Sent: Thursday, May 16, 2013 9:38 AM
Cc: firstname.lastname@example.org; email@example.com; firstname.lastname@example.org; email@example.com
Subject: Beach Renourishment Project
Questions about Beach Renourishment Project:
It was instructive to learn all about groins and beach erosion at last month’s community meeting. The engineering presentation was excellent. Also, it was nice to hear representatives (although they did not appear to be executive officers) from the Regency Hyatt and the Hyatt Timeshares orally profess their 100% commitment to the project, however they defined the scope of their commitment.
The presentation and the very limited question/answer period left many questions unasked and unanswered, including the following:
1. Each time our relationship with Hyatt and/or Timeshare has been significantly modified there has been a written supplement to the Declaration and General Protective Covenants for Pelican Landing. These governing documents have been amended and supplemented many times. The 68th and 73rd supplements deal with certain rights and obligations of PLCA and Hyatt and Timeshares regarding our beach. Our present written agreements with Hyatt and Timeshares (Supplements 68 and 73) are highly ambiguous, particularly as they pertain to responsibility for the sharing of beach related capital expenditures. Therefore, when it came time to construct the pavilion and other improvements on the beach, a written supplement to our governing documents was signed by the parties. The supplement avoided the ambiguity over shared beach (capital) expenses by locking Hyatt, et al into responsibility for their prorata share of the construction costs, which were relatively minor expenses compared to the beach renourishment project. Has Hyatt or the Timeshares committed by written agreement that the construction, modification, repair, removal and ongoing related expenses of this project (including potential damages expenses) are expenditures that will remain their continuing responsibility to share under the existing written agreements with PLCA?
2. Since the permit and submerged land lease/easement are apparently exclusively in PLCA’s name, as the applicant and property owner, will our “partners” Hyatt and Timeshare join us in the ongoing costs and responsibilities under those documents through a written, legally binding agreement with the written approval of their governing bodies? If they do join in the initial and ongoing costs, can they terminate their obligations at any time by withdrawing from the beach agreements?
3. According to our engineers, we have a potential claim against Bonita Springs for damage to our portion of Big Hickory Island resulting from the groin project at the north end of Little Hickory Island, but we have decided not to pursue that claim at this point in time. (I don’t disagree with that decision, but at what time does inaction become a waiver of rights?) Since our project is specifically designed to interrupt the flow of sand northward to the land at the northern end of our island owned by Lee County, as well as to Lovers Key State Park, will PLCA be potentially responsible for damages to those beaches? What is our monetary exposure? Is this an insurable liability? Are the physical structures (7 groins) going to be insured under our property coverage to cover property loss and other liability issues?
4. A question was asked at the meeting, but not adequately answered, about the implications of becoming a public beach. Just what will the public’s rights be? The right to transportation to the beach? The right to use the bathroom and other facilities? Is the right limited to the portion of the beach seaward of the mean high water line, or does it include the upland beach, dunes and island? Does it include the right to use the umbrellas and other equipment? Are these rights specified in any proposed or existing document?
5. At the previous public meeting on this subject, Mr. Duder promised that once PLCA received the written submerged land lease/easement, it would be reviewed to see what additional obligations are imposed before PLCA proceeds with this project. Has that document been received and reviewed? What does it say? Will that document be made available to property owners for inspection?
6. Is the original $3 million budget likely to hold true after years of delay? How much in reserves do we presently have earmarked for this project? Under which reserve category?
7. What are the projected ongoing costs of monitoring, mitigation and sand renourishment, and do we have funds to pay those costs or will those costs be paid out of current revenues from property owners?
On a more fundamental level, I understand that the property owners at Pelican Landing have never been given the right to vote on this issue — either the project itself or the assessments that included the anticipated costs of this project. Rather than provide for a special assessment (which would have required owner approval), the funds were raised over several years through an increase in the annual assessments. That raises the following legal questions:
A. Should the funds raised and reserved for this project have been obtained through a special assessment that by law requires a homeowner vote?
B. Is it legal under Florida HOA laws for Board of Directors to avoid the legal requirement for a favorable homeowner vote supporting a special assessment for a specific capital project by raising and reserving the funds through a series of temporary, increased general assessments?
C. Does the board have the legal authority to convey PLCA common area property interests in the beach to the State without obtaining owner approval?
D. Does the Board have the legal authority to make capital expenditures to purchase and refurbish and repair the marina property as common area without obtaining owner approval?
E. Can the PLCA legally force residents to pay for, maintain, and accept the liability for property that does not belong to us (i.e., the public beach)?
F. Can the PLCA force the members to take on the liability of having to pay damages and/or remediation costs cause to other nearby beaches resulting from the groins?
G. Do Realtors need to disclose to potential buyers that there may be future liabilities due to the beach permit requirements and that future owners will be paying yearly to maintain and continue to renourish a State Beach?
Legalities aside, is it sound governance for fundamental changes to be made in common areas, including significant purchases and divestments of property held for common area use, and significant liabilities incurred, not to mention to raise earmarked funds, all without any vote of the homeowners? And all without any disclosure of the existence of the above questions (not to mention answers)? How many of us, if we were members of the Board of Directors of PLCA, would have been willing to proceed without disclosure and without any vote?