Yesterday, August 22, 2016, RBC filed an Amended Complaint to its case against WCI. We hope you will read this complaint so that you may better understand our actions (see the link to the Complaint at the end)).
At our hearing last month before Judge Rosman, WCI’s lawyers argued strenuously that the Pelican Landing Community Association (PLCA) must be made a party to this lawsuit. RBC’s original complaint specifically left out the Community Association because all of our claims are against WCI. We contend that WCI can no longer: (1) annex/add more properties into Pelican Landing, (2) continue developer dead-hand control of our documents after turnover and (3) that turnover was actually reached before the end of 2009. As a procedural matter, Judge Rosman “dismissed” our initial complaint without prejudice and gave us 20 days to amend it.
Because of WCI’s insistence that PLCA be joined in this action, PLCA is now named in the complaint as a nominal party. To clarify rumors, please understand that the only party RBC is seeking any remedy or cause of action against is WCI. The PLCA board of directors can choose to participate to defend your rights – as we hope they do — or the PLCA Board can sit on the sidelines and have their attorney simply review the court filings as they are received. (see complaint paragraphs 7-8)
We are suing WCI because we believe their right to annex/add properties to PLCA expired years ago. However, if anyone has doubts as to WCI’s intentions, note WCI’s turnover filing where they claim they can amend our documents in the future to annex more properties into PLCA and add two extra seats to the board for that expansion (find a link to WCI 7/22/16 Bylaws Amendment page 10 and PLCA Turnover Communication #20 at the end). And they also have stated that the trademark of Pelican Landing is to be leased to us, not turned over immediately upon turnover. And, of course, most residents are aware of WCI’s pending application before the Bonita Springs City Council to build 4 hi-rise towers in Raptor Bay. That application states the new development would have full beach rights, overloading our private beach and our other amenities. WCI has also claimed they can annex/add Raptor Bay into PLCA. (see complaint paragraphs 37-38, 50-56)
We are suing to stop dead hand control – WCI contends it can control our documents until 2020 and veto any changes our new board might make. We contend that per our documents, dead-hand control ceased when WCI reached the 85% build-out of PLCA. (see complaint paragraphs 19-21, 32, 37-38)
We are suing WCI to clarify that the turnover percentage of 85% of properties in Exhibit A — which is needed for us homeowners to take control of Pelican Landing — happened before the end of 2009. Because turnover occurred before Cielo, Terzetto, and Altaira were built, WCI is responsible for the assessments/reserves for these units and perhaps more. (see complaint paragraphs 16-18, 29, 44-45)
As to any claim that adding PLCA as a nominal party in the lawsuit will cost us PLCA homeowners lots of money in legal fees, that is false. There was even a rumor of a possible special assessment for legal fees. But since no allegations of any kind are made against PLCA, there are no claims to defend and the board need not participate.
Recent legal opinions sent to residents by the PLCA Board of Directors fail to address the fact that the document that is controlling the determination of the 85% Turnover Trigger, Dead-Hand Control and Annexation is Exhibit A to the Declaration, not the DRI. The opinions also fail to recognize that the 75th Amendment (the 2001 Settlement Agreement) was made three years after a Florida law was passed that forbade dead-hand control provisions in any HOA documents.
We hope this helps clarify many of the misconceptions and the inevitable variations of rumors that have spread.
Please click here to read the entirety of RBC’s Amended Complaint filed 8/22/2016.
Please click here to read WCI’s 7/22/16 Amendment to our Bylaws
Please click here to read the PLCA Turnover Communication #20.
We thank the hundreds of you who have joined with us to protect our community and make sure the laws of Florida are followed.
Barbara Craig, Bruce Fennie, Bob Loos
RBC Officers and Pelican Landing Residents