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

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

UPDATE ON RBC v. WCI LAWSUIT

Dear RBC supporters:

As many of you who were at the recent court hearing will recall, WCI spent most of its oral argument stating that the Pelican Landing Community Association was a necessary party to the lawsuit.  As a result of WCI’s arguments, RBC has been given 20 days to amend the complaint to include PLCA as a party in the suit. In order to proceed, we now will add them as a party.  

 When the amended complaint is filed, RBC will post it on its web site.

Resident Craig response to Board President Knowles allegations

In response to allegations PLCA President Clyde Knowles made during the June 15, 2016 PLCA Board Meeting, with her permission, Professor Craig allowed the blog to publish her June 17, 2016 communication  (including a list of her impressive credentials) as follows:

 

Mr. Knowles,

I write to you to say that I was quite surprised by both the content and angry and intemperate delivery of your remarks about me.  The fact that your claims were not accurate is of course troubling.  I was not present for this attack, as I was at the Bonita City Council meeting held at the same time to represent an RBC concern about an agenda item, or I would have made these comments to you directly at the Board meeting.

In an article on line in one of today’s papers there was a statement that is apropos in our community as well:  “Political discussion can be civil or rowdy, gracious or mean.  But to have any meaning it has to be grounded in fact.”  I strive to be civil and gracious, and I always ground my position in fact, in so far as it is knowable; careful and thorough analysis; and reasoned argument.  And I try to stick to the issue not the messenger.  But in this case, the messenger has made untruthful allegations and done so in a quite personal and public manner,  thus I respond to the allegations and the method of delivering same.

Continue reading

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