Condo plans upset Baywinds residents

By Pat Beall
Article Courtesy of The Palm Beach Post

Published July 11, 2004

WEST PALM BEACH-- Three black plastic fans tried to push cool air to more than 100 hot-under-the-collar Baywinds residents gathered at the development's clubhouse.

Many already were doing a slow burn, having just learned of plans by Baywinds builder Lennar Homes Inc. to erect five-story condos in their single-story neighborhood.

"It really is very disconcerting to find out now that these plans have been approved since 1993," said Karen Israel, who will be able to see the condos from the front door of her newly purchased villa. "It was not open to discussion until it was too late.

"Just tell me what is going to happen so that I can make informed choices. What's the big secret?"

In fact, Florida home buyers who want to know what their development will look like in five, 10, or 15 years face a tricky task. Disclosure of long-term plans for a neighborhood may -- or may not -- be included in the stack of paperwork sellers typically provide.

Even when included, details may be overlooked in the reams of fine print.

"If the question is 'Is there meaningful disclosure,' I would suggest there is not," said William Sklar, an attorney with Foley & Lardner and a Florida Atlantic University professor specializing in condominium and cluster development law. "There is a fundamental flaw in the process."

True, a new 100-page state law demands home buyers be provided with information about such things as homeowners association dues. But Sklar and others question whether it goes far enough.

"I get these disclosure complaints, three, four times a week," said Jan Bergemann, a North Florida homeowner who founded the grass-roots advocacy group Cyber Citizens for Justice following his own unhappy experience with a planned development.

The popular western gated communities sprouting in West Palm -- newer, large developments built out over a course of years -- seem especially prone to disputes.

Take Baywinds. Lennar Homes secured the right to build five-story condominiums more than a decade ago. But when home sales began several years later, "we saw single-story homes," Baywinds homeowner Kathryn Stellmack said.

"That was what was in the sales brochure. And no one ever said, 'And oh, by the way, there is going to be a condo tower looming over you.' "

Another unwelcome surprise is a proposed extension of Roebuck Road. Years on the drawing board, the stretch of Palm Beach County roadway would sit atop a berm that is, in some cases, roughly 500 feet from homes.

Baywinds and Riverwalk will both be affected, according to the county.

Both were built by different developers. But residents share a common complaint.

"When this community was being sold, the site plan never showed a proposed road," insisted Ron Kaiman, a homeowner who said he shelled out "between $6,000-to-$8,000 extra because I wanted a lot that backed up to a nature preserve."

In Riverwalk, homeowner Jim Green said, "We were told that it was pristine land, and nothing could be built back there."

At Briar Bay, another western community, home buyers who thought they would be living next to an 11,000-acre forest were horrified when workers started felling trees, the better to pave the way for an estimated 300 sport utility vehicles, pickups and dump trucks that will rumble through each day on their way to a new Palm Beach County operations center.

"We can't anticipate everything that is going to happen, with a local government or an ordinance or at the state," said Ben Butterfield, general counsel for Lennar Corp.

And Sklar points out that market conditions may force developers to tweak plans. "They want the ability to adapt to the marketplace," he said.

Those marketplaces differ. In New Jersey, for instance, local governments -- not developers -- are responsible for providing information about plans that could affect neighborhoods.

In Florida, home buyers can still get the same information with a phone call to a city engineer, said Randy Lyon, the Kissimmee-based regional president of The Ginn Co. who served on a statewide Homeowners' Association Task Force.

"They may think the Realtor is going to check, or the attorney is going to check," Lyon said of home buyers. "But you can't escape some level of personal responsibility for these things."

Courts seem to agree.

Too many suits, Bergemann said, wind up like the case brought by his own neighborhood after land set aside for a playground was turned into a retention pond. The developer offered $5,000 to settle. "We were 63 plaintiffs," Bergemann said. "Divide $5,000 among 63."

Although the Division of Florida Land Sales is charged with overseeing laws making it a third-degree felony to sell homes using misleading information, the state has not forwarded cases for prosecution within the past five years, a spokeswoman said. "We have a law without teeth and the industry knows it full well," Bergemann said.

Nationally, Butterfield said Lennar is working on a new, uniform disclosure policy.

At Baywinds, the local division has offered an olive branch and a compromise: three-story condos instead of five.

Some found that hard to swallow. "I have lived in this development six hours," said one newcomer. "And all I can say is, 'Does anyone have any Scotch?' "