EBIA official discusses golf course dilemma
While a legal battle involving surface water issues and drainage rights on the property of a closed golf course at the end of Estero Island continues, an official of an organization that manages the property’s outlying condominium associations would like to tell his side of the story.
Estero Bay Improvement Association President Errol Hohmann wants the 1,235 condo unit homeowners of the 16 existing condominium associations and beyond to know that EBIA has not been doing wrong. Records show there has been an existing, arbitration-ruled, cost-sharing agreement involving shared drainage responsibilities since Feb. 22, 2005.
In November 2005, the Durpo family bought the golf course and its property from Canadian Murray Flood, who had purchased it in early 2003 from the original development group, Stardial Investments Company, and kept the name Bay Beach Golf Club. Sanibel business owner Chip Durpo became president and changed the name to Fort Myers Beach Golf Club.
The original development zoning approval from Lee County in 1972 allowed the building of a number of units through a Development of Regional Impact, which granted condominium units with multi-story towers that were organized into separate residential communities that spanned the Bay Beach area. The mixed-use development was also required to have 78-percent open space, so the developers decided to put a golf course on top to enhance the property.
An integrated drainage system, permitted by the South Florida Water Management District, was put in place to serve both condominiums and the roughly 55-acre golf course.
“That open land was really a surface water management system that the developer topped off with a golf course to make it aesthetically appealing,” said Hohmann. “We really aren’t the bad people that Mr. Durpo is painting us to be. We understand his position. This has been frustrating.”
Fort Myers Beach Golf Club has been closed since Aug. 1, when Durpo disclosed the club had only 30 members at the time. Three litigations are ongoing. The trial, which is on its third extension, is set for October 2005.
The EBIA law team stated that Durpo knew of the interests, easements, restrictions, encumbrances and limitations related to water management prior to ownership.
“We are arguing that he (Durpo) was on actual notice of the drainage system,” said attorney Mike Ciccarone, who is representing EBIA. “If he would have done the due diligence that people do when they buy million dollar properties, he would have rapidly learned what he was buying.”
Durpo developed website www.baybeachfacts.com to make video claims that a cost-sharing agreement was not between the association and his club.
“For several years now, each condominium association has benefitted from the storm water services the golf course property provides and has enjoyed the benefits of these services without an operating agreement, land use rights or a cost share in the operation of the system,” he said.
EBIA records show provided funding to the previous owners to offset water management.
“EBIA would make payments to the golf course for its share of that water management system,” said Hohmann. “That continued until Mr. Durpo bought the course. Now, he is telling people within the community that EBIA and its members won’t pay for any of that surface water management. That is absolutely, totally false.”
Records show Durpo prepared his own “cost share & operating agreement” and sent it to SFWMD.
“(Durpo) came up with a whole litany of additional expenses that were to be covered supposedly in the agreement that he wanted,” said Hohmann. “He wanted all 16 associations to pay a hefty fee to join his golf course for surface water management. Then, he was lopping expenses on top of that, which had previously never been allowed in the past out of the arbitrator’s ruling.”
After EBIA ignored the unfounded fees and expenses, Durpo decided to sue each individual condo association at an “undefined amount,” but not the governing association. There are 1,235 condo homeowners within EBIA.
“At that point, EBIA joined in the lawsuit since surface water management was our responsibility,” Hohmann said. “That is basically where we stand at this point in time.”
Meanwhile, the golf course property is up for sale for roughly $4 million. The Lee County property appraisal is $2.1 million. Ciccarone stated financial records show the course had been making money each year since new ownership.
“Whether the court re-institutes the cost-sharing agreement or comes up with another form is another question to be decided,” Ciccarone said. “It will still be based on water volume.”
Golf course drainage flows through Waterside at Bay Beach properties or Valencia Villas property, says Hohmann.
“His water goes through those weirs as much or more than our water,” he said.
History shows Stardial Investments Company created EBIA, Inc. while the Bay Beach complex was being developed in 1976. EBIA’s responsibility includes managing the common entities (roads, sidewalks, street lights, tennis courts, dedicated easement, etc.) for the 16 existing condominium associations within the property. A 17th association is expected to begin when the legal battle ends.
“All of the associations are our customers,” said Hohmann. “Individual home owners are not part of it. We are an association of all of the other associations. We manage everything that affects us jointly.”
Surface water management also became part of EBIA’s charge. The drainage system involving nine lakes was developed to filter contaminants prior to release into the Back Bay. It was controlled jointly by EBIA and ownership of the golf course property.
“By design, the handling of the surface water was all required to drain into what is now the golf course,” Hohmann said. “That was in the developers’ plans and approved by South Florida Water Management District.”
Bay Beach Golf Club was the original business group under Stardial’s ownership. In 1999, Stardial sought and received an amendment to the SFWMD permit for capital improvement reasons. The improvements were reported to be necessary to accommodate further residential development in Bay Beach. The drainage system was converted from a “pump charge” system to a “gravity outfall” system. Due to pollution reported to be attributed to a golf course septic system, SFWMD began the requirement of short-term annual water quality testing to comply with the permit.
“Theoretically, there was supposedly an odor and people complained,” said Hohmann. “That testing was estimated to cost between $25,000 and $50,000 annually.”
During the two-year testing period, the Durpo family bought the property.
“At that point in time, he refused to bill us. We have sent him numerous demand letters asking him to bill us. Part of the reason was the water quality testing program stopped. That reduced the expense considerably at that time,” said Hohmann, who eluded to the fact that Durpo has shown interest in re-developing the course to involve more housing.
Since then, individual condo homeowners have sent numerous letters to Town officials to express interest to keep the land as 78 percent open space as their deeds state.
“Those letters are flooding Town Hall,” said Hohmann.
EIBA officials state they has always been and still are willing to pay the agreed upon cost share since the Durpos took title of the course property with notice of the easements and drainage requirements.
“I had a pretty good working relationship with him prior to him filing the lawsuit against us,” said Hohmann. “Now, Mr. Durpo has taken me to task any number of times in the public media as being uncooperative and unwilling to negotiate with him. That is absolutely false.”
Go to www.ebialitigation.files.wordpress.com for more information about the litigation and property history.