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THEODORE LEVY 305 Greenbrier A West Palm Beach, Florida 33417
April17,2011 UCO; LEITERS TO EDITOR: Re: Our GolfCD.,.. Problems
1)The Palm Beach County Zoning Board has demonstrated its fairness
and impartiality. In addition to its recent :favorable decision
concerning OUT 'Golfs Edge' it has also just in2011issued a 'Mimer
Trail Golf Course' decision. 2)The legal precedent is "'on paine':
Same circumstances, same state & county, same zoning board,
same zoning code, same year,. same size golf course; an
inadvertent,made-to-order, legal precedent. 3)Its circumstances so
exactly replicate our golfcourse dispute, but for a change ofname
& it is virtually our A developer bad purchased an 18-bole golf
course abutting a Palm Bach County residential condominium
development, and sought a zoning approval to build houses tbereon9
4) Vigorously fought by the developer,. and vigorously opposed by
the various associations within the development - and the
subsequent etc. - it was just last month finallydecided and.ruled
thar the developer had made an "unfortunate investment".Even the
phrase " ..in perpetuity" was invoked. 5)Nei:fuer our opposing
developer nor any other developer appears to have much likely
success, " ...in perpetuity" towards building residential housing
facing our wonderful and beautiful Century Village. 6)Two nice
results: a)I am in possession ofthe complete,book comprehensively
reciting the actual defensive position and lawyers defensive Page 1
of2 ..' position in the [Palm Beach County] 'Mizner Trail Golf
Course' matter, including the [successful} detailed legal papers
signed & submitted by each ofits opposing development
associations, including the points to have been considered by the
zoning authority, and resulting in its final decision denying the
rezoning. b) I freely offer it to our Century Village. In addition
to its guidance, it should be helpful in vastly reducing our
(otherwise large) legal costs.. c) Where is our developer going?
Unless our developer plans to go into the golf course business, the
likelihood ofanother developer stepping into' his shoes appears to
say the least. i)lnstead of our facing a decrease in our property
values resulting from developer's proposed housing we might work
out a mutually interesting takeout and instead use the property
ourselves to beautify our development and enhance our property
values.. d) Caution: "Don't count your chickens before they hatch":
We are handed a good but we shall need an appropriate lawyer to
oppose avery determineci developer who is legally betting nall in"
to get his way. e) In any case, we should not usejust any lawyer to
"re-invent the wheel". Oms is nota cake walk...The choice ofalawyer
is neither a beauty contest nor a popularity contest. f) A work has
already been done; it would be largely a matter ofsubstituting
names in its computer. (l)The Jaw finn used by the MimerTrail
condominium owners would appear to have a proven, track record of
blocking a housing development to replace a golf course.
(2)Furthermore, their legal research and legal strategy is already
behindhopefully leading to a significantIy-reducedlegal cost for us
to pay. Page2-of2 SECOND COALITION AGAINST rv'lIZNERDEVELOPMENT
COMMUNITIES OPPOSED TO THECONVERSION OF MIZNER TRAIL GOLF COURSE
JANUARY, 2010 communitieswithsignedresolutions,etc.
SECONDCOALITIONAGAINSTMIZNERDEVELOPMENT November,2010
communitiesopposedToTheConversionofMiznerTrailGolfCourse
NumberofHouseholdscommunity 172Addisonpoint 300Arborclub
49caminowoodsI 60caminowoodsII 86canarypalmclub 100Cloisters
56Fairwayvillage 25Golfvista 46TheGreens 116LaCosta 188Ironwedge
67LaJoya 99Marbella 35palladium 320PalmsofBocaDelMar patiosDelMarII
35 300Reflections wellesleypark 53 52windrift 26woodbrier 2185
Page1 --- --------------II IFire' Amberwoods! StaUon: ..#55
..Tiburon""... Casa Nueva ,, Boca Park N t-.--..,.' .....
..'7:"",..,.,....... 'tII', III ": Woodhaven'Wind,BocaIIB ca rr\.
ICondoI:Palms:Boca:Co?onv ,IPlaceI IIHamor Town Communities Opposed
to Conversion Of Mizner Trail Golf Course ColonyWoodS --j I I I
I
1(0) December 29, 2010 To:Members of thePalmBeach County
PlanningandZoningBoard,andCounty Commissioners From:The Second
Coalition Against Mizner Development Re:Mizner Trail Zoning
Application2010 - 1728 The Coalitionrepresentsthousands of
households livingaround the Mizner Trail Golf Course,whichis the
subject of a request tochange zoning topermit buildingof 390
housingunits onthe golf course.We haveread theDevelopment Order
Amendment Request submittedbythe Siemens Corp,the development
company and wouldlike torespondtonumerous inaccuracies
andmisrepresentations inthat request. WithRegard totheMaximum
AllowableDensity Argument: The Siemens Development Request states
that their proposalmeets thePalmBeach County Comprehensive
Planfuture landuse development guidelines of 8 dwellingunits per
acre. However,theMaster Plan whichestablishedtheBocaDelMar
P.U.D.allocated allMaster Plan "units" available inBocaDel Mar to
thevarioushomeowner associations withinBocaDelMar. The previous
County Commission decisionin2008 which rejected the previous
developmentplan acknowledged that there wereno available units to
be "recaptured" infuturehousingproposals andthus the golf course
was toremainas green space.This discussionisreflectedin the minutes
of that 2008meeting whenthe vote toreject was taken.It is the
contention of the Coalition,and thehomeownersit represents,that
there is no justification onany basisto change the Master
Plantoaccomodate a golf course owner who made a badbusiness
decisioninbuying aproperty not zonedfor housing. WithRegard to the
Changed Conditions Argument: It is ingenuous for Siemens
Development toargue that the deteriorating condition of the golf
course justifies a Master Planchangeinorder tobuildhouses when the
owner of the golf course,whohas anagreement to sell toSiemens
contingent upon gettinga zoningchange,
createdtheproblembyshuttingdown the golf course inorder to
"blackmail" the community into supporting a development proposal.
Further,Siemens tries to justify development bystating that "it
isnot probable that the subject property willever retumtobeinga
golf course"because there isno demand for gOlf. Apart from just
beingMr.Siemens' opinion,once againthere isnoproof that
thisisso.InJudge Gerber's opinionin 2008,rejectingthesuit brought
by Mr.Bliss andMr.Comparato,he stated that the owners hadnot
substantiated their claimthat a golf course could not
beprofitable.Infact,he noted that the owners hadnot managed the
course insuch a way for,jt tobeprofitable.Not only is there a
potential demand for golf as demonstrated bytheplannedprofitability
of thenew Osprey Pt.Golf Course inW. BocaRaton,but there are
several golf courses inBoca that havebeen bought byprivateinvestors
since 2008. Yes,the golf coursehas become the"attractive nuisance"
Mr.Siemens claims,but that is wholely due to theneglect bythe owner
of the golf course andit is certainly not a justification to
re-zone theproperty for a development that bringsnobenefit
tothehomeowners of Boca Del Mar, who, infact,willfacelower values
for their properties,destruction of valuable greenspace and
increased traffic andcrowdinginschools. With Regardto theImpact
Argument: Once again the County has certifieda development
proposalfor thisgolf coursebased on Countytraffic performance
stand'ardsThese areminimum standardsFully-developed,this project
would leadto800additional cars onnew roads lying close to homes
andemptying onto existingroads already heavily-travelled.The last
development proposal for Mizner was certifiedalso bytheCounty Staff
as to traffic impact,but theproposal was stillrejectedby the County
because theproperty was plannedtoremainas golf course or
greenspaceinperpetuity andwould, if approved, violate theintegrity
of a modelplannedunity development. Withregard
tohousingvalues,MrSiemens maintains that pro,perty values willbe
improvedby his development.Given the current housingmarket
andexistinginventory of unsold houses andcondos,whichmost experts
feelwill take years to work down, itmay be yearsbefore demand
warrants new housing.There certainly isno demand now, andif new
housing were warranted,there are plenty of other pfaces
inPalmBeachCounty where it couldbebuilt without destroying this
existinglanned community.It isa truism inrealestate that new
construction will attract buyersmore thanexistinghousingat thesame
price point.Homeowners incommunities around the golf coursehave
already seen their property valuesfallbecause of the clOSingof the
golf course andtherecession.Buildinghouses right behindthemwinonly
compoundtheir problem. WithRegard toRevenue for the County: The
argument that the project wouldresult inincreasedrevenue for the
County is also specious.First,impactand permit fees are one-time
expenses sothat thereal,on-going advaloremtax revenue wouldbe only
the $2,500,000 projected;secondly, that wouldbe offset bya decline
inrevenue fromexistinghomes due to their decreased value
withtheloss of a golf course andgreen space;thirdly,that tax income
would only beafter theproject is fully built whichMr. Siemens
acknowledges wouldtake10 years;andfinally, that amount of
additional taxrevenue is a minute portionof the County budget.In a
meetingwithCmmr. Abrams,he acknowledgedthat the tax revenue
argument isnot compellingenoughtojustify a zoning change.
WithRegardto theBoca Del Mar Improvement Association: Mr.Siemens
stated thatthere is future uncertainty for the golf course because
of a 2003 agreement between theBDMIA andthe property owner
restrictingtheproperty'suse to a golf course,whichexpires in
2012.Aside from the fact that only the County canmake zoningchanges
affectingthe use of the golf course, thisagreement isprobably
anillegal document since it was never approvedbya majority of unit
owners inBoca DelMar.Please see Exhibit 1, a letter from Sachs,Sax
andKleinto the BDMIA dated 2/18/05, listingthe reasonswhy the
amendment tothe originalDeclaration of Restrictions may
beinvalid.Finally, the originalDeclaration of Restrictions
providedthat saidrestrictions couldbe automatically extended beyond
12131/2012 for successive periods of 10 years and that any
amendments must beapprovedby 75%of unit owners.So there isno "drop
dead" date of 2012 andthe amended declaration referredtobyMrSiemens
has never beenapproved byunit owners. Mr. Siemens refers to a
mailingto homeowners that had positive feedbackWe don't know where
he gets thisinformation.Public meetings for homeowners scheduledby
theBDMIA Board to get input uniformly hadnegative feedback.Infact,
Mr. McDermott, President of BDMIA, polled attendees at each
meeting: allinattendance objected tothe development andexpresseda
preference for the property toremain as a golf course or
greenspace, witha public park or recreationfaciltiybeing other
possibilities.The overwhelmingnegative feedbackisreflectedinthe
petitions and resolutionsinthis package.They are signedby most of
the communities around the golf course andrepresent more than 2,000
households.Finally, acknowledging the overwhelming opposition of
the community. theBDM IABoard recentjy voted to oppose theproposed
development.(See Exhibit 2) . Regarding AlternativeUses:
Althou9hMr.Siemens maintains no viable use for the
propertyhasbeenbrought forth,his view isunderstandable: the owner
of the golf course hasnointerest inanalternative proposal because
he wants tomake money bysellingtheproperty, andMrSiemens
wantstomake money by buildinghouses. Should the County not oblige
the developer once againbyrefusingtochange thezoning,
alternativesshould beexplored.The golf course owner
couldselltheproperty to the County or theBoca RatonBeach andParks
district for use as a public park or recreationfacility or toa
public/privatepartnership consisting of the BDMIA and a
governmental entity at the current appraisedvalue.Or it
couldberestoredbythe owners toits originaluse as a golf course or
sold toa group of investors who could restoreit asa golf course.The
Coalitionand the homeowners of BocaDelMar cannot make decisions
controlling the future of the property;however, we have indicated
to our representative, Cmmr. Abrams, the BeachandParks District
andthe BDMIA that we would like towork with whomever to develop a
creative solutionthat wouldbeto "the great benefit of
thecommunity". For allthe above reasons, we respectfully request
that the P,lanning andZoning Board andthe County Commissioners
deny,once again,a proposal to buildhouses ontheMizner Trail Golf
Course andprovide leadership tohelp finda permanent solution that
willcontribute tothe qual ity of life inBocaDelMar,not detract
fromit. The Second CoalitionAgainst Mizner Development R A L FBROO
K E S,A T TOR N EY Board C ertified in Cit)',COlln(y and G OI'nable
mcl1ner S) as to not destroy the generalplan e.g.Nelle v.LochHaven
Homeowners' A!:OOcjatio,n,413 SJ.2d28 (Ra.1982);Holiday Pines
Property Owners'Asoociation.Inc.v.Wetherington,596SJ,2d 284(Ra
4thDCA 1992).The originalplan of development for Boca DelMar
required that Tracts 64-8 and64-C be dedicatedto the purpo!:e of a
golf courre andcustomarilyrelated :3Ctivities.It is unrearonable
for thecrnendmentsto entirely chcnge the cha-acter of Wihat was
Originally prescribedby the Declarations. !:econd, 720.306(1
Xc),RoridaSatutes, limitstheabilityto amend Declarations. A-ior to
JJly 1,2003, anamendment which affecteda "vestedrighr
requiredunanimous conrent of alloftherecordowners aswell' asthe
recordowners of liens.Effective lJly1,2003, 720.306(1
Xc),RoridaSatutes, was amended to preclude certain l:pecified
actionsincluding providing that an amendment may not materially and
cdver9:!ty alter the proportionate voting interest appurtenant to a
parcelunless the record pa-celowner Cfldallrecord owners of liens
oin in the executionof the amen,dment. RacaD alMar Latter 18. 2005
The addition of four hundred and 9Xty (460) prospective owners'
with voting interests loul dmaterially ald adverre!y alter the
proportionate voting interest of the current owners. Given that
allrecord percelownersand allrecord owners oflien did not join in
the execution f the amendment. 720.306(1 Rorida Satutes,may have
beenviolated. SJuthCounty Coalition has authorized us to ajvire
youof their position with respect ')amendments.SJuth County
Coalition is maki ng demand that these amendments be
3S::indedandthattheAsrociationtal