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Business Observer Friday, Apr. 15, 2005 14 years ago

Hidden Pipes Mar Properties

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Homebuilder Brian Decosmo uncovered an unwelcome surprise where he planned to build his family's dream home.
by: Adam Hughes Staff Writer

Hidden Pipes Mar Properties

By David R. Corder

Associate Editor

They called it the "Roaring '20s," eight years of national prosperity from 1921 to 1929. Mass assembly of the automobile made once isolated destinations such as Tampa accessible. The city's real estate industry flourished. It was the era that saw the creation of the Davis Islands residential community.

Across Hillsborough Bay, real estate speculators feasted on the mostly undeveloped South Tampa peninsula. To bolster development opportunities there, a special taxing district installed a stormwater drainage system to prevent flooding of the low-lying area.

Nearly 90 years later, there are obvious weaknesses in the aging South Tampa stormwater drainage system and others throughout the city. The city had acquired the system in the mid-1960s through annexation.

Officials aren't sure of the extent of the drainage system problem that Brian Decosmo and his wife, Pam, recently discovered when they bought a vacant home lot on Mullen Avenue, just off Lois Avenue.

If Decosmo's claim is any indicator, the city may face legal liability for stormwater drainage pipes that traverse a number of private properties in South Tampa.

It appears the drainage district neglected to obtain or record the required easements to construct the pipes across those private properties. Many property owners may not realize the pipes cross their land until they need a building permit. That's how Decosmo discovered the problem.

Earlier this month, the Decosmos accused the city of an illegal public taking of private property. They've hired an experienced eminent domain attorney, Allen Dell PA's Richard Harrison, to litigate an inverse condemnation complaint.

On the surface, Harrison makes a strong argument. Article X of the state Constitution prohibits public use of private property without just compensation. He says there is no indication either the drainage district or the city obtained the required easements from any of the lot's prior owners.

"According to the title commitments my clients obtained, there are no recorded easements or any other recorded interests on behalf of the city that would permit this type to be placed on my clients' property," he says.

It's not as if Decosmo is naïve about issues such as easements and inverse condemnation. This native South Tampa resident builds homes for a living in partnership with Dan Craven, owner of South Tampa's Building Concepts Construction Co.

Nevertheless, the discovery earlier this year came as a shock to the couple. They had had spent months searching for just the right lot to build their dream home.

In September, the couple had signed a contract for $217,500 on the 75-foot by 138-foot lot on Mullen Avenue. They looked at 50 to 60 lots, perhaps. This one met their needs, however. It was close to the schools they wanted for their two children, ages 4 and 2. It also fit their budget.

"It's not hard to find lots in South Tampa," Decosmo says. "It's hard to find lots reasonably priced. Lots and teardowns come up for sale and are gone in a day."

The couple completed all the required due diligence on the lot. Tampa's Robertson & Associates Surveying & Mapping Inc. surveyed the property. Majestic Title of Central Florida Inc. did the title work, which should have uncovered any recorded stormwater utility easements. The research apparently satisfied First Horizon Home Loan Corp., because it lent the couple a $484,500 construction loan.

Even the prior owner, Keiran C. O'Neill, gave Decosmo a copy of a survey he ordered a year prior to the sale. It, too, gave no indication of a stormwater utility easement on the property.

In early November, the couple closed on the deal. They were anxious to build. Decosmo applied to the city's Construction Services Center for a building permit. Officials there approved it, but then advised him the city's Stormwater Department also had to sign off on it.

"They said, 'There could be a problem ... ,' " Decosmo recalls. It appeared a boxed concrete culvert traversed a corner of the lot.

Officials at the Stormwater Department didn't offer much more information, Decosmo recalls. They showed him a copy of the city's "Stormwater Atlas."

Sure enough, a drawing in the atlas showed a utility line crossing a corner of Decosmo's lot. But officials told him he would have to physically locate the culvert and provide the department with an accurate survey.

Decosmo acquiesced. He hired South Tampa plumber Gary Bonar to find the culvert. He found it all right: a 6-foot by 5-foot concrete culvert. Only it didn't cross just the corner of the lot.

"It goes right through the middle of the property," Decosmo says.

Right away, Decosmo realized the significance of the find. The cost to fiind and map the concrete culvert cost him around $1,500. It would cost, perhaps, another $5,000 just to re-engineer the building plans to factor in costly foundation supports so the house could straddle the boxed culvert.

"It could be $10,000, $20,000 or more to make this work," Decosmo says.

There were other matters to consider, Decosmo says. Forget about quality of life issues such as a swimming pool. What happens if the culvert deteriorates and floods the property? Who pays?

"The pipe is old," he says. "What happens to the pipe if the city can't fix it? Does the city have to fix it or reroute it? My concern is about all the people who had their houses flooded (last year) in South Tampa. They're out (of their houses) for six to eight months, and the city still hasn't fixed the problem."

No matter how the couple examined the problem the two could not find a workable solution. They have a balloon payment due next November on the construction loan.

To compound the problem, they sold their other home in anticipation of building on the Mullen Avenue lot.

Rather than dwell on the problem, they have resumed their search for a suitable home site. They want a judge to sort out the rest.

So far, Harrison says he knows of no one else with similar complaints pending against the city. He says the city is aware of the Decosmo lawsuit. Now the city must respond.

"It's a two-step process," Harrison says. "The first step in an inverse condemnation is for the judge to determine whether there has been a taking by the city. If so, the judge will enter an order that there has been a taking. If there is a judicial finding a taking has occurred then the second step is for a jury to determine compensation for that taking."

Meanwhile, city officials acknowledge a controversy exists over the South Tampa stormwater drainage easements.

"The legal department is going through and doing an analysis of that issue," says Chuck Walter, Tampa's stormwater director. City Attorney David Smith did not respond to a request for comment.

Earlier this year, Walter unveiled the city's first stormwater capital improvement program. Although it does not specifically cite South Tampa, the five-year, $60 million includes budget allocations for costs related to easement problems.

The plan proposes $1.5 million in costs to acquire property with pipes under structures and another $1.3 million to relocate pipes from under structures. It does not specify whether potential legal costs are included in those figures.

The challenge now is get an accurate inventory of the city's stormwater drainage system, Walter says. Once that is finished, his department should have a better idea about the extent of the citywide stormwater drainage issue.

Until then, he says, the city must move forward with plans to increase the stormwater fee the city charges businesses and residents. That money is needed to back a proposed $20 million municipal bond to pay for stormwater infrastructure upgrades.

The issue in Walter's view has more to do with changing expectations than anything else. He says the city just outgrew the drainage system installed and maintained by the city and the independent drainage district.

"(The drainage district) made a lot of improvements," he says. "They did a good job for the day."

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