RBC Responds to WCI Turnover Proposal to PLCA

To: The Board of Directors of the Pelican Landing Community Association, Inc.

Re: The PLCA Board’s May 12, 2016 Turnover Communication #19 supporting WCI’s turnover mandate

From: RESIDENTS FOR A BETTER COMMUNITY

The following correspondence, as sent to all Board members, was presented  by RBC spokesperson Dr. Craig at the PLCA BOARD MEETING, MAY, 18, 2016

As a Director of the Pelican Landing resident organization, Residents for a Better Community (RBC), I am responding to Turnover Communication #19 which the PLCA Board sent to all residents on May 12, 2016. In this Communication, the Board presented and supported the newest WCI-mandated post-turnover board design. Residents were informed by this Communication, sent after the vast majority of residents had already left for the summer, that WCI has filed official notice in the public record that it is proceeding with its so-called “voluntary” turnover and scheduling elections for this post-turnover Board for October 11, 2016 well before most residents will have returned south. Such “timing” does not pass even the most basic olfactory test of fairness.

The Board design that WCI is mandating, and that the PLCA Board has endorsed, does not meet the requirements of Chapter III, Section 3.3 (b) of the PLCA Declaration which requires that the post turnover Board be based on neighborhood voting groups unless 100% of the Voting Representatives agree to an alternative design.

More importantly, the provisions in the WCI proposal purporting to allow WCI to increase the Board size post-turnover and claiming that WCI has a “right to annex” property into PLCA violate Florida State Law (720.3075) and violate clear prohibitions of the 2001 Settlement Agreement (recorded as Amendment 75 to the Declaration) which state that Declarant may not make changes that would “materially adversely affect the rights granted” in the Settlement Agreement.

RBC wishes to put the PLCA Board on notice that it is now amending its legal case (RBC v. WCI) to include a challenge to WCI’s mandated turnover Board design and claimed rights to exercise “dead hand control” post turnover.

We wish to also assure PLCA owners that, with their continued support, RBC will press on in court. Failure to do so, would allow WCI to ignore its own documents and to violate state law intended to put restraints on developers post-turnover.

Abdication of this fight would be detrimental to the property rights of us all as promised to us when we purchased here. A promise memorialized in our documents: most especially in the Declaration and in the agreements set forth in that 2001 Settlement Agreement. In reality, virtually all conditions of legal turnover happened in 2001. That is all conditions but for one–WCI’s ability to continue to exercise dead hand control. Then, as now, this was contrary to existing Florida Law, harmful to PLCA owners and gave WCI over a decade and a half to exercise control without responsibility and in contravention of State Law. We cannot allow another “turnover” to be accomplished without insisting that the law and documents be followed!

The role of the PLCA Board is to represent the interests of the property owners of the Association. It is hard for me, and many others, to fathom how the Board imagines it is performing this fiduciary duty by publicly supporting WCI’s claim that it has unilateral annexation and amendment powers post turnover in light of the clarity of state law and the protections provided to PLCA owners in the 2001 Settlement Agreement. At least 3 of the members of this current Board have publicly stated, in my hearing, that they oppose annexation. None of you can hold onto that claim in light of Turnover Communication #19 that you sent to the community.

I would suggest that a far more useful strategy for this Board would have been to vote to support the RBC in its legal action to fight annexation rather than embrace what you profess to oppose. RBC would welcome your support in the future if, on further consideration, you truly do oppose annexation and dead hand control. To that end, I would suggest that the Board would be wise to seek a second independent legal opinion with regard to WCI’s latest efforts to continue its “dead hand’ control of Pelican Landing- a clear violation of Florida Law–much as the Bonita Springs Council is doing in regards to the Raptor Bay Towers issue.

Cordially yours,

Barbara Hinskon Craig, Director RBC
Robert Loos, President RBC
Bruce Finnie, V.P. RBC

UOC/CRC Voting Reps Votes Against WCI Proposal

After receipt of the PLCA  Turnover Communication #19, the Unit Owners Committee (UOC) and Colony Residents Committee (CRC) Voting Reps were polled on May 16th whether they approve or disapprove the significant changes to our Governing Documents with the post-turnover plan created by WCI. With 76% of the 51 Voting Reps responding, 25 voted Against the proposal, 7 voted In Favor and  7 Abstained. Note that of the 51 UOC Reps, one is the Hyatt, one is the Timeshares, two are Golf Clubs, one is Cielo with no representation and one is Altaira also without representation.

Here is a link to the letter to the UOC/CRC Voting Reps

Steve Gunther, the Palm Colony UOC Voting Rep, as well as others, provided feedback directly from Residents to back up his vote “Against” the WCI proposal. Significantly, in their words, there was a clear call from residents that “the PLCA board should join the RBC in resolving the issues with WCI. Otherwise it appears that the board is representing WCI’s interest at the expense of their constituents, i.e. the residents and owners.” 

Here is a link to the Palm Colony input

WCI Responds to RBC Lawsuit 

WCI has finally responded to RBC’s complaint and, as expected, it has chosen not to answer the allegations made in the complaint but rather make a motion to dismiss the complaint. In fact, in a footnote WCI has hinted that it has more motions to make if this one fails.  This tactic in legal circles is called “motion practice” and is used to try to avoid the substantive issues, delay the ultimate outcome of a case and cause unnecessary excessive legal fees for an opponent.

RBC has met with its attorneys and has been reassured that nothing WCI has asserted will ultimately deny RBC from having a decision on this matter. As our attorneys have noted, the stakes are high for WCI. If the legal action is carried to completion, this could be the first reported case where homeowners are employing the legal protections that Florida has provided homeowners against the actions of predatory developers. While Pelican Landing is not the only victim of this type of predatory behavior by developers, the reason for the lack of reported cases is most likely that no one individual has the stamina and financial wherewithal to fight a developer.

RBC has the stamina, and, with the financial support it has already received from over 300 residents and your continued support, RBC has the resources to successfully stop WCI’s predatory actions against Pelican Landing homeowners. A significant amount of the legal and land use research work continues to be done pro bono by your RBC Team. Our attorneys have also given RBC a reduced not-for-profit rate.

For those who have already contributed, RBC thanks you.  For those who have not and for those who can give more, we ask for your support because this will not only be a long hot summer for our lawsuit but also for another attempted land use change for Raptor Bay similar to the February 3rd attempt at the Bonita Springs Council meeting. (see below for more information.)

With your continued financial support we are confident of a successful outcome for all PLCA homeowners. Thank you again for your continued support.
Your RBC Board

Bob Loos, president
Bruce Fennie
Barbara Craig

Directors of Residents For A Better Community Inc.

RBC Fundraising Campaign Continues
The legal fight to maintain the viability of our community requires money and expertise. We have hired Richard DeBoest to represent us in this challenge but need your contributions to pay for it. Please send your check made out to “Goede, Adamczyk Trust Account” (with “RBC” on the memo line) to

Richard DeBoest, Esq
2030 McGregor Blvd
Ft. Myers, FL 33901

Please include your name, email and home address on a separate piece of paper.
All contributions will remain anonymous and any funds not used will be returned pro rata. Thank you for your support!

Why funds are needed

 

WCI’s Latest Plans for Raptor Bay

RBC has confirmed with Jay Sweet of Bonita Springs Community Development that a new application for Raptor Bay was filed by WCI (aka PLGolf Course Ventures, Inc.) on April 8th, 2016. The application is asking that the Raptor Bay development be reviewed, amended and processed under the current Lee County zoning and comprehensive plan rather than the Bonita Springs zoning and Comprehensive Plan.

The city has not even started their formal review process but Jay guesses the earliest it could appear on the Planning Zone agenda would be in June and possibly not until July….he said he could let us know more precisely after 5/5.
It is important to note that the WCI quest for development is active again and that means annexation is still a real threat.

Estero Traffic Study: Coconut Road Will Fail in 5 Years

Norman Trebilcock, Trebilcock Consulting Solutions, conducted a 3 ½ mile traffic study of Coconut Road from Estero Bay east to Three Oaks Parkway.  The study was conducted during peak season, February 2016, and at peak morning and evening times.

This study examined existing and future conditions of the roadway, which is located in the Village of Estero, Bonita Springs and unincorporated Lee County.  This road is under the jurisdiction and maintenance of Lee County, and the 2035 and 2040 Metropolitan Planning Organization’s (MPO) Long Range Transportation Plan indicates existing road conditions will remain as they are, i.e., no improvements are planned.

While the road currently operates at a satisfactory level of service, the section of Coconut Road west of US 41 is projected to fail in 5 years as developments are completed.

The study recommended several options for improvements to the road west of US 41 which included 4-laning the road at a cost of over $6 million or creating a series of roundabouts at a cost of over $2 million.  It also recommended working with the City of Bonita Springs, Lee County, the Lee County MPO and developers to identify appropriate funding sources for the necessary improvements.

See Presentation 

RBC Response to WCI Letter on Weeks Fish Camp

We have asked the PLCA Board to share the following communication with the entire community which we remain hopeful they will do.  However, we think it important to promptly inform those of you who are supporting RBC’s effort to legally challenge WCI’s claim that it can unilaterally annex properties into PLCA with beach rights. Here is RBC ‘s response to the Board’s comments and interpretation regarding WCI’s letter. Click here to see the letters.  We hope that the the PLCA Board will send this out to all PLCA members.

April 5, 2016

Dear PLCA Members,

As the president of Residents For A Better Community (“RBC”), I want to thank the PLCA Board for allowing RBC to respond to the email recently sent to you by the PLCA Board.  The Board made certain statements regarding positions taken by RBC as well as comments on an attached letter from WCI regarding WCI’s right of first refusal for the Weeks Fish Camp (the “WCI Weeks Letter”). The PLCA email ends by stating that “hopefully this clears up some confusion and concerns by residents”.

It is the opinion of the RBC that neither the PLCA email nor the WCI Weeks Letter accurately sets forth the facts and both have made wrong conclusions regarding the facts. Below are the simple facts which RBC has been presenting to PLCA members.

1.    WCI has stated that it has certain rights to annex property into Pelican Landing and that these rights arise from Article VIII of the Restated Declaration. Complete text of Article VIII

2.    The PLCA Board, in Turnover #15, confirmed that WCI was unwilling to give up its claimed “annexation rights” under Article VIII.  The PLCA Board did not and will not challenge WCI’s annexation claims and in fact told PLCA residents that they “must accept these facts”.

3.    Article VIII provides, among other things, that WCI, as Declarant, can unilaterally annex any property into Pelican Landing, can give such annexation right to another developer and therefore WCI can transfer to another property owner the right of annexation.

4.    RBC has rejected the position of the PLCA Board that we must accept that WCI has these unilateral annexation rights and has commenced a lawsuit which asserts, among other things, that WCI has no such annexation rights based upon, among other things, written agreements that WCI previously entered into with PLCA, the interpretation of the provisions of such Article VIII as well as certain Florida Statutes.

5.    The WCI Weeks Letter does not state WCI has renounced its alleged annexation rights or in any way changed its position regarding Article VIII.

6.    With regard to the Weeks Fish Camp and any alleged confusion about any RBC statements, RBC has consistently merely repeated the statement made at the WCI Town Hall meetings by WCI’s representative which is that WCI has an “option” on the Weeks Fish Camp. In fact, the current president of PLCA also mentioned such an “option” at the” meet the candidates” meeting and at the last UOC meeting. I have repeatedly asked PLCA’s president and attorney for information regarding such “option” and was told they have no information.

7.    In connection with the WCI Weeks Letter, whether WCI (1) has or had a “right of first refusal” for all or part of Weeks, (2) has now cancelled such right, and/or (3) has or had an “option” regarding Weeks, any such right or option is totally irrelevant with respect to any of WCI’s claimed annexation rights for the Weeks Fish Camp into Pelican Landing.  This is so even if WCI has no direct or indirect ownership interest at all in the Weeks Fish Camp because WCI could claim that according to the provisions of Article VIII (if enforceable), WCI has the right to transfer such rights of annexation to another developer.

8.    With respect to PLCA Board’s unequivocal statement in its email that “[A]ny other developer that purchases and develops the property (i.e. the Weeks Fish Camp) will NOT have any right to annex into Pelican Landing” is misleading because, as set forth above, WCI can claim that it has the right to give (sell) such right to a developer of the Weeks Fish Camp if in fact the provisions of Article VIII were to be enforceable.

9.    Having the right to our private island Beach Park and the launches which take people to our beach is a valuable asset which WCI and any other developer would greatly desire.

10. Finally, RBC has never stated what, if any, interest WCI has in any of the Weeks Fish Camp; rather RBC has been trying to find out if there is any connection that WCI has with respect to the Weeks Property.

What, however, is VERY DISTURBING in connection with the Weeks Fish Camp is a document recently discovered by RBC. Click here to see document  This “Restrictive Covenant Agreement” was recorded in the Lee County land records on October 29, 2014 (this interestingly is about the same time as WCI’s annexation agreement with the City of Bonita Springs) and signed by Paul Erhardt for WCI and Larry McPherson, as president of PLCA (and witnessed by the PLCA general manager and notarized by the PLCA assistant manager). This document states that the 200 so-called beach rights given by PLCA to WCI in the marina transaction apply to the “Raptor Bay Properties” as described on Exhibit A.  Unbelievably, however, Exhibit A does not include only the Raptor Bay golf course property, but it also includes a map and description of the WEEKS FISH CAMP, thereby giving these Beach Park rights to the owner of the Weeks Fish Camp. Click here to see Weeks Fish Camp in Raptor Bay Property Covenant

RBC has no information as to why Weeks Fish Camp has been included by WCI as the beneficiary of part of the 200 beach rights or why the PLCA president would have signed such a document giving such rights. It should also be noted that RBC has not found any minutes of any PLCA Board meeting authorizing execution of this document AND this document is missing on the list of the governing documents on the PLCA website.

There should be no confusion.  Our Beach Park is a valuable asset for WCI and would be for any other developer, including that of the Weeks Fish Camp.  Further, make no mistake the PLCA Board will not stop WCI.  The ONLY group of residents that is standing up to fight WCI and preventing any annexation into PLCA (and the use of our Beach Park by outsiders) IS RBC.

PLEASE VISIT OUR WEBSTE AT pelicanlandingblog.com (or google Residents for a Better Community) and find out more about the RBC and how to contribute to our legal fund.

Thank you for taking the time to read my message and know that there is nothing confusing about the very real dispute with WCI.

Robert T. Loos, President of Residents For A Better Community Inc.

Regarding Turnover:

In its January letter to the PLCA Board, WCI stated it wanted the Unit Owners Committee (“UOC”) and Colony Residents Council (“CRC”) input on formulating the make-up of the new board at Turnover. WCI has now refused to meet with representatives from the UOC and CRC to discuss the joint UOC/CRC proposal, stating it would not be appropriate.  Nonetheless, at some time in the our future, there will be a turnover election whereby this board resigns and a new expanded board will be elected by the members.  We encourage all residents to become involved.