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PINELLAS GAVE SMITH QUICK FIX FOR PROPERTY

It could have tried to repair damage that the property appraiser called "devastating."

Pinellas Property Appraiser Jim Smith says flood control work the county did on his Tarpon Woods property "devastated" the land.

Here's what the county did to the property, according to a Times analysis:

- Hauled away branches and trees blown partly or completely over by the hurricanes of 2004.

- Dug trenches to improve the flow of Brooker Creek.

- Cleared out brush, saw palmettos and small trees up to 4 inches in diameter.

Someone also carved a 10-foot boat landing into the creek bank, though neither the county nor its contractor says it did the work.

County officials considered the damage to be minimal. Indeed, they could have tried to correct it by replanting some of the lost vegetation or making other fixes.

Instead, the county paid Smith $225,000 for the property, nearly four times its assessed value - a purchase that a grand jury will begin scrutinizing today.

If Pinellas officials had forced Smith to sue the county - a politically risky move for an elected official - any legal judgment he won would have been limited to $100,000 under Florida's sovereign immunity law. Getting a larger judgment would take an act of the Legislature.

An interview with the county's contractor on the work done on Smith's land sheds new light on exactly what was done without Smith's knowledge or permission and the extent of the damage.

"I still believe our crew acted properly," County Administrator Steve Spratt said last week.

But other counties get written permission before stepping onto private property.

- - -

The work on Smith's land began in December 2004 and continued through April 2005.

Officials say it was an emergency - even though it had been three months since the hurricanes. They remembered how Brooker Creek had flooded and the complaints from neighbors.

"It was underwater," said Jan Herbst, the county's director of public works. "So my first question was not, 'Oh, do we have the authority to go in there?' It was, 'What are we going to do to lower the water so that the citizens on Toniwood Lane and Brian Road could get out of their subdivision?' "

St. Petersburg contractor Mark Pringle was working in Ormond Beach in December 2004 when Pinellas officials asked him to begin work on Brooker Creek immediately.

Why the rush?

"They said in order for them to get the go-ahead, it had to be started before Jan. 1 of 2005," Pringle said.

An executive order from the Southwest Florida Water Management District that authorized the county to clean up hurricane debris required that the work start by Dec. 31, 2004.

By then, flooding had subsided, Pringle said. He worked three or four days, returned to Ormond Beach to finish that project and returned to Brooker Creek about two weeks later.

He said he cleared debris and fallen trees, including a cypress that landed across the creek.

Two leaning trees also were removed from Smith's property, said John Holt, the county employee who was in charge of the work.

Pringle said he also took out trees up to 4 inches in diameter and saw palmettos. That contributed to Smith's complaint that he could see neighboring condos.

At the county's direction, Pringle also dug a second channel that straightened the creek's path wherever the creek twisted or narrowed enough to impede flow. The new channel deepened low-lying areas where water naturally overflowed during floods.

Pringle said he made the channel about 3 to 4 feet, but erosion has further deepened it to about 6 feet. Now water stands in it even in dry weather.

Pringle said his creek work extended nearly half a mile downstream from Tarpon Woods Boulevard, far beyond Smith's property.

Pringle didn't worry about whose property he was working on. His proposal for the $49,700 job said the county was responsible for any permission or permits required for the job.

Just downstream from Smith's property, homeowner Michael Gauwitz watched as Pringle dug out the second channel on the edge of his back yard.

No one from the county called him, either.

- - -

That's not how it's done elsewhere.

Except in life-or-death emergencies, drainage management officials in Hillsborough, Polk and Orange counties say they get permission in writing from landowners first.

In Polk, which was hit directly by three hurricanes, county drainage manager Jay Jarvis said the county asked property owners along the creeks to sign right-of-access forms before going onto private land to clear trees and debris from creeks.

It's the same in Hillsborough and Orange counties.

Even with emergency orders from the local water management district, "you still need the property owner's permission to enter the property," said Ron Ribaric, Orange County's assistant project manager in charge of operations for emergency response.

And instead of buying property for creek maintenance, other counties say they prefer to have an easement giving them access to a site, as long as they get permission first. That way, they don't have to maintain the property, but if they damage anything they fix it.

Ray Wagner, a senior field operation manager with the Pinellas County Highway Department, said he too prefers having an easement for such work.

So would having an easement to Jim Smith's property serve the county's purposes for creek maintenance just as well as owning the land?

"Yes," Wagner said.

- - -

While Pinellas County bought Smith's damaged land for $225,000, that's not a typical approach, says Michael Allan Wolf, a law professor at the University of Florida and an expert on local government law.

To Wolf, the case sounded like an issue of trespass. The "remedy for trespass," he said, "is to determine the damage to the property. And it's not typically forced purchase of the property."

Moreover, he said, Florida's sovereign immunity law says that when government commits the trespass, the amount an individual can recover is limited to $100,000 - unless the plaintiff can get a bill increasing the judgment through the Legislature.

Times staff writers Jonathan Abel and Joe Childs and researcher Caryn Baird contributed to this story.

FAST FACTS

Grand jury meets

Key players in the land deal are expected to begin testifying today in a grand jurry room on the fourth floor of the Criminal Court Complex in Clearwater.

Grand juries in Florida have broad powers. They can examine criminal activity as well as noncriminal ethical and legal violations, including whether public officials have been "incompetent or lax in the performance of their duties."

Testimony will continue Friday and perhaps resume early next week. The grand jury decides when it can gather based on the availability of its members.

Proceedings are closed to the public.

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