UPDATE: May 28, 2019. The county has removed the commissioners’ vote on the MSBU from the May 21 agenda, and said that it was moved to a “date uncertain”. We will be monitoring this if it comes up for another vote in the future.
May 14, 2019 Submitted by Mitchell Kobernick.
On May 21 the Pasco County Board of Commissioners will be voting on the creation of a new MSBU ordinance to get the Gulf Harbors owners to pay for the county to purchase the Gulf Harbors golf course. The county has stated that they will be creating a park on that land, but this MSBU to the contrary actually all but guarantees that a park will not be able to be created.
The proposed ordinance says very specifically that they are not using Chapter 94 of the Pasco County Code of Ordinances to pass this MSBU, but are only using state law, Section 125. This is significant because the last time they tried to pass an MSBU in 2016, they wrote repeatedly that they were using Chapter 94, and conducted a vote of the Gulf Harbors owners under that section. Only after Diane filed her lawsuit and alleged that the vote did not pass, did the county change their story, and even pled in court documents that the vote was never binding in the first place and they never even needed the vote. In the hearing on March 18 2019 where the judge denied the county’s second attempt to get a summary judgment, the judge’s own words are very revealing. To quote the judge from the transcript of that hearing, he said:
“…there’s a petition letter that went out in which in that petition letter it…said “Must vote in favor of or it will not be created.” That’s not plaintiff’s language. That’s the defense language.”(Page 19 line 12) (Note: defense refers to the county)
So the position the county attorney took in the lawsuit was not consistent with the position the county previously took when they were campaigning to convince us to vote for the MSBU. This new MSBU is now being passed without a vote of the Gulf Harbors owners. It appears to me that the county knew the previous vote did not pass, and that’s why they’re trying to impose this new MSBU without a vote, even if it is against the wishes of the community!
And then there is the issue of contamination. The county never did any environmental testing before the scheduled purchase date, and had Diane not filed her lawsuit, I am sure the county would have already bought the golf course without having done any testing. The county knew, or should have known, even before they made the purchase offer, that there was a strong likelihood of contamination. This is evident because the county had just purchased the Timber Oaks golf course. In that case they only did the testing after the purchase, found it was contaminated, and had to remediate. And it is well known that golf courses can be contaminated due to the grounds maintenance, something the county was very well aware of. But the issue of contamination on the Gulf Harbors golf course was never disclosed to the public when the county was asking us to vote for it. Again, to quote the judge:
“Apparently there’s documentation within the motion that say, yeah, it’s contaminated. We’ve got estimates of $315,000 to perhaps as much as $4.7 million and yet the soil borings haven’t even been prepared and the seller is saying I don’t have any money to do it.” (Page 20 line 22)
The seller has been in the process of testing the land since April 2018, when the Florida Department of Environmental Protection ordered them to, and gave them a deadline of December 2018 to complete. The seller did not meet that deadline, and received an extension to May 31, 2019. Nothing currently on file with the DEP shows that they are going to meet that deadline either. So the county is trying to pass a new MSBU to buy the land and we still don’t know just how contaminated the land really is.
To the issue of the county saying that we don’t need to be concerned about the contamination because the seller will be paying for it, I quote the judge:
“The County comes back and says, well, we are saying the seller has to present a clear bill, but so. But that’s going to cost money and, so far the seller hasn’t done anything and is saying I’m not going to do it.” (Page 21 line 3)
Even worse, the county has said the seller will pay for the remediation, or the county will not close on the property. That is a fairly clear and unambiguous statement, but the facts don’t support it. Again, I quote the judge discussing the purchase contract, with the county being the buyer:
“It says here the buyer may, may terminate or the buyer may choose to close. So, in other words, there’s no guarantee. So, in fact, the fact that the contract says that you have to handle this contamination issue, okay, there’s nothing that prevents the county from closing.” (Page 22 line 3)
So despite the county’s continued promises that the seller will pay for the remediation or the county will not close, the documents just don‘t seem to support that.
One other issue that has a lot of people upset is how much the county is paying, or should I say, making us pay, for the purchase. Rather than make that argument again, I will let the judge’s words speak to that:
“So this case again it doesn’t challenge the spending decision. But I’m going to tell you the County right now based on what they know shouldn’t they be going back and saying wait a minute I got a contamination problem that’s at least $300,000. I’m buying a property, a piece of property, that was valued at the most of $275 and I’m paying $1.2 million. It seems to me that it doesn’t pass the smell test.” (Page 22 line 16)
The county even tried to get a higher appraisal, and was able to get their appraiser to raise his value to $600,000, but only by using a hypothetical condition that the property could be developed, and here is what the judge had to say about that:
“So this seller comes in and he says, hey, all right, I’ll re-value. I think I can sell or build I think was 40 or 50 residential units. But based on what we’re hearing that is unrealistic, so if that’s unrealistic then the valuation is unrealistic. Okay. And, therefore, that’s a detriment to the residents of Gulf Harbors who are in this MSBU…” (Page 25 line 4)
It is important to remember that the owner of the golf course has stated that she does not care anymore what happens. That is probably because she will not get anything from the sale, only the lienholders will get paid. Is it a coincidence that the lienholders are owed about $1.2 million, and that just so happens to be the purchase price, even though the property is at best worth $275,000. So why does the county not just pay the fair market value of $275,000? Could it be because then the lienholders would not be paid? These lienholders are a trust for the Orsi family, represented by Patricia Buck, a realty company owned by Dewey Mitchell, and the law firm of Hobby and Hobby. It would not be a stretch to presume that these developers and attorneys may have some connection to one or more of the county commissioners.
It is clear from the judge’s comments that he sees what is really going on with this deal. The county knows they are going to lose at trial, and that’s why they have delayed the trial date twice already. There is no way they are going to allow Diane to have her day in court. And in this latest tactic, they are trying an end-run by passing a new MSBU ordinance to replace the current MSBU that is still in court. But this time they are trying to pass it without a community vote. And this new MSBU is just as dangerous to our community as the old one. It still says that all costs of the MSBU will be paid by the owners in Gulf Harbors, except for the portion of the property that is devoted to the ELAMP conservation area. One change is that the new MSBU now says that the MSBU will not be charged for any environmental costs. That is something we have been fighting for from the beginning, and it sounds good that they have finally agreed to it, until you realize what it does NOT say.
It does not say that the seller will pay for any required remediation, and it does not say the land will be remediated before the county purchases it.
If it was truly the county’s intention to honor these promises that it made in the past, why not include that language in the MSBU? Instead, they ignored those prior promises completely. It has already been conclusively established that the county could purchase the property in its existing state, with the contamination still there, and nothing in this new MSBU would prevent that.
So in my view, if this MSBU passes, the county will just purchase the property, tax us for it, and we will be left with contaminated land that cannot be improved unless it is remediated first. And we still don’t know what that remediation might cost, or who would pay for it, if anyone! Remember there is no obligation for the seller, the county, or anyone else, to pay for the remediation. And the county will own it, not us. So what the county said at the very first public hearing in 2016, that “what you see is what you get” will in fact come to pass. The golf course will end up looking exactly like it does today, with no park, and we will have to continue to pay for it.
The entire proposed MSBU ordinance is posted under the “Golf Course” tab above.