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Drawing lines in the sand over new house

A man trying to build a new home has wound up in a fight with a neighbor who says the house is too close - by 1.88 feet.

By SHERRI DAY
Published October 14, 2005

DAVIS ISLANDS - At the center of a dispute between two neighbors on a tidy Davis Islands street is a distance smaller than a baseball bat, a yardstick or the average human arm.

Less than two feet could keep Dr. Atef Zakhary from building his dream home at 40 Adalia Ave. The same distance could take a sliver of property from John Giammarco, Zakhary's neighbor.

Each man claims the other's property encroaches upon his own and violates city setback rules about the required distance between houses. And they each have professional surveys to prove it.

The issue has wound its way through various city agencies since spring, when city inspectors issued an order to halt all construction work on Zakhary's home.

But late last month, inspectors lifted the stop-work order, ruling that Zakhary's survey proved his setbacks were correct.

Last week, Giammarco appealed the city's decision. He will face off with city attorneys in an administrative hearing. City attorneys said they are working to set a hearing date.

The case puts the city in the precarious position of deciding which professional survey is correct. If either party disagrees with the outcome, the men could wind up in Circuit Court.

Where is King Solomon when you need him?

"Both of them (houses) can't meet setbacks," said Eric Cotton, an urban planner in the city's Land Development office. The surveyors "were both licensed. One of them is wrong. I don't know which one is."

Senior Chief Assistant City Attorney Morris Massey said the city does not have the staffing to conduct its own property line survey.

"We have to rely on professionals who are licensed by the state of Florida," Massey said. "Their ability to practice in the state is contingent upon their ability to be honest. It may boil down to a private property dispute between the two owners. I don't know. We'll just have to look at this."

Giammarco, a real estate investor, has lived in the two-story brick house at 36 Adalia Ave. for seven years. He claims the rear of his neighbor's house violates city setback rules by 1.88 feet. But according to Zakhary's surveyors, Giammarco's home encroaches on his property by about the same distance.

Zakhary, an obstetrician/gynecologist, bought his property for more than $1-million in July 2003, according to the Hillsborough County Property Appraiser. A dilapidated 1,800-square-foot house sat on the lot covered with debris, snakes and frogs.

Zakhary spent $20,000 to clear the land and quickly began constructing his dream home, which, at 12,000 square feet, will be one of the largest houses on the block.

Giammarco said he noticed a problem soon after surveyors' stakes were in the ground. Zakhary's surveyors, Giammarco said, included a sliver of land, a seawall and a fence that he has long considered his own.

According to Giammarco, he warned the construction crew that survey dimensions were likely wrong. But he said they went ahead with construction. After all, Zakhary had two separate surveys that indicated he was within his building rights.

Tensions escalated in June when one of Zakhary's surveyors called with bad news. The surveyor said his work was inaccurate and only 5.12 feet separated Zakhary's home from Giammarco's property line. City rules require a 7-foot space between each house and the property line. The surveyor also called city building officials, who immediately halted construction.

Zakhary and his lawyer immediately applied for variance to continue building the house with the 1.88-foot encroachment. In his application to the Variance Review Board, Zakhary said halting construction represented a hardship, especially given rising construction costs and mounting mortgage payments on a home he could not occupy.

At Giammarco's urging, six Adalia Avenue homeowners wrote letters opposing Zakhary's request. Neighbors cited the sheer size of the Zakhary home and what they believed to be the open flouting of setback rules as primary reasons for their opposition.

In his letter to zoning officials, Giammarco said caution and due diligence on the owner's part would have kept things from escalating to this point.

"Continuing construction for nearly two months while knowing there was a potential problem was careless and showed no regard for our property rights," Giammarco wrote. The three-story home, he wrote, approached 8,000 square feet and blocked "any view on the left side of our home."

Zakhary's representatives said he should be excused because his builders and engineers had relied on surveys they thought were correct. Because his representatives used all of his alloted presentation time before the board, Zakhary was not allowed to speak.

Charles W. Jackson, whose home borders Zakhary's on the west, spoke in favor of his new neighbor. Jackson said his neighbors erred by thinking that if they opposed Zakhary's variance request, they could permanently stop construction.

"Believe me, if I thought I could have prevented him from building his large home, I would have done that," Jackson said in an interview.

"It's really a sad situation that this poor guy has been placed into. Because we can't stop him from building the big home, let him finish it, make it look nice, and we'll all be proud to have it in the neighborhood. We need to get over it."

Siding with Giammarco, the Variance Review Board voted 6-1 on Aug. 9 to deny Zakhary's application. But a day before Zakhary planned to appeal the board's decision to the City Council, he had a city-issued permit to resume construction.

City inspectors approved Zakhary's building plans after reviewing the results of two additional independent surveys. The surveyor who initially said he erred also called to say he re-examined the area and now stood by the validity of his first survey.

It would seem that the dispute was finally over.

Earlier this week, Zakhary walked his property. He talked with a construction worker about cleaning away overgrown grass and debris so that work could resume soon. He is also rounding up building crews.

"Part of life is to put up with this," said Zakhary, who had initially planned to move into his house in December. "I'm used to it after 24 years in this country. I would rather the neighbors judge themselves accordingly."

Zakhary reserves the bulk of his anger for David Smith Surveying, which he says is responsible for much of the confusion that delayed building. Smith said a conflicting survey provided by Giammarco caused him to doubt his initial results. But after Smith reviewed surveys and information that date back to 1926, he realized he had been right in the first place.

Next door, Giammarco has a plan of his own. In preparation for his administrative hearing, he recently hired another surveyor to plot every lot on the block. Giammarco is certain the new survey will prove him right. But whatever the outcome, he pledges to abide by the final survey's results.

"If the survey shows that I'm wrong, I will drop it," he said. If not, "I will continue to defend my property rights. We have no intention of moving."

- Editor's note: City Times staff writer Amy Scherzer was among the six neighbors who wrote letters to the Variance Review Board opposing Atef Zakhary's request. Scherzer was not involved in the reporting of this story.

Sherri Day can be reached at 226-3405 or sday@sptimes.com

[Last modified October 13, 2005, 08:20:12]