Lawsuits about golf course parcel linger on
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 to carry on for the owner of the course property and managing officials of adjacent condominium associations.
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 his managing board has not been doing wrong. Meanwhile, Fort Myers Beach Golf Club president Chip Durpo claims mis-management on the part of EBIA has created the unpleasant situation.
While records show that there has been an existing, arbitration-ruled, cost-share agreement involving shared drainage responsibilities since Feb. 22, 2005, that agreement is not binding for Fort Myers Beach Golf Club, says Durpo.
“There were no easement rights ever given by myself or a prior owner of this golf course property to any of the individual condominium associations or EBIA,” said Durpo. “There was no opportunity during our acquisition of the property to gain notice. EBIA had an agreement with my predecessor.”
Durpo argues that the cost-share agreement clearly outlines that it must be recorded with the Lee County Clerk of Courts in order to be binding on future owners, heirs, etc. He says the Association failed to record that document.
“Without that document, we had no way to have knowledge of the document,” he said.
Hohmann agrees the cost-share document was never recorded with the Clerk of Courts office, but maintains the agreement was signed and delivered.
“The recording is simply the public notification thereof. The assumption was that they would record it, because it was to their benefit,” he said. “When (Durpo) bought the golf course, he had copies of the agreement. He had knowledge of that agreement before he ever closed. There are notations in his closing document.”
The Association law team confirmed 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.”
Fort Myers Beach Golf Club has been closed since Aug. 1, when Durpo disclosed the club had only 30 members at the time.
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 due to zoning, so the developers decided to place 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 the 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.”
At a Dec. 5, 2014 hearing, the plaintiffs (golf course reps) made a motion to dissolve the Lis Pendens, or notice of pending action. The court ruling showed no basis for the claims against Fort Myers Beach Golf Club. The trial is on its third extension and set for October 2015.
“The judge entered an order that stated that there is no nucleus to support (EBIA and the individual condominium associations) claims,” said Durpo. “The facts are that EBIA did not do their job, they are on notice of what they haven’t done in the past, they were put on notice by an award of the arbitrator, and they’ve been put on notice by the current sitting judge in the case that there is no nucleus to support their claim.”
“We agreed that we didn’t need to extend the Lis Pendons because it is already on the record,” said Hohmann.
At the same hearing, Hohmann said Durpo’s legal team had to withdrew a motion that would have granted an injunction to disallow the Association to put water on the golf course when required permits remained steadfast.
“We pointed out that if the judge were to (grant the injunction), that would put everyone in violation of all the building permits and the water management district permit,” Hohmann said, who further stated the District has certified all individual condo associations and changed permits from construction to operational status.
Meanwhile, Hohmann said Durpo is supposed to provide documents to the Association so that its legal team can make a defense.
“Everything that we have virtually asked him to provide as our rebuttal to the lawsuit, he has fought us tooth and nail on. He doesn’t want to give us anything, and we don’t have anything on what he is actually suing for,” said Hohmann. “In fact, he is operating on borrowed time right now. He keeps postposing. The court for the third time issued him orders to deliver the materials to us. That was just a couple of weeks ago.”
Records show Durpo prepared his own “cost share & operating agreement” and sent it to the District.
“We have offered them the opportunity to obtain a cost-share agreement with us. However, EBIA has declined to discuss or negotiate,” said Durpo.
Durpo claims the EBIA president lowered club membership.
“Errol Hohmann encouraged the entire Bay Beach community to boycott the golf course in an effort to drive us out financially,” he said.
On hearing this, Hohmann called it a fabrication.
“We’ve worked with him diligently for years to try to increase his membership,” he said. “Every property that adjoins to the golf course property, 1,235 condo unit homeowners, are now suddenly being sued by the owner of the property. He’s alienated everybody.”
Hohmann claims Durpo tried to create his own master association by asking each condo association to join with hefty fees attached.
“What he is trying to do is create his own EBIA and charge each condo association fees like $15,000 to $20,000 to join. Then they would have to agree to pay all kinds of monthly assessments in addition to what our previous agreement was for surface water management,” he said.
When the associations refused, Hohmann claims Durpo decided to sue each individual condo association at an “undefined amount,” but not the governing association.
“The problem is EBIA does not dump water onto the golf course property at all. The individual associations do dump storm water onto our property,” said Durpo. “Therefore, we sued the violator.”
Hohmann said the Association “joined in the lawsuit” since surface water management was its responsibility.
Durpo stated the association was unsuccessful in the intervention of the lawsuit, because the judge did not allow it, and began their own litigation.
“In order to try to support their claims, they had to sue me,” said Durpo. “EBIA was supposed to develop a storm water management system, which they never did.”
Durpo provided documents that involved an arbitration between Stardial and EBIA in 2003. Estero Bay Improvement Association lost in arbitration with the Declaration of Rights stating that it must have an easement agreement with the golf course owner or future and successive claims will continue.
“Without an operating agreement for the future, successive claims for unjust enrichment damages with necessary legal expense and interest expense will be required,” according to the Declaration of Rights. “Accordingly, it would behoove all concerned to address all matters of cost sharing in order to reach an operating agreement designed to run with the land.”
Hohmann says that is the document that never got recorded. The provided cost-sharing agreement was effective Feb. 22, 2005 between Bay Beach Golf Club and Estero Bay Improvement Association.
“As a result of that arbitration, the two parties entered a cost-sharing agreement, which is documented,” he said.
Historical records shows Stardial Investments Company created Estero Bay Improvement Association, 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 could be developed if more condominiums are allowed to be built.
“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 the Association 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.”
Estero Bay Improvement Association records show provided funding to the previous course 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.”
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.
Stardial sold the golf course to Canadian Murray Flood, who purchased it in early 2003 and kept the name under Bay Beach Golf Club, Inc.
Due to surface runoff bay pollution reported to be attributed to a golf course septic system, the District 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.”
In November 2005, during the water testing period, the Durpo family bought the golf course and its property. Chip Durpo became president and changed the name to Fort Myers Beach Golf Club.
“At that point in time, he refused to bill us,” said Hohmann. “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.”
Durpo blames two groups for the current problem.
“This situation was caused by two entities: South Florida Water Management District and EBIA. South Florida Water Management District issued permits as far back as the 1980s that had requirements,” he said. “Many of these requirements were that not a single condo over there was to be occupied until the conditions of the permit were met. South Florida Water Management District did not enforce these conditions.”
Both men say they are willing to negotiate.
Durpo said he had a scheduled meeting lined up with EBIA on Feb. 11, 2013.
“I don’t know how many times we have attempted to have EBIA sit down at the table to discuss this,” he said. “Six weeks prior to Feb. 11, 2013, EBIA and their attorney at the time, James Costello, agreed to meet with us on that date at 9 a.m. At 9:05, Errol Hohmann called and said EBIA had nothing to talk about. That was followed immediately by a letter to my attorneys from (Costello) stating the very same thing.”
Durpo stated the Association refuses to meet with him as long as the terms of EBIA’s cost share agreement is not accepted. He says he is not bound to it.
Hohmann provided Durpo’s cost-share proposal that was open ended without concrete numbers.
“It’s not a negotiable document. It doesn’t have numbers in it,” he said. “He has never given us anything to negotiate.”
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 in the video.
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.
Meanwhile, the golf course property is not officially up for sale, but Durpo said it could be sold for the right price. The Lee County property appraisal is $2.1 million. Currently, County officials are considering purchase of the property.
“In my opinion, he is trying to get rid of the course,” said Hohmann. “He is trying to raise a case with the Town that we are against him, that he cannot make any money on it, even though he has financial statements that say he is making money on it. He is dealing with real estate developers and, under the premise, attempting to develop (the property) into condominiums or homes.”
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. Last week, Town officials reported roughly 500 letters have been received and approximately 85 percent of letter writers have expressed interest in keeping some form of green space, like a golf course, on the property.
EBIA officials state they have 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 and www.baybeachfacts.com for more information.