that it was not true that there would be testing on private property.
The post Ms. Spirtos was referring to was the result of a meeting Diane personally had with FDEP to inquire about the testing protocol currently under way, and what risks might be posed to those adjacent to the golf course. In that meeting, it was the FDEP that said that testing might be done on an individual’s home if the golf course testing showed contamination near that home, and the protocol required testing on that home’s lot to delineate the boundaries of the contamination. Any testing on a private home would require that homeowner’s permission.
A question and answer session was held at the end of the meeting, and about 30 people stood up to ask questions. Some of those questions have already been discussed above. The nature of the questions I think clearly showed that there is still a great deal of concern in the community about how this purchase has been handled, and what is going to happen in the future. Diane’s lawsuit is currently scheduled to go to trial on April 15, 2019.