JohnnyW3
(Florida)
Posts:14
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| 09/09/2010 6:13 AM |
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| The Board is not allowing the community to vote on paving our 4000 grass runway at a cost of 1 million dollars to home owners, they are doing it with a board vote only. |
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JohnnyW3
(Florida)
Posts:14
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| 09/09/2010 6:17 AM |
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Over 80% of the 255 home owners do not want it paved and or do not want to spend the money and that is why they are doing it with a board vote only.
The last 2 failed attempts to pave the runway were done with a community vote. |
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JohnnyW3
(Florida)
Posts:14
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| 09/09/2010 6:33 AM |
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Palm Beach Post link;
http://www.palmbeachpost.com/news/aero-club-runway-paving-plan-irks-some-900390.html?showComments=true&postingId=900516#commentsList
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JohnnyW3
(Florida)
Posts:14
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| 09/09/2010 6:37 AM |
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Channel 5 video link;
http://www.wptv.com/dpp/news/region_c_palm_beach_county/wellington/aero-club-residents-say-%22no%22-to-paved-runway
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MaryA1
Posts:0
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| 09/09/2010 6:53 AM |
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Johnny,
It all depends upon what the gov docs say. If a vote of the members is required it will be stated therein. Sometimes a vote of the members is required if a capital improvement project exceeds a certain amount of $$$. If the board is violating the gov docs by not seeking a vote of the members then they can be taken to court for a breach of their fiduciary resp. to the assn. On the other hand, if a vote of the members is not required there is nothing the members can do to stop this action. Just because the members want to vote on something doesn't mean they have the right to. |
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SureshD
Posts:0
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| 09/09/2010 8:28 AM |
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Sure there is, RECALL them or those who favor this!
I don't know how far along this project has progressed thus far and,
IF there is this overwhelming majority AGAINST this as you say.....
First get minimum of 20% (MORE if you can) of the members to sign a petition (Florida Law) stating you want the Board to add this (reconsideration of paving)to the agenda. It will have to be addressed in 60 days. At that time make sure all the opponents are there to inform the BOD they are done if this goes through. You will each have 3 minutes to speak since it is on the agenda via petition. Make sure the 80% are there to speak and show that there is more than a majority of the members willing to recall them.
OR, you can just move to recall immediately.
Here's How:
(10) RECALL OF DIRECTORS.--
(a)1. Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests.
2. When the governing documents, including the declaration, articles of incorporation, or bylaws, provide that only a specific class of members is entitled to elect a board director or directors, only that class of members may vote to recall those board directors so elected.
(b)1. Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting. The agreement in writing or the written ballots, or a copy thereof, shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure.
2. The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing or written ballots. At the meeting, the board shall either certify the written ballots or written agreement to recall a director or directors of the board, in which case such director or directors shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in paragraph (d).
3. When it is determined by the department pursuant to binding arbitration proceedings that an initial recall effort was defective, written recall agreements or written ballots used in the first recall effort and not found to be defective may be reused in one subsequent recall effort. However, in no event is a written agreement or written ballot valid for more than 120 days after it has been signed by the member.
4. Any rescission or revocation of a member's written recall ballot or agreement must be in writing and, in order to be effective, must be delivered to the association before the association is served with the written recall agreements or ballots.
5. The agreement in writing or ballot shall list at least as many possible replacement directors as there are directors subject to the recall, when at least a majority of the board is sought to be recalled; the person executing the recall instrument may vote for as many replacement candidates as there are directors subject to the recall.
(c)1. If the declaration, articles of incorporation, or bylaws specifically provide, the members may also recall and remove a board director or directors by a vote taken at a meeting. If so provided in the governing documents, a special meeting of the members to recall a director or directors of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required for a meeting of members, and the notice shall state the purpose of the meeting. Electronic transmission may not be used as a method of giving notice of a meeting called in whole or in part for this purpose.
2. The board shall duly notice and hold a board meeting within 5 full business days after the adjournment of the member meeting to recall one or more directors. At the meeting, the board shall certify the recall, in which case such member or members shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or shall proceed as set forth in subparagraph (d).
(d) If the board determines not to certify the written agreement or written ballots to recall a director or directors of the board or does not certify the recall by a vote at a meeting, the board shall, within 5 full business days after the meeting, file with the department a petition for binding arbitration pursuant to the applicable procedures in ss. 718.112(2)(j) and 718.1255 and the rules adopted thereunder. For the purposes of this section, the members who voted at the meeting or who executed the agreement in writing shall constitute one party under the petition for arbitration. If the arbitrator certifies the recall as to any director or directors of the board, the recall will be effective upon mailing of the final order of arbitration to the association. The director or directors so recalled shall deliver to the board any and all records of the association in their possession within 5 full business days after the effective date of the recall.
(e) If a vacancy occurs on the board as a result of a recall and less than a majority of the board directors are removed, the vacancy may be filled by the affirmative vote of a majority of the remaining directors, notwithstanding any provision to the contrary contained in this subsection or in the association documents. If vacancies occur on the board as a result of a recall and a majority or more of the board directors are removed, the vacancies shall be filled by members voting in favor of the recall; if removal is at a meeting, any vacancies shall be filled by the members at the meeting. If the recall occurred by agreement in writing or by written ballot, members may vote for replacement directors in the same instrument in accordance with procedural rules adopted by the division, which rules need not be consistent with this subsection.
(f) If the board fails to duly notice and hold a board meeting within 5 full business days after service of an agreement in writing or within 5 full business days after the adjournment of the member recall meeting, the recall shall be deemed effective and the board directors so recalled shall immediately turn over to the board all records and property of the association.
(g) If a director who is removed fails to relinquish his or her office or turn over records as required under this section, the circuit court in the county where the association maintains its principal office may, upon the petition of the association, summarily order the director to relinquish his or her office and turn over all association records upon application of the association.
(h) The minutes of the board meeting at which the board decides whether to certify the recall are an official association record. The minutes must record the date and time of the meeting, the decision of the board, and the vote count taken on each board member subject to the recall. In addition, when the board decides not to certify the recall, as to each vote rejected, the minutes must identify the parcel number and the specific reason for each such rejection.
(i) When the recall of more than one board director is sought, the written agreement, ballot, or vote at a meeting shall provide for a separate vote for each board director sought to be recalled. |
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JohnnyW3
(Florida)
Posts:14
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| 09/09/2010 9:28 AM |
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Posted By MaryA1 on 09/09/2010 6:53 AM
Johnny,
It all depends upon what the gov docs say. If a vote of the members is required it will be stated therein. Sometimes a vote of the members is required if a capital improvement project exceeds a certain amount of $$$. If the board is violating the gov docs by not seeking a vote of the members then they can be taken to court for a breach of their fiduciary resp. to the assn. On the other hand, if a vote of the members is not required there is nothing the members can do to stop this action. Just because the members want to vote on something doesn't mean they have the right to.
Maybe legally they can do it with a board vote but morally its wrong and I would not want to face the 200 disgruntled neighbors, we are a small airport community with lots of social gatherings. |
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SusanW1
(Michigan)
Posts:5202
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| 09/09/2010 10:03 AM |
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Have you asked the board WHY they approved the paving?
Perhaps they just increased your property values in a huge way.
I can't imagine a board doing something that 80% of the Members don't want to.
They have just signed their own death sentance, as members of the board.
PS (You guys have $1mil to work with?? - with no increase in assessments?)
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DanielH1
(California)
Posts:481
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| 09/09/2010 10:32 AM |
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According to the articles at the links above, the Board will use reserves and take out a loan so no special assessments. That's why they can do a Board vote only.
Superficially, it seems to be just another case where somebody objects to a decision by the Board. |
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DonnaS
(Tennessee)
Posts:5671
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| 09/09/2010 11:36 AM |
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Johnny,
From the P.B. article--------"But Smith said the board would pay for the paving with reserves and a loan, not a special assessment - which means the board can decide on the project.
Paving opponent Gary Kozan said the board is using a loophole to cut residents out of the decision.
I have 2 comments on this. The Board does have the right to spend the Reserves on the runway IF that is what those Reserves are designated for. and #2 Mr. Kozan says that the Board is using a loophole. The documents of your association must have a runway Reserve fund, therefore, this is NOT a loophole but a line item in your budget. Now the loan part may be in need to resident approval but without seeing what authority your Board has by your documents, we cannot do anything but guess. |
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JanetB2
(Colorado)
Posts:1818
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| 09/09/2010 1:25 PM |
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Is this legal … possibly (maybe could be challenged in court). Is it morally and ethically right – Absolutely Not. While there may not be a “special assessment” where is the money coming from to make the loan payments? … from the Homeowners who pay their association dues into the HOA budget. If at any time there is not enough money to make the loan payments, who will probably be responsible? … again, probably the Homeowners with a Special Assessment or increased dues, if needed down the road.
I sympathize with you as this again is another classic example of a handful playing God and imposing their beliefs on the many. You probably have “runway” line items or reserve funds in your budget for maintenance and repairs, but to take out a three-quarter million dollar loan against the majority of the homeowner’s wishes is ethically not right. Make sure in your documents that this does not go above and beyond “usual” items the board can approve alone. As Mary stated this could be considered a “capital improvement” item, so check the wording in your documents carefully.
Per your Board President’s statement in one of the articles:
… “he hears the group loud and clear but says the long term benefits are too good to vote down.”
Here you have someone who knows it would be voted down, but finds a way to impose a belief regarding what would or would not benefit the whole community … against the majority of the community.
Suresh posted the statute on how to do a recall … with as many homeowners opposing the choice, you hopefully should be able to make this happen. Good Luck!!!
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MaryA1
Posts:0
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| 09/09/2010 2:34 PM |
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| IMO, the majority who feel the runway does not need to be paved should really research this thought b/4 they take steps to recall the board. Just because a majority of the homeowners do not want this project certainly does not mean it shouldn't be undertaken. The members have elected these board members and instilled their trust in them to do what is good for the assn. I know sometimes boards do not behave as they should, but b/4 steps are taken to recall them it should be determined (including having evidence) that they are not upholding their fiduciary duty to the assn. The article I read stated that many of the members are afraid that if the runway is concreted that will bring in larger planes; however this was refuted by someone claiming there is a size limit on the planes that can land on this runway. This point should be thoroughly researched to find out what the real truth is. This is just one of the complaints, I'm sure there are others; they should all be thoroughly researched. IMO, it might be a good idea for the board to hold a meeting to have all these issues aired out -- b/4 they take out the loan and start the project. |
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DonnaS
(Tennessee)
Posts:5671
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| 09/09/2010 3:53 PM |
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I agree with Mary. A recall is not the solution . The fees with doing a recall would pay for half of the runway so I think a recall is a bad idea to solve what we are discussing. Johnny has not filled us in with the questions asked above.
In my years of dealing with HOA's and Boards and on this site, I really believe that most problems between the homeowners and their Boards is ignorance on the part or one or the other or both. If you know what your documents say, who has responsibility and who does not, how the budget and Reserve process works, and what governing duties the Board has, there would be less problems like this.
Johnny, where art thou with some answers? |
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WullyB
(Florida)
Posts:9
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| 09/09/2010 3:56 PM |
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Posted By SusanW1 on 09/09/2010 10:03 AM
Have you asked the board WHY they approved the paving?
Perhaps they just increased your property values in a huge way.
I can't imagine a board doing something that 80% of the Members don't want to.
They have just signed their own death sentance, as members of the board.
PS (You guys have $1mil to work with?? - with no increase in assessments?)
Thier is a select few in here that have big planes that dont do well on grass, they moved in here knowing it was grass and then disrupt the whole commmunity with this paving issue.
nothing will increase property values, it will actully decrease them becuase of the additional noise and traffic, our green grass runway that we have loved for 30 years will be destroyed.
they are taking out a 750,000 loan against HOA doc policy. |
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WullyB
(Florida)
Posts:9
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| 09/09/2010 3:58 PM |
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Posted By DanielH1 on 09/09/2010 10:32 AM
According to the articles at the links above, the Board will use reserves and take out a loan so no special assessments. That's why they can do a Board vote only.
Superficially, it seems to be just another case where somebody objects to a decision by the Board.
they cant take out a mortgage without a 2/3 vote |
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SureshD
Posts:0
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| 09/09/2010 4:56 PM |
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RECALL is A solution to stop this if the BOD does not act in accordance with the majority and they choose to organize and assert their due process. That's Democracy.
Is it sterile? No. It is devisive.
EVERY action/decision has it's consequences. |
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WullyB
(Florida)
Posts:9
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| 09/09/2010 6:43 PM |
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| Who is the best HOA Trial Lawyer in southeast Florida? |
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TishS
(Washington)
Posts:116
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| 09/09/2010 9:17 PM |
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| Have they done any permit application work on this? Trying to pave a runway would be a permit nightmare in our area, drainage issues, enviromental impact statements etc. I would see if your county would even allow this to happen. Oh and of course recall these board members |
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DonnaS
(Tennessee)
Posts:5671
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| 09/10/2010 4:46 AM |
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Wully,
How much do you think this fight will cost the homeowners, added the cost of a Board recall? It might cover the cost of the new runway. My HOA had a fancy Palm Beach lawyer take on a simple case and almost $60,000 later, there was no happy resolution for either us or the defendant.
Have SFWMD get involved first. Johnny has already stated that there is control over some part of that runway area. Do some research quickly before the expensive big gun lawyers show up. |
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MaryA1
Posts:0
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| 09/10/2010 7:41 AM |
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Wully,
Do you have evidence to back up your claim that paving the runway will result in additional noise and traffic? The newspaper article I read stated there are restrictions against certain size planes using this runway. I'm not a pilot but I cannot imagine why a pilot would rather taxi down or land on a grass runway rather than a concrete one. |
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SureshD
Posts:0
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| 09/10/2010 8:07 AM |
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Who cares why some want it and some don't and what facts they have. I'ts about the majority viewpoint regarless of it's validity.
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JanetB2
(Colorado)
Posts:1818
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| 09/10/2010 10:15 AM |
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Posted By SureshD on 09/10/2010 8:07 AM
Who cares why some want it and some don't and what facts they have. I'ts about the majority viewpoint regarless of it's validity.
Suresh ... I agree with you!!! It is homeowner's funds they pay being used and their viewpoint should not be completely disregarded.
Wally ... did you read the RECALL information Suresh posted earlier. Before hiring an attorney read and consider this option. Then if you need an attorney at least it would not cost a million bucks compared to the unwanted paved runway. |
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MaryA1
Posts:0
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| 09/10/2010 3:46 PM |
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Suresh,
If you are with a group of people and the majority say you all should jump in front of the oncoming train, are you going to jump? Just because a majority of the h/o's are opposed to a board action doesn't mean they are right and the board is wrong and it doesn't mean the board should listen to them. The majority only rules when they have a vote and in this case it appears they do not.
Frankly, everyone should care what the facts are. The BOD and all who are opposed to this project need to get the facts straight -- is paving the runway beneficial to the HOA or not. Will it increase noise? Will it mean more -- and possibly larger -- planes landing on the runway? These are a few of the facts that need to be researched. |
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DonnaS
(Tennessee)
Posts:5671
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| 09/10/2010 4:44 PM |
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Mary,
I have seen and heard other scenerios similar to this. Any proposed major change (and this one is major) where the members are going to be assessed a large amount, will bring out the army with excuses and reasons why this proposal should not be accepted. The bottom line tho is "IT"S ALL ABOUT THE MONEY"
We have heard from Johnny and Wully on their sides opinions on why they don't want the runway paved--at least part of it. We have not heard from the other side. The Palm Beach news article gives large numbers for maintenance of the grass runway. The CC&Rs from the HOA has size limits on planes that can land there. The S. Florida Water Management District has some control of the drainage area. These should be subjects that are factored into the decision to pave or not to and not just about how much it will cost. The runway as grass needs mowing regularly and other maintenances and that maintenance expense should be compared to a concrete or black topped care cost
From MLS Listings "Wellington Aero Club is an aviation community. Wellington Aero Club real estate features gorgeous Mediterranean and Key West-style estate homes that sometimes feature up to 8,354 square feet of air-conditioned living space. At this unique community, there is a 4,000 foot private runway. These homes many times feature private hangar, hurricane shutters, vaulted ceilings, Roman tub, pool, and fireplace. Community amenities include a tropical pool and clubhouse. Wellington Aero Club homes average in price range from $579,000 to $3,900,000.. |
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JanetB2
(Colorado)
Posts:1818
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| 09/10/2010 5:40 PM |
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Posted By MaryA1 on 09/10/2010 3:46 PM
Suresh,
If you are with a group of people and the majority say you all should jump in front of the oncoming train, are you going to jump? Just because a majority of the h/o's are opposed to a board action doesn't mean they are right and the board is wrong and it doesn't mean the board should listen to them. The majority only rules when they have a vote and in this case it appears they do not.
Mary ... this is a bad attitute for a Board.
Boards need to consider they are elected by the MEMBERSHIP and to act on behalf of the membership as a whole, and they can be replaced. In essence boards need to consider:
1. An HOA non-profit corporation does not belong personally to the board ... it belongs to the members.
2. The HOA funds are not the personal funds of the board ... it is money the members paid.
3. Because it is not their personally owned corporation nor their personal money ... the board should therefore be obligated to consider the majority member choices.
The board is a handfull of members who are suppose to act with care required of fiduciaries of the unit owners. People do not pay large sums of money for their homes to end up in a "Hitler style Dictatorship".
It is attitudes like this that are giving HOA's a bad name and why fewer people now do not want to purchase a home in an HOA subdivision. If it keeps up HOA subdivisions will loose value, because no one will want to purchase a home where their concerns and money are given up to a few who want to pretend they are in complete control and Rule the Roost. |
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DonnaS
(Tennessee)
Posts:5671
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| 09/10/2010 6:50 PM |
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Janet,
Why are some assuming that this is a bad Board or are you just talking generally. So far, this huge issue has no representation from the Board or any of the governing documents. There is a Reserve fund in place for this runway which means that there is a fudituary duty for the Board to take care of it. This Board has to maintain and keep the runway working. Some of the old timers want it to stay the same. Which is the right thing to do for the long time health of the runway? Do you know because I certainly do not. It cannot always be what the members think they need but it must be what is the right thing to do. |
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JanetB2
(Colorado)
Posts:1818
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| 09/10/2010 7:23 PM |
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Donna ... the information contained in the quote in my last post is the bad attitute for a board. The issue here is the board does have a fudiciary duty to take care of the runway and maintain; however, it is to maintain in the same condition as when the subdivision was initially implemented. Those who purchased in the subdivision did so probably because it was a grass runway.
Instead you have a handful of Board Members who are now trying to impose their idea of what the runway should consist of AGAINST supposedly 80% of the other homeowners wishes. I would think riding a lawn mower around and maybe replacing grass once in a while would be alot cheaper in the future than having to possibly spend another up to a million dollars down the road to again replace a concrete runway.
When you state:
It cannot always be what the members think they need but it must be what is the right thing to do.
My response would be:
How would a few handfull of Board members know for sure if it is the right thing to do. The point is (especially when we are discussing this large sum of money), it's not the Boards personal money. They have an obligation to consider the majority of those who own the money that has been paid.
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SureshD
Posts:0
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| 09/11/2010 4:47 AM |
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The OP first wrote:
"The Board is not allowing the community to vote on paving our 4000 grass runway at a cost of 1 million dollars to home owners, they are doing it with a board vote only."
He then wrote:
"Over 80% of the 255 home owners do not want it paved and or do not want to spend the money and that is why they are doing it with a board vote only.
The last 2 failed attempts to pave the runway were done with a community vote."
The question or issue appeared to boil down to the OP feeling membership participation is needed in this decision and how could that be achieved.
I pointed out the law(s) which could give him a forced audience before the board and how the "...80% of the 255 home owners..." could possibly stop or reverse the situation.
Those of you who wish to challenge the facts and the OP feelings or debate the need to pave or not or go off in hyperbole about jumping in front of trains etc. are just doing so for your own entertainment. It is of no assistance to the OP. |
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SteveM9
(Massachusetts)
Posts:1529
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| 09/11/2010 1:01 PM |
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Over 80% of the 255 home owners do not want it paved and or do not want to spend the money and that is why they are doing it with a board vote only.
The solution seems simple to me. Replace the board.
The board no longer represents the community and must be replaced immediately. |
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MaryA1
Posts:0
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| 09/11/2010 2:42 PM |
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Janet,
You seem to forget that the assn is a corp. The board is elected by the members but they do not represent or work for the members, they represent the corp and must do what is in the best interests of the assn (the corp). The members place their trust in the board members to do this and that is what fiduciary resp is all about. Not pleasing the members but doing what is right for the assn (the corp)! The board is not the fiduciary of the unit owners, as you say!! The board is not obligated to do what the members think should be done. If that were the case then the members would have to vote on every decision made by the board. Look through your CCRs and see how many actions require a vote of the members. Electing board members and perhaps ratifying the budget and voting on capital improvements that exceed a certain $$ amount. The reason why the members are not required to vote on all of the board actions is because a board is in place to take care of assn business.
Just because the runway was made of grass when these members purchased their homes doesn't mean it must always remain that way. The builder may have built it that way simply because he didn't want to spend the $$$ to have a concrete runway built. I doubt these members brought their homes just because there was a grass runway. And I also doubt that is the real issue here. I'll bet most of the members who oppose this project do so for other reasons and those reasons are what must be researched and debated. IMO, the number of members who oppose this project should not enter into the board's decision. If this project does not require a vote of the members then how they feel about it has no bearing on whether or not it should be undertaken. If the board had to obtain the pulse of the community b/4 making decisions nothing would ever get done and that is why the CCRs only require a vote of the members for very few things. |
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