Bonita Springs City Council takes actions on Raptor Bay

Good News — This week the Bonita Springs City Council took two positive actions on the Raptor Bay development issues.

The Council voted unanimously to authorize its special counsel to file a request for declaratory judgement questioning the validity of the annexation agreement between the City and the Raptor Bay property owner (WCI) on the basis of potential contract zoning.  Also, the City extended the deadline for WCI’s application for Zoning Board approval to build four (4) 20-story towers to March, 2017.

To clarify, there are two annexation issues regarding the Raptor Bay Golf Course and WCI’s plans to build towers there.  First, there is the legality of the 2014 agreement annexing a portion of Raptor Bay into the City.  Second there is the issue of WCI building four 20-story towers on this land and annexing it into Pelican Landing – overburdening our Beach Park, tennis courts, privacy infrastructure, etc. The second annexation issue as well as opposition to dead-hand control by WCI is the essence of RBC’s pending request for a declaratory judgement.  Our PLCA annexation issue is different than and separate from the City of Bonita Springs annexation issue.

Earlier this year the City of Bonita Springs hired a special land use attorney to review the Raptor Bay annexation agreement between the City and WCI and other associated issues.  RBC has consistently argued that the annexation agreement requiring the city to make zoning changes to allow towers at Raptor Bay constitutes “contract zoning” which is illegal.  In fact, it was Ralf Brooks (RBC’s land-use attorney) who made this point and other critical points during the February 3rd, 2016 City Council meeting.  As a result, the City refused to amend the Comprehensive Plan to allow those towers and later hired independent council – otherwise those towers would be moving forward today.

As our Bonita Springs Councilwoman, Amy Quaremba, says –  “Court results are uncertain but there is room for optimism at this time.  What is certainly likely is that the time frame for hearing the current application [to build 4 20-story towers] will be delayed beyond the early Fall projection.”

RBC applauds these decisions by the City Council and is gratified that the matter will proceed to the courts for review and a final decision.

RBC’s pending suit continues to oppose WCI’s claimed arbitrary annexation and dead-hand control powers.  WCI’s recent filing to add 254 acres to Pelican Landing’s Exhibit A (Step 1 of Annexation) must be stopped.

The PLCA Board of Directors sides with WCI

In a very disturbing development, the PLCA board has just filed a motion to dismiss the RBC lawsuit, thereby siding with WCI.  This can only encourage WCI to move forward with its intent to annex more properties into Pelican Landing.

Why did the current PLCA board take this action now, only two weeks before a new board would be seated?  PLCA was cited as a nominal party in the RBC lawsuit after WCI argued before the judge that the homeowners association must be included in the case.  The PLCA board did not have to do anything at the current time. In fact RBC’s lawyers expressly told the PLCA  Attorney, Tom Hart, that a legal response to the amended complaint was not expected or required from them, but if they felt compelled to file an answer of any kind, they had an unlimited extension of time to do so.

The RBC lawsuit against WCI asks the judge to make decisions on three (3) points:

  1. Annexation rights? – RBC believes WCI can no longer annex/add properties into PLCA.
  2. Did 85% turnover happen? – RBC research shows turnover happened before the end of 2009.
  3. Is this election process that WCI unilaterally imposed on us in conformance with our documents?

Does the community want to know if RBC is right on these issues? We think so. WCI’s filing a Motion to Dismiss to RBC’s Amended Complaint. was expected – the developer has repeatedly tried to slow the legal process and run up the RBC legal expenses. But to have our community’s board take the developer’s side by attempting to silence the answers to the above questions is a shock to many residents.  Why did the current board intervene at this time?  RBC believes the current board has lost sight of its fiduciary duties and that this board action of supporting WCI is destructive to our community.

 If you have not yet voted for board candidates for the October 11th election, we once again give you the candidates WHO WILL DEFEND YOUR PROPERTY RIGHTS.

RBC Recommendations for the PLCA Board:

Community At-Large Seat No. 7 (all residents cast 1 vote for this single seat)

  1. Marvin Hancock  Longlake

Pelican Landing 4 Seats (non-Colony residents cast 4 Votes – 1 for each seats 3-6):

  1. Steve Gunther   Palm Colony
  2. Peter Kane   Bay Cedar
  3. Judy Neyhart   Ascot
  4. Jeffrey Wacksman Goldcrest

Colony 2 Seats (Colony residents cast 2 Votes – 1 for each seat):

  1. Joanne Ribble   Sorrento
  2. Robert Loos  Castella

 YOUR VOTE MATTERS – PLEASE VOTE

WCI Makes Bold Step toward Annexing Properties into PLCA

Last week WCI took action to amend our community’s Declaration (the most important of our documents, effectively “our Constitution”) by unilaterally filing a supplement adding 250+ acres of Raptor Bay Golf Course property into Exhibit A of our Declaration.

However, these new properties that WCI is trying to add are separate, unconnected properties that are outside the gates of PLCA.  They had already been removed from the Declaration in 2002.  If the amendment is allowed, WCI has asserted the right to formally annex some or all of these properties into PLCA.  The new properties include the site of WCI’s proposed 4 hi-rise towers!

What is Exhibit A?  Exhibit A is a legal description of all properties that could be made part of the PLCA governing responsibility.  It is an attachment to the Declaration.  Before WCI’s latest action, all such areas in the former Exhibit A were already part of PLCA’s governing responsibility and “within the gates”.  Phase 1 of Pelican Landing is fully built-out and The Colony has only a few areas possibly remaining to be developed.

Though you may never have heard of it before now, Exhibit A is an important part of the RBC lawsuit. This is not just a technicality – it is a huge distinction.   It is also a distinction neither of the PLCA legal opinions addressed.   In fact, PLCA’s attorney, Tom Hart, issued a very flawed opinion stating that WCI has the right to annex until December 31, 2020 but completely neglects the (“… whichever is earlier”) clause that limits annexation rights with respect to Exhibit A:

The Declaration states that when all properties listed on Exhibit A have been “subjected to the Declaration” then WCI can no longer annex property into PLCA.

Fact 1:  Once all properties listed on Exhibit A have been made subject to the Declaration, WCI can no longer unilaterally annex property into PLCA.  All properties listed on Exhibit A had been made subject to our Declaration long before this current action of WCI attempting to add 250 acres to Exhibit A.  WCI no longer has, nor has it had for some time, the right to expand exhibit A or to annex property into PLCA.

The Declaration also states that when 85% of the units in Exhibit A have been built and sold that turnover automatically occurs.

Fact 2:  85% of the total potential units that can be built on the properties listed on Exhibit A have been built and sold and this fact has been true for a long time.  That horse is out of the barn.  Turnover happened years ago and cannot be undone.  But WCI never told the PLCA board or the residents, either because of negligence or fraud.  By state law, once turnover has happened a developer can no longer unilaterally amend a homeowner’s association documents.  WCI does not have the legal power to do what it just tried to do.

These are facts, but WCI has ignored them.  WCI will get away with this effort to add property to our community if, and only if, we do not stand together to fight this legally NOW!

WCI’s recent action shows how necessary it was to file a legal action against WCI, and how fortunate we are as a community that RBC did so with the support of its hundreds of contributors and volunteers.

If you haven’t voted yet in this important board of directors election, please remember  the candidates who support RBC’s lawsuit to stop WCI from annexing additional communities into Pelican Landing:
Community At-Large Seat No. 7 (all residents cast 1 vote for this single seat)
  1. Marvin Hancock  Longlake
Pelican Landing 4 Seats (non-Colony residents cast 4 Votes – 1 for each seats 3-6):
  1. Steve Gunther   Palm Colony
  2. Peter Kane   Bay Cedar
  3. Judy Neyhart   Ascot
  4. Jeffrey Wacksman Goldcrest
Colony 2 Seats (Colony residents cast 2 Votes – 1 for each seat):
  1. Joanne Ribble   Sorrento
  2. Robert Loos  Castella
YOUR VOTE MATTERS – PLEASE VOTE

RBC AMENDS ITS COMPLAINT AGAINST WCI

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.

Exhibits to the Amended Complaint: Exhibit AExhibit B-1, Exhibit B-2 , Exhibit B-3Exhibit CExhibit DExhibit EExhibit FExhibit GExhibit H

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

FULL REPORT ON THE 7/20/16 PLCA BOARD MEETING: Two Critical Issues Need to be Highlighted

Dear RBC supporters:

At the start of the July 20, 2016 PLCA Board meeting, it was announced that minutes and recordings of this and future meetings would only contain motions and votes. Thus if you are not present at the meetings there may be no way to know what was discussed, what objections or suggestions were raised, or how voting positions were reached. Though it is clear that this meeting was recorded in full by the PLCA secretary, when we asked to copy the digital recording, PLCA provided a recording that had been altered to eliminate much of the meeting. Both of these changes are significant reversals of long practice. No reason, no debate and no clear vote were part of this change in procedure. It is particularly unfortunate that these changes came during this meeting as critical issues to us all and the future of our Association were on the table.

Fortunately, an independent recording of the entire meeting was made and a link to that recording appears below.

All owners should be informed about two critical issues summarized below:

First Critical Issue:  As most of you by now know, Manager Marie Martel has announced that she will be retiring as of mid­ February 2017. The Board has appointed a “committee” to make recommendations about finding a replacement and they are expected to report to the Board in August. Estero Councilman and Colony resident Bill Ribble spoke, encouraging the Board and committee to engage a professional search firm to find us the best option and one with “no baggage” from the past. (Of most importance to us here is that there be no connection to WCI or our current administration so that as a community we can move beyond and forward.) Ribble asked the Board if they had a position description and a list of criteria. The answer was no. He also noted he had seen no advertisement for the position. (Hear his remarks at minute 39:30 on the tape.)

ACTION: We urge you all to let the board know that you support having an independent professional search firm aid us in finding the best candidate. And, if it is decided that PLCA should be managed by an outside management firm, that you support having whomever we hire have no connection to WCI or to PLCA insiders. In other words, we want a new face with, as Ribble notes, “no baggage to the past”. 

Please send an email to or call the PLCA Board members and let your voice be heard. Their contact information is below:  

PRESIDENT:           Clyde Knowles          clydeknowles@gmail.com  (239) 390-2191
VICE PRESIDENT:  Shirley Withrington  shirley@withrington.net      (239) 221-8502
SECRETARY:          Jet Tipton                  jettipton@yahoo.com           (239) 425-5760
TREASURER:        John Tomlinson         plca4john@aol.com              (239) 949-7780

 

Second Critical Issue: With virtually no notice or time for review and study, WCI used the age­-old tactic of creating a “false sense of urgency” to force the PLCA Board to vote upon and sign a Resolution with vast implications to the future of Pelican Landing. This resolution was penned by PLCA’s attorney Tom Hart in discussions with WCI’s outside counsel (the same firm representing WCI against RBC’s challenge to the turnover plan). Last minute negotiations then occurred between Attorney Hart and WCI VP, Paul Erhardt, the night before the board meeting (which was just hours after that same morning’s court hearing/argument in RBC v WCI). This resolution was dropped on the Board sometime after 7 PM ­­ for the next day’s board meeting! None of us present had seen it. No one knew its contents or implications. Basically, WCI demanded a unanimous vote of the Board to support the resolution and they wanted it by Friday, July 22 … or else … WCI would not “fix” the incredibly convoluted and incomprehensible Board election process mandated in their late May “Turnover filing”. Note: This filing includes a claim that WCI can annex/add any properties it wants into PLCA and that WCI can create two additional Board seats post turnover for these newly annexed properties.

RBC is challenging WCI’s mandated turnover design as being in contravention of the design our Declaration requires for a post turnover Board; RBC is challenging WCI’s claims that it can annex/add properties into Pelican Landing and; RBC is challenging WCI’s claim that it can exercise control of our documents post Turnover.

You will see by listening to the excerpts identified below that residents voiced huge concern that this resolution was an effort to force the board to vote on the record in support of WCI’s turnover plan including annexation and adding more board seats.

Despite the many concerns expressed by Board member John Tomlinson and many of those present, three members of the Board, with Hart’s apparent urging, voted in favor of the resolution. Click this link to read the resolution 7/20/16 PLCA BOARD RESOLUTION

To listen to the discussion on this, click on the link below and fast forward:

CLICK HERE TO ACCESS THE RECORDING

  • Clyde Knowles explaining the resolution (beginning at minute 43:18)
  • The resolution no one had seen was read aloud (beginning at 51:00)
  • Attorney Hart’s explanation (beginning at 55:54)
  • John Tomlinson voiced multiple concerns (beginning at hour 1:00)
  • RBC President Bob Loos (retired attorney) voiced concerns about the WCI trap/set­up and their demand to sign this resolution (beginning at 1:01:20).
  • Anne Cramer’s remarks (beginning at 1:04). Including Hart’s defense of the so­-called commercial “at large seat” in the WCI plan.
  • Bill Ribble’s recommendation to table this resolution and make sure we know what we are doing (at 1:09)
  • Barb Craig’s comments urging caution, more discussion, more consideration and noting this looks very much like a WCI effort to pull the Board in as a party to the RBC law case. (at 1:10:25)
  • Ben Korbly raising various issues (at 1:12).
  • Attorney Hart defending WCI’s demand for the Board to vote for the resolution (at 1:17)
  • Board member John Tomlinson on why he will not vote for the resolution (beginning at 1hour: 19.49 and again at 1 hour: 30 min)
  • Board President Clyde Knowles voiced “trust in Hart” at 1:32:25). BUT NOTE: Hart had not provided the BOD with a written opinion nor did he provide a clear oral opinion during this meeting on what the Board should do and why).

Following this discussion, the resolution passes 3­ to 1. Hart notes for the record that even though it is not unanimous, as WCI demanded, the motion passed.

Finally, several important comments were shared during the Open Forum:

  • Attorney Hart explained that the marina purchase gave WCI 200 “beach use rights” for the “Raptor Bay Properties” and admitted that this give­away includes the  Weeks Property. (at 1:44:51)
  • Bob Loos asked to have a copy of the engagement letter with outside counsel and the Board admitted there is no such agreement. They also admitted that as yet the board has no legal opinion from the outside counsel but claimed they will have an opinion in writing from Hart and the outside counsel in mid­ August. (At 1:50:00)

From there to end of tape (about 10 min) many questions raised about various turnover issues.

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

Recap of Raptor Bay Informational Meeting and link to view presentation

The following is a short report on the recent public meeting that WCI was required by law to hold to inform Bonita and Estero residents of their proposal to build four  22 story towers in Raptor Bay. Hundreds of concerned local residents from multiple communities packed the house. (newsclips previously provided see posts below). Please note we await receipt of WCI’s summary of the meeting.

Suffice it to say, despite the meeting title, very little information was provided in the surprisingly brief slide presentation.  The maps presented were on a distant screen and even when attendees asked specific questions, the WCI representative from Grady Minor Engineering did not expand the map nor did he provide clear responses.  Text documents projected on the screen were unreadable.  The goal seemed not to inform, but to obfuscate.  No printed information or copies of the maps and diagrams projected were provided to the attendees.

As requested by attendees unable to view from afar – WCI’s engineering firm provided the presentation click here: 6 27 2016 Public Information Meeting for Pelican Landing PD

When the question period arrived, not one person spoke in favor of the proposed plan. Pelican Landing and surrounding communities were very well represented at the meeting.  West Bay’s Owners Association President spoke in opposition to the plan, as did concerned homeowners from Meadowbrook, Coconut Shores, Eldorado Acres, and Spring Creek Village.  Everyone that stood up and spoke should be commended. This was an opportunity to stand up and be counted.

About fourteen questioners asked whether or not Raptor Bay, and its subsequent towers will be annexed/added into Pelican Landing, and/or if WCI planned to include the Pelican Landing Beach Park and our other amenities in the marketing materials for the sale of the proposed towers. Each and every time the question was asked regarding Amenities and Annexation — the answer was inexact or Wayne Arnold of Grady Minor Engineering said they “had not gotten that far in their planning and design”.  At no time did any executive or employee from WCI speak during the presentation or respond to any of the questions posed.

While PLCA President, Clyde Knowles, and Vice President, Shirley Withrington. were both present neither Clyde or Shirley spoke in favor of or in opposition to the Raptor Bay application.

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RAPTOR BAY REZONING & TOWER THREAT IS BACK: YOU ARE NEEDED!

Raptor Bay Public Information Meeting
Monday, June 27, 2016 at 5:30 p.m.
at the Living Waters Church, 22100 S. Tamiami Trail, Estero, FL 33928

 WCI is back once again with a revised application to build four 20-story towers over 2 stories of parking (200+ feet tall) etc.  WCI is now trying to accomplish this under the Lee County Plan after their application was rejected using the regulations of Bonita Springs earlier this year. This is a dramatic deviation from the current zoning limit of 75 feet for maximum height.

There will be no need to provide expert testimony at this “informational” meeting, however you may wish to listen and say nothing … or listen and indicate your objection to the nature of this development.

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