Inheriting a sticky wicket
By DIANE STEINLE, Editor of Editorials
Published July 15, 2007
Now, here's your basic nightmare:
A developer starts building a luxury condominium tower on prime waterfront land. Tons of concrete and steel are assembled, floor by floor - 10 floors, 20 floors, 23 floors, stretching upward toward a planned height of 25 floors. The developer invests more than two years and $100-million in the project. Most of the condo units are sold.
And then, the developer discovers that someone else may own part of the land on which the tower is built.
And that "someone else" may not be an individual with whom the developer could work out a convenient settlement, but more than 100,000 someone elses - all the residents of the City of Clearwater, in fact - and not only may they own the land, but they may be legally entitled to vote on whether the developer should have the land.
Holy moley. Imagine the horror that must have washed over the people at Opus South, the Tampa developer of the Water's Edge condominium complex in downtown Clearwater.
Opus South took a big risk by building its project in downtown Clearwater, which has fallen on hard times since beach traffic that used to traverse Cleveland Street was diverted onto the new Memorial Causeway Bridge. But the Opus South folks believed downtown, with its high waterfront bluff and spectacular views, was a diamond in the rough and chose to make a huge investment there.
Opus South bought the Calvary Baptist Church property at the corner of Osceola Avenue and Cleveland Street, where the church had been a fixture for decades. The prime parcel overlooks Clearwater Harbor and is next door to Clearwater City Hall. Clearwater city officials loved the Opus project, which would bring both retail shops and 153 luxury condo units to the heart of downtown.
Fast-forward to about 90 days ago, when representatives of the developer were in the county property appraiser's office challenging a tax assessment. Oh, by the way, an official in the office said, our records show the city owns a strip of land under your new tower.
Since that moment, a lot of lawyers have been logging a lot of hours on what they call "a mess." It is virtually impossible to determine with certainty who owns the strip of land under the western wall of the condo tower, they say. So last week, Water's Edge did the only thing it could do and sued the city of Clearwater and the church, asking a judge to find that Opus owns the land.
And if the judge decides someone else owns the land, Opus wants the judge to please, please, find a solution that does not require tearing down the tower.
Opus isn't the only party in a dickens of a spot. Imagine the dilemma facing Clearwater City Attorney Pam Akin.
The city doesn't want Water's Edge torn down. The city wants the project finished and filled with people. Yet if the disputed strip of land, which is 19 feet to 32 feet deep and about 170 feet wide, is publicly owned, the city has a fiduciary duty to fight for the public's ownership rights.
Furthermore, if the strip is public property, the city has a legal obligation to follow the dictates of the city charter, which states that public land on the downtown waterfront cannot be sold unless voters approve it in a referendum. And Clearwater voters have consistently opposed development of city-owned land on the bluff.
This situation also is a nightmare for at least two other entities: Calvary Baptist, which could be liable for damages to the developer, and the title insurance company, First American Title, where the individuals who did the title search before the sale must be chewing their nails.
Deeds and maps don't resolve what Opus' attorney, Ed Armstrong, nicely calls an "ambiguity" about the land's ownership, because there are multiple deeds and maps and they contradict each other. The confusion is rooted in land swaps between Calvary Baptist and its neighbor, City Hall, along the bluff during the 1950s. Documents were so imprecisely written that the swaps might as well have been sealed with merely a handshake.
Some folks who read about the issue in the Times last week have slammed Clearwater officials for being careless with public property. The criticism is off base. Things were done differently in the '50s, and besides, the church and city officials involved in those land swaps are dead. Today's officials can't be blamed, and the dead can't be called upon to solve the "ambiguity."
Since the dead don't speak, a judge will have to play the role of Solomon and find a fair solution.
Diane Steinle can be contacted at email@example.com.
[Last modified July 15, 2007, 07:08:34]
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