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

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

The Pelican Landing Development Numbers Relating to Turnover

The Pelican Landing Development Numbers Relating to Turnover
Scenario 1 vs. Actual Numbers

Scenario 1: WCI and PLCA President McPherson Development Numbers:

In November 2014, President Larry McPherson presented development numbers to the community. He has stated that WCI provided him with the development numbers that he utilized. Neither Mr. McPherson nor the PLCA Board attorney has independently verified this data. In fact, the PLCA Board attorney and the Board Task Force on Turnover have discussed their concern over the implications if the 85% Turnover threshold has already occurred, but have not transmitted those concerns to the community. Here are the numbers, as of 11/4/2014, presented by President McPherson:

UNIT NUMBERS:

  1. Pelican Landing DRI at 3,912 units
  2. Spring Creek DRI at 800 units
  3. Total DRI Entitled/Permitted Units: at 4,712 units

     LESS:

  1. Tides/Colony Villa Apartments at 350 units
  2. Coconut Plantation Timeshare at 362 units
  3. Raptor Bay-WCI residential at 200 units
  4. Total Non PLCA Units at 912 units

NET: Net Entitled-Permitted Units at 3,800 units.

  • Total Number of Closed (Non-WCI) Units at 3,120 units.
  • Balance to sell to reach 85%: 110 units
  • Balance of units to sell in existing communities:

Terzetto 29       Cielo 41     Ponza 13            Subtotal: 83

         Conclusion: Need to sell an additional 27 units in Altaira, the proposed tower, to                    reach 85%.

These numbers assume that as of 11/4/2014 there were 680 residential units remaining to be developed within Pelican Landing in order to get from 3,120 to 3,800 (100%). According to the presentation, these 680 units are comprised of the 83 units then remaining in Terzetto, Cielo and Ponza and 76 units remaining in the recently announced Altaira, leaving 521 units remaining to get to 100%. WCI has proposed two additional towers in The Colony: a maximum 124 units remaining in Parcel M tower and 116 units remaining in Parcel N tower (total 240). That leaves 281 residential units unaccounted for. Despite requests submitted to our manager, our Board and WCI, nobody has provided advice as to where in Pelican Landing these units can be built!

AN ACTUAL CALCULATION OF THE DEVELOPMENT NUMBERS:

It appears that WCI and President McPherson are relying on development numbers created by the then developer over two decades ago when the Pelican Landing DRI was in its early planning stages. At that time the developer utilized hypothetical development numbers when applying for DRI approval. These original numbers were purely best case and speculative, and had little relationship to what could actually be built on the land. Mr. McPherson’s (WCI’s?) use of “entitled” and “permitted”” is quite misleading. Only after determining environmental, zoning and other land use restrictions, geological, marketing and numerous other development constraints could the actual, full, real build out numbers be determined. As the current Florida Statute 720.307(1)(a) states, it is “the parcels in all phases of the community that will ultimately be operated by the homeowners’ association” that is critical in determining the denominator of the development fraction. In the case of Pelican Landing, the actual number is far less than originally speculated by Westinghouse back in the late 1980s and early 1990s. In fact, because Pelican Landing is now almost fully developed, we now have certainty about the maximum development number, not speculation from 25 years ago.

Also, WCI has utilized 3,912, not 4,712, as the full “authorized” build out in Pelican Landing in repeated filings with Lee County. In filing after filing with the County that’s the number adopted by WCI. That 3,912 number, which itself is a fiction as explained above, has now been artificially increased by 800 units by adding the Spring Creek West area that was annexed to the Pelican Landing DRI in about 1995. It appears that after the Spring Creek West annexation, WCI did not add the 800 units within the Spring Creek West development to the full build out 3,912 units until now, when it has been added solely to create doubt and confusion about the attainment of the 85% turnover threshold.

IN REALITY THE DEVELOPMENT NUMBERS APPEAR TO BE AS FOLLOWS

AS OF 11/4/2014

UNIT NUMBERS:  Total closed units 3,120. Phase I (Pelican Landing excluding The Colony) is fully built out at 2,201 (less than a handful of vacant lots remain).

There were 83 units remaining in Terzetto, Cielo and Ponza, 76 units remaining in Altaira, and a maximum 124 units remaining in Parcel M tower and 116 units remaining in Parcel N tower (although WCI has repeatedly stated that those tower maximums are not likely to be attained).

CONCLUSION: Therefore, the remaining maximum units total 399, assuming that the maximum tower M and N units will be built. With 3,120 units completed, plus 399 units remaining, the full, 100% build out equals 3,519, not 3,800, and not 3,912. It appears that the real development fraction is 3,120/3,519 = 88.66% actual build out as of 11/4/2014, without even considering sales in the past 2 months.

The only remaining question is when the 85% threshold was actually met, thereby triggering automatic turnover. Was it met prior to the Marina deal? Prior to other actions by a 5 member Board that had no jurisdiction or power following Turnover?

WCI’s SEC Filings:

Also, WCI’s data in its 10-K filing as of 12/31/2013 could be utilized. In that filing WCI stated that 518 units remained to be developed in The Colony (without considering the units sold in the first 9 months of 2014). Changing the completed development fraction to use 3,120 as the numerator and 3,120 + 518 as the denominator (3,638) creates a fraction of 3120/3638, or 85.76%.

PLCA Give-Away of Beach and Shuttle rights to 200 future Residential Units at RAPTOR BAY

  A Short History of the Beach Park Giveaway

9/13/2012 – Letter of Intent (“LOI”):

This is the date of the Marina purchase non-binding letter of intent, which was the basis of the community meeting in the Fall of 2012. The LOI provided that as part of the consideration for the purchase of the Marina, PLCA would provide access to the Beach Park for up to 200 “single family units” that would be built on the property known as “Raptor Bay”. Those units would have the same access rights to the Beach Park as members of PLCA. Each such unit would pay its prorata share of costs for the operation, maintenance and capital [improvements] for the Beach Park, Marina and Shuttle boat transport system.

The LOI also called for a covenant by WCI that it would “decrease by 200 the total number of units which it might otherwise be entitled to subject to membership [in PLCA]” so that there will be “no net increase in the total number of units owners who will ultimately have PLCA Beach privileges (“WCI Covenant”). At the time (and presently), WCI only had remaining building lots in The Colony.

There were many objections to the Beach Park giveaway, including those objecting to the sales pitch that these 200 units were units that WCI would “transfer” to Raptor Bay from The Colony. In fact, these 200 units were never actually going to be built at the Colony. These 200 units were just like the phantom and fictitious units that WCI is now using to attempt to justify its position that the 85% development threshold for turnover has not yet been met. The PLCA Board bought those WCI figures then and now without independent investigation and due diligence. We were fleeced.

The LOI was never brought to the UOC and there was no UOC or other public vetting of the LOI.

In January 2015 Larry McPherson stated to the UOC Turnover Study Group that it was his idea to give WCI the Beach Park rights described in this summary.

 10/17/2012 – Purchase and Sale Agreement (“Contract”):

This is the date of the actual Contract that was prepared and signed by PLCA and WCI. The deal closed in December 2012. In section 17 of the Contract, the 200 units were defined as “Raptor Bay Units”, but they were no longer located only in the property known as Raptor Bay. The rights given to WCI were changed and enlarged so that these 200 units with Beach Park access on our PLCA Shuttle boats could be located in Raptor Bay, at the Timeshares property or at any other property in close proximity to these properties which WCI could acquire in the future. In addition, they were no longer limited to “single family units”! Instead, they were now labeled “residential units”.

In the Contract, WCI agreed that it would “decrease by the total number of Raptor Bay Units, the total number of units which Seller [WCI] might otherwise be entitled to subject to membership in the PLCA, such that there will be no net increase in the total number of units owners in the Pelican Landing community that will ultimately have access or use rights to the Beach Park.” (emphasis added) The Contract called for a Beach Park Covenant to be prepared and recorded at the title closing reflecting these agreements.

There was never any UOC vetting of the Contract and no general public disclosure of the actual terms and conditions of either, even at any Board meeting. The PLCA held two meetings regarding the Marina purchase. The first “Special Meeting of the Board” was held on October 3, 2012, after the LOI was signed but before the Contract was prepared and signed. The notification to residents was sent out in an email blast on 9/27/2012, giving residents only 6 days’ notice on the subject. The follow-up Board meeting of December 3rd, toward the end of the 60 day due diligence period called for under the Contract, was identified as the time when the Board would make its final decision on moving forward. At the December 4, 2012 meeting the PLCA Board voted unanimously to purchase the Marina. The deal closed on December 19th.

10/29/2014 – Restrictive Covenant Agreement (“Covenant”):

When the Covenant was finally executed and recorded as a post-closing item in October 2014, again without any UOC or Board or other public vetting of the actual document, the properties affected were confirmed to include properties in or near Raptor Bay, including the existing Timeshares. The Raptor Bay Units could now be “owners of any units including lots or condominium units, and the guests, invitees, licensees, lessees and transient renters of the owners of any such lots or condominium units . . . ” making it absolutely clear that these 200 units could be timeshare units!

In addition, these properties would be limited members of PLCA and have a vote in PLCA in connection with any item relating to the Beach Park.

The WCI Covenant was included as follows: “for each Raptor Bay Unit submitted to the Declaration by recordation of the Supplemental Declaration, WCI will reduce by 1 unit, the number of new units that WCI may construct in Pelican Landing, such that there will be no net increase in the total number of unit owners in the Pelican Landing community that will ultimately have access or use rights to the Beach Park Facilities.”

This rephrasing of the WCI Covenant is interesting, because it could and should be read to subtract the number of Raptor Bay Units from WCI’s remaining build out at The Colony. But what if the units at The Colony are built prior to the Raptor Bay Units? As of October 2014, there were 399 remaining actual units to be built by WCI and some independent property owners at The Colony, not the much higher (680) fictitious number claimed by some, including WCI and our Board. WCI has stated the full build out intention many times, and in October 2014 that full build out number included an additional 399 units maximum. Most of those units are anticipated to be included in WCI high rises.

Should an injunction be requested restraining WCI from building its last 200 units in The Colony until it builds its Raptor Bay Units, or until it waives its Beach Park rights?

There was never any UOC vetting of the LOI or of the Contract or of the Covenant, and no general public disclosure of the actual terms and conditions of any of them, even at any Board meeting. Jet Tipton was a member of the Board when the Covenant was executed and recorded.