Judge Halts Hearing With Betmar, Resident
Article Courtesy of The Tampa Tribune
By Laura Kinsler
Published December 22, 2008
ZEPHYRHILLS - The Betmar Acres homeowners association was portrayed as rude and overbearing Thursday during a court hearing over its attempt to remove a mobile home from its park.
Pasco Circuit Judge Susan Gardner will have to decide whether to uphold the injunction that would force homeowner Cheryl Okke to remove the 2005 unit she installed last year. Gardner had set aside an hour for the case, but after nearly two hours she cut the hearing off and ordered both sides to schedule another hearing.
"Clearly, there are outstanding issues at this time," Gardner said. "I am not entering or granting an injunction. I am simply taking it under advisement."
The case has divided the 1,670-home community, and dozens of residents attended the hearing.
At issue is a discrepancy between the community's bylaws and its deed restrictions. The deed restrictions say property owners cannot install mobile homes unless they are new. The homeowners association bylaws further restrict owners from installing new mobile homes that are more than a year old.
Okke said she was not aware of the year-old rule, which was adopted by the board a few weeks after she purchased her lot in 2007 - and before she actually moved into the community. When she decided to replace the existing 1971 trailer with a 2005 model the following year, she believed she was following the rules.
The unit had never been titled and would have complied with the bylaws that were in effect when Okke closed on her property.
Attorneys for Okke and for co-defendant Karsten Gallery of Homes portrayed the association board members as renegades who met in secret, overstepped their power and were just plain rude.
Attorney Jim Wilson's cross examination of trustee chairman Marshall Wagner attempted to show just that when he asked why Wagner never responded to a letter from Karsten asking the board to consider a variance request for Okke.
"The request did not come from Ms. Okke," Wagner said. "We don't consider requests from nonresidents."
The board filed its lawsuit a few weeks later.
"So a request for a variance was made, and your response to it was to file a lawsuit?" Wilson asked. "Why didn't you call someone at Karsten to let them know the request had to come from Ms. Okke? What about common courtesy?"
Wilson also pressed Wagner to admit that Okke's decision to replace her 1971 single-wide trailer with a new, 1,200-square-foot unit would improve the quality of the neighborhood.
"I suppose ... eventually," Wagner said.
Karsten attorney Christian Robin said the homeowners association board didn't have the legal authority to enforce restrictions on individual homeowners, nor did it have the authority to sue Okke without the consent of the homeowners. He also said the board violated Florida law when it held a closed meeting in October to consider Okke's variance request.
Betmar resident Linda LaForest testified that board members posted a security guard at the door to keep homeowners out of the meeting.
The judge ended the hearing while LaForest was still on the stand. She gave the attorneys two weeks to submit legal briefs and set a date for another hearing.