It Stinks

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Posted November 22, 2022 | By Belea T. Keeney
belea@magnoliamediaco.com

Photos by Dave Miller/Special to the Gazette
Bruce Ackerman bruce@ocalagazette.com

When Suzy and Richard Stam try to use their lanai, the smells and chemicals from the Marion Landing wastewater treatment plant adjacent to their backyard drive them back indoors.

Besides the noxious odors, “We don’t know what chemicals they’re using,” Suzy Stam said. “I feel it in my eyes and nose, even my throat.”

Neighbors Karen Humphrey and her fiance, Hunter Matassa, also are disgusted by the smells, which threaten to wreck their dream of starting a new life together. “We’re hoping to have our wedding ceremony in the backyard,’’ Humphrey said.

The two couples are among more than a half-dozen owners who in the summer of 2021 moved into new homes built on SW 88^th Loop at the northernmost section of the JB Ranch development in southwest Marion County. This part of the community is just east of SW 60^th Avenue, with SW 92^nd Lane the most southern portion that is built out.

The northernmost part of the development abuts Marion Landing, which was first platted in 1986. The treatment plant belongs to Marion Landing, but does not have houses nearby. Instead, the area is used for a drainage retention area and as RV and boat storage for its residents.

Many of the new JB Ranch owners are from out of state, and several of them bought their house and land packages sight unseen. While this can be a risky step for homebuyers, the combination of COVID-19 restrictions and the frenzied 2021 real estate market led to more and more people relying on virtual tours and assurances from real estate agents and developers.

But sometimes, the pictures and videos don’t tell the whole story. As one local real estate expert noted, “There are no smells in a virtual tour.”

Immediately after taking possession of their homes, the owners became aware of the problems coming from the sewage treatment plant, whose location they say was never disclosed to them. Photos and videos taken during construction showed vegetation in the backyard, which blocked the view of the plant. The developer has subsequently removed virtually all of the greenery and replaced it with a fence.

Faced with almost unlivable conditions, several of the owners have sought relief from the developer, the Marion County commission, the Florida Department of Environmental Protection (FDEP) and local real estate lawyers. Each entreaty has met a dead end.

Sight unseen equals site unsmelled

Carol and William Lovas initially had a contract to buy a house in On Top of the World, but that deal fell through. They were in a time crunch because their home in Ohio had already sold, and they were relieved to find new homes were being built at JB Ranch within their time frame. The houses on SW 88^th Loop would be ready for their move.

The couple was tied up with their move out of Ohio and were unable to travel to Ocala to keep an eye on construction. They did not see the lot or view it online. Instead, they worked with a Horton salesperson who sent them pictures of the construction process, which included images of greenery blocking the view of the sewage plant.

Horton, Lovas said, kept pushing back the closing date. Finally, in August 2021, they moved into JB Ranch.

On the day they arrived, Carol Lovas said, cleaners, painters and flooring teams were still working on the house. “With all that going on, no one was paying attention to the backyard,” she said.

Suzy and Roger Stam concede that buying a house without looking at the area online was a bad idea. Previously, the couple had a very positive experience in buying a new house in Washington State, and they felt good about this deal.

“We didn’t really investigate. We were a little naïve to think that it all would be perfect, but it turns out we were deceived on many levels,” Suzy Stam said. “We knew we were taking a little bit of a risk by not actually seeing the finished product. We felt the setting was beautiful and the lot initially had a lot of vegetation in back.”

The Stams had issues with interior aspects of their home as well as questions about the treatment plant. On the day of closing, Suzy Stam said, Dawn Hartman, the manager at the D.R. Horton sales office, refused to do a walk-through with them or answer any questions. Feeling boxed in, with a moving truck on the way and no other place to live, they continued with the closing.

They noticed the noise and odor issues during their first night in the house.

“The smell wasn’t as bad, but the noise was all through the night,’’ she said. The sewage treatment plant machinery goes off and on irregularly, 24 hours a day.

They were so upset about the plant and their later treatment by Horton staffers that they listed their house for sale in October 2021, before they had even totally unpacked. At the time, the house hadn’t been completely painted inside. Though there were a few showings, no offers came and they took it off the market in January 2022.

The couple chose to move to Ocala specifically because Suzy has health concerns and wants to be close to medical specialists in the area. Suzy Stam said she is especially worried for herself and her other neighbors with medical issues because, she said, neither Marion Landing nor the FDEP will tell them what chemicals are being used to treat the wastewater.

Blurring the lines

So far, representatives from D.R. Horton, a nationwide company that bills itself as “America’s Builder”, have declined numerous requests for comment from the Gazette.

Records show that the majority of the homeowners impacted by the water treatment plant got their mortgages through DHI Mortgage Co., which is a subsidiary of D.R. Horton. The mortgage company touts itself as a “one-stop solution’’ for buyers and emphasizes that the lenders are “in regular touch’’ with the builder, D.R. Horton.

This relationship takes on greater significance because the mortgage lender chooses the appraiser who assesses the value of the property before the mortgage loan is issued. The intent of the bank ordering an appraisal is to seek a neutral opinion on property’s value to insure that it satisfactorily secures the mortgage they are issuing. The neutrality of that opinion could be eroded when the lender and seller are part of the same company, and the appraiser hopes to receive more work from the company.

When conducting an appraisal, the appraiser will consider the home’s location, which is critical in valuing a home. They will assess the home’s proximity to desirable schools, a low crime rate, and the home’s proximity to a hospital, fire station, and police station. They will also assess other factors that impact the property value, including environmental.

No smells in a virtual tour

The due diligence period in Florida can vary from contract to contract, but the standard time period is usually 10 to 15 days. This allows time for the buyer to conduct inspections, do further research and generally find out what they want to explore about a neighborhood.

Florida law for seller disclosures is based on the assumption that sellers know best of any “material facts” and defects about the property, and specifically those not readily visible—called latent defects—such as termite damage, plumbing in concrete slabs, basements that flood and the like. Disclosures rarely have to encompass the area outside the property lines with the exception of known environmental hazards such as coastal erosion.

The original case law was a result of Johnson v. Davis, 480 So.2d 625 (Fla. 1985). It stated that, with some exceptions, “a home seller must disclose any facts or conditions about the property that have a substantial impact on its value or desirability and that others cannot easily see for themselves.”

Virginia Wright, president of the Ocala Marion County Board of Realtors, is seeing this type of problem more often these days.  It’s more common now for the entire real estate transaction—showings, inspection reports, closings—to take place long-distance with a buyer never setting foot on a property until after closing.

“We’re getting into this now with more and more buyers from out of state, using virtual tours and virtual showings,’’ she said. “We know as a Realtor® that they’re not coming down to see this property until the day they close.”

Ideally, she said, a virtual tour should include the entire community and a drive-by of the lot, showing what is there.

“It’s a challenge with virtual tours and virtual inspections,” she said. “As a Realtor®, I feel you have an obligation to that buyer to complete that due diligence. But that’s not a legal requirement or standard.”

She said she would like to see the law changed to better protect buyers and hopes for disclosure statutes to reflect virtual tours in the future.

So-called “non-latent” defects, which are readily and easily seen by the buyer, do not have to be legally disclosed. A home’s proximity to an asset or defect—a major highway, a golf course, a cattle farm or a horse farm—or the like is presumed to be obvious, per the law.

“The seller does not have to legally disclose a sewage plant is near because you can see it when you drive through a neighborhood,’’ Wright said. “Federal housing laws restrict what can be said [about a property or neighborhood.] There are no smells in virtual tour.”

Carla Lord, a real estate broker and owner of Ocala Homes & Farms Realty, said the adage of “location, location, location” is still true, and a lot’s location has clear impact on its ultimate value.

“Typically, homes close or nearby to heavy traffic and highway noise have a much longer time on the market,” she said. “The same can be said for homes or properties located near industrial or commercial areas. These are the least desirable area for potential buyers.”

The Lovases assumed that all the D.R. Horton staffers were real estate agents; in fact, none of them were, nor are they required to be in the state of Florida when selling home and land packages.

Karen Humphrey said that before she and her fiancé, Hunter Matassa, bought a home and land package from Horton in 2021, she did look at online aerial images of the site and saw the water of the Marion Landing plant. Thinking they were ponds, “I hoped for ducks,” she said with a rueful laugh. It did not occur to her that the round bodies of water would be sewage, she said.

“We don’t have things like this in Maryland, all sewage is underground,’’ she said. “We never considered it would be sewage.”

She and Matassa first saw the property in person in May 2021 along with their real estate agent. They put down a deposit and received updates from their agent and D.R. Horton during the construction. The overgrowth and vegetation was in place, obscuring the view of the plant.

They returned to Ocala in August and saw the property again in person. Railings from the sewage plant showed over the brush, and Humphrey thought it might be a diving board. When she asked the D.R. Horton sales staff, she said she was told it was an area for RV parking.

They did notice the smells, Humphrey said, but they thought the cause was the numerous portable toilets that dotted the construction sites on the same street.

Karen Byron bought another property in JB Ranch after touring SW 88^th Loop and noticing the noise and smell. The salesperson, she said in a letter to the Marion County BOCC in support of the other residents, said the noise “only happened once in a while.”

Byron’s letter also stated, “I just happened to be one of the lucky ones that noticed the smell and did not get stuck buying this house.”

Residents asked for fixes from multiple sources

Several of the residents brought their complaints to the D.R. Horton sales office onsite, but they left without results. Stam, Humphrey, and Dan Heitzman, who also lives on SW 88^th Loop, then sent letters asking for help to the Marion County commission.

Carol Lovas spoke to the commissioners during the BOCC meeting on June 21.

“I don’t know how building permits were ever given to these houses to be built where they were,” she said. She brought a packet of materials, including photos of the plant showing how close it is to the homes, and commented that “an outdoor chute and the stool—you can see it—actually faces toward the back of our houses.”

The wastewater splashes all around, she said, adding, “How this is in compliance, I will never know. The smell is outrageous.”

Trees and vegetation that were originally in the buffer between their backyards and the Marion Landing property line were removed by Horton, and a white vinyl fence was installed. The area now has only a grass strip, which is easily mowed and maintained.

“A lot of greenery was in the back, and Horton promised to build a fence but tore down all the shrubbery,’’ Lovas noted. “We’re hoping you can help us somehow.’’

Commission Chair Carl Zalak said he felt this was a private matter between the homeowners and the developer.

He advised the residents to get with the FDEP, adding, “We don’t have any authority over the wastewater plant. They are the only ones who can enforce regulations for the plant.”

County Administrator Mounir Bouyounes said, “They are legally platted lots and it’s the decision of each individual where they buy in that subdivision.” He reiterated that the FDEP regulates the plants.

Lovas countered with, “You do have to look out for the health and safety of your constituents.” She questioned who approved the homes so close to the plant.

Zalak said they would send the FDEP a letter and request inspection of the Marion Landing plant, and the meeting action summary did show that direction to county staffers. The county also performed a noise inspection at residents’ request and reported that the 50-60 decibels recorded were within legal limits. At the June 21 BOCC meeting, Bouyounes offered to have the county noise inspection redone.  

Commissioner Kathy Bryant, who is also a licensed real estate agent, also had advice for Lovas at that meeting.

“I would also highly recommend contacting a real estate attorney because this should have been disclosed to you,’’ she said. “This absolutely should have been disclosed to you in your real estate transaction.”

The residents say they have reached out to several real estate attorneys in the area, all of whom have declined to speak with them, citing possible conflicts of interest.

The homeowners also asked the Seniors vs. Crime department for assistance. The department is part of the Florida Attorney General’s Office, and the Ocala unit sent a letter to David V. Auld, the president and CEO of D.R. Horton in late August on the Stam’s behalf. On Sept. 2, a reply came from Cammy Kennedy, of the risk management and legal counsel for D.R. Horton.

The letter quoted Paragraph 11 of the sales agreement. “PURCHASER acknowledges, and confirms that neither SELLER nor any person acting by or on behalf of SELLER has made any representation or statement that Purchaser has relied on in entering into this agreement… including without limitation any statement or representations regarding… the ownership, condition, zoning, restrictions, proposed use or any possible use that may ever be applied to or imposed upon any and all vacant, developed, or undeveloped lots or real estate, ground, or properties, that are contiguous to or in the vicinity of the Property, or the subdivision of which the Property is part.”

The letter stated that the Stams were sent videos of the home and treatment plant by D.R. Horton reps and “elected to close on the home anyway.” Horton has no control over the plant, it read, and there are no construction issues to be addressed.

“D.R. Horton respectfully declines to take any further action and considers this matter closed,” the letter concluded.

Humphrey doesn’t accept Horton’s assertion that Paragraph 11 should apply to them.

“Our property is not a ‘part’ of Marion Landing,” she said. “I could see if the sewage treatment plant was in JB Ranch, but the problem is not ‘part’ of JB Ranch,” she wrote about the letter from Kennedy.

Residents hope for help

The Stams now are resigned to living with the plant. They have spent $10,000 on landscaping in their backyard, including four sizeable magnolia trees and two planting islands that will eventually grow in and, they hope, help shield them from the nuisance.

Richard Stam worked with industrial machinery before he retired, and he contends that that are insulating techniques that would cut down on the noise and buffer the smell.

Suzy Stam knows what she wants.

“The outcome we would like is for that wastewater treatment plant to be enclosed so that we don’t have loud sounds. We understand that that was here, we understand that. But Horton needs to do the right thing by us and that is to go over there and say, ‘Hey, I’m gonna pay [to enclose the machinery].’ ”

Horton also could put up a taller fence, she said, and replant the trees and shrubs on the fence line that were torn out.

She also feels the commission needs to help with the mitigation because county staff should have seen the treatment plant on the building permits and questioned why homes were being built so close to it.

“It’s just heartbreaking that the BOCC blew us off,’’ she said. “They’re our first line of defense. Do they really know how close these homes are?”

Humphrey also hopes for some sort of mitigation.

“I would like to see the plant be modernized or enclosed,” she said. “I want a reduction of noise and no smell. Smell is the most important thing right now. We’re hoping to have our wedding ceremony in the backyard.’’

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Former staff writer James Blevins contributed to this report.

It Stinks Part 2: Responses from the state and county leave residents frustrated. How to avoid this type of “buyer beware” situation. 95^th Street Holdings received approval in September 2021 for 1,081 on more homes on 313 acres in JB Ranch.  The vote was 5-0 to approve.

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