Posted on 05/14/2002 5:05:40 AM PDT by Cincinatus' Wife
EAST LAKE -- Many residents thought they owned the lake behind their $300,000 homes. They mowed up to the water line and chipped in yearly to treat the lake for algae blooms.
So it came as quite a shock Thursday when workers began erecting a 6-foot-high fence around the lake, obliterating their view.
For good measure, the workers painted a portion of the fence behind Alice Beehner's home bright pink and decorated it with sparkles.
"Isn't that atrocious?" Mrs. Beehner said Monday, pointing to the fence a few feet from her screened-in pool. "It's sickening!"
For 10 years the developer of their Tarpon Woods subdivision had let the taxes lapse on the 4-acre lake and a thin band of land around it.
A real estate speculator swooped in to purchase it for $1,000 at a delinquent tax sale in February. The speculator, 44-year-old Don Connolly of Valrico, now is offering to sell the land behind each of the homes for $30,000 per homeowner.
Residents ignored a letter from Connolly, trustee of the Lake Alice Land Trust that purchased the lake, offering to sell. Instead, someone took a couple of survey posts marking the property boundaries and threw them into the lake.
Connolly said that's when he decided to build the fence.
He started behind Beehner's meticulously landscaped property. The new fence separated her from two mature laurel oaks she planted shortly after moving into her home 17 years ago.
[Times photo: Jim Damaske] The fence behind the house of Alice Beehner, with dogs Beethoven and Bridgette, is pink with sparkles. Don Connolly says the color is to warn workers to stay away "because that person is very volatile and confronted us in the past."
"It's total extortion," Mrs. Beehner, 61, said Monday.
Connolly said he offered to sell the property to the homeowners as a courtesy.
"Is selling a piece of land extortion?" he said. "That doesn't make any sense to me."
He said he specializes in buying properties at tax sales. Records show he owns 50 properties in Pinellas County. Connolly said he owns 150 to 200 statewide.
"When people don't pay their taxes, this is what happens," he said. "I was willing to pay more than anyone else for this property. . . . The business we're in is unpleasant sometimes."
Connolly knows the consequences of failing to pay taxes.
Records show that in 1997 he was charged with failing to remit more than $100,000 worth of sales tax for an auto sales business he owned in Hillsborough County. Connolly blamed it on the company's accounting firm and said he reached a settlement with the state.
Because homeowners have rebuffed his offer, Connolly said, he now plans to develop two or three "executive" homes overlooking the lake. It might entail a dredge and fill project to move the lake a bit to the south, he said.
County officials said that would be difficult, if not impossible, to accomplish.
"He can't build on it unless he replaces the stormwater drainage," said Al Navaroli, a manager for the county's Development Review Services Department. "And pretty much all of it is stormwater drainage. . . . He's limited in what he can do."
But there's nothing to prevent Connolly from erecting the fence, Navaroli said, or painting it any color he chooses.
"I certainly see the man is trying to be obnoxious to his neighbors," Navaroli said. "But I don't see that he's violating any codes."
On Monday, the fence stretched across three of the 15 waterfront lots. He plans to extend it all the way around the lake.
"My intention is not to annoy anyone," he said.
As for painting the fence pink behind Mrs. Beehner's property, Connolly said, it was done to warn workers to stay away from that site "because that person is very volatile and confronted us in the past."
Connolly said he was shocked by the vitriol from some of the residents. The offer to sell small pieces of land to individual homeowners is off the table. Connolly said he is now negotiating with one homeowner interested in buying the entire 4.7-acre property.
He would not say how much he is asking. "I'm a reasonable man," Connolly said.
Mrs. Beehner warns the pink fence behind her property could be erected behind any number of homes in Pinellas.
"People need to be warned," she said. "This could happen in your back yard."
Connolly said he owns one other lake in Pinellas County.
But Navaroli said his office believes Connolly may own several properties that neighborhoods consider common areas. Navaroli said he warned the county property appraiser's office more than a year ago about the danger of taxing undevelopable lands, such as retention ponds, or selling those lands at tax sale.
"It's a pretty disgusting mess," said County Commissioner Susan Latvala. "We have to prevent this from happening again. That kind of property should not be for sale."
As for the Tarpon Woods lake, however, county officials said there may be nothing they can do to help the homeowners.
Some homeowners blame the developer, Lloyd Ferrentino for allowing the taxes to lapse. At the very least, some said, he should have notified the property owners so they could have tried to buy it. Ferrentino could not be reached Monday.
On Monday, Connolly's workers continued their fence-building, extending it behind the home of Peter Cieslinski. Cieslinski, 44, who was just released from active duty in the Navy a week ago, said he can't believe the county would allow someone to come in and take away his view of the alligators, turtles and wading birds.
"I look at it this way: There's the spirit of the law and the letter of the law," Cieslinski said. "The county is looking at this as the letter of the law. There's got to be a legal Latin term for "the law says this, but wait a minute, look at the extenuating circumstances.' "
Mrs. Beehner said neighbors plan to hire an attorney.
The homeowners have a good case for arguing hostile posession assuming that the option exists where they live.
No they do not.
There are five elements required for adverse posession, easily remembered by the mnenomic OCEAN, standing for Open, Continuous, Exclusive, Actual and Notorious.
Further, the fence builder in this case received his title from the county in a tax sale. Title from a tax sale trumps even regular posession of property, much less adverse posession.
Still further, the owners of the house could not be said to adversely posessing the lake against the interests of the county in taking it for a tax sale. Governmental property interests cannot be lost through adverse posession, for as the saying goes "Nullum tempus occurrit regi". (Time does not run against the King.)
Yet further, permitted use does cannot result in adverse possession. The owners of the homes likely had permission from the original developer to use and enjoy the property around the lake, so they cannot claim adverse posession.
The person to be mad at here is not the fence builder. The original developer of the land, as well as whomever he sold homes to, were lazy, stupid and/or cheap. There are many ways that the land could have been protected from such shenanigans. By cheaping out and cutting corners they took a risk.
This time the dice were against them.
Suppose the lake remained un-fenced, and one of the homeowner's kids wandered into it and drowned. Who do you suppose they would sue -- the evil lake owner who refused put up a fence around his "attractive nuisance"?
After he sells it, it ain't his problem.
The speculator, 44-year-old Don Connolly of Valrico, now is offering to sell the land behind each of the homes for $30,000 per homeowner.
My favorite hobbies are golfing and hunting, but I would forego both this year if you paid me $30,000. You can both enjoy an activity and at the same time forego said activity for the right price. Now, I'm not claiming he's erected this fence for any reason other than to get his $450,000; however, it is his right to do as he wishes with his property. The homeowners can either put up with his pink fence, or pay the $30,000 to buy the property and tear it down.
He may be a jerk, but that doesn't entitle others to violate his right to do as he wishes with HIS OWN property.
If all this sleeze ball had was the perimiter rights, how did his work crews gain access to build the fence?
He would be selling the lakeside property to the homeowner, not just removing the fence, and would have no further liability.
In that same development, the realtor sold the same lot to 2 different people. Actually, the one couple bought the lot next to the "best" lot but didn't check the boundaries. Buyer beware.
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