Dispute over mandatory membership at Kensington heads to court


Article Courtesy of The Naples Daily News


Published April 23, 2009

— Residents are battling over whether to make membership mandatory in the country club at Kensington in Naples.

The fight has pitted neighbors and friends against each other in the private, high-end golf community off Pine Ridge Road - and it has landed in Circuit Court in Collier County.

Two residents who want to keep membership voluntary have sued the community’s homeowners association and all of its board members, who unanimously support the idea.

The two hope to stop a May 15 vote on the change.

The original deadline to vote was March 16 before the start of the annual homeowners meeting. At the meeting, the master association decided to keep the vote open another 60 days after finding out there wasn’t enough support to pass mandatory membership.

The board adjourned the meeting to allow more residents who didn’t vote to weigh in, and others who voted against it to change their mind. More than 100 owners and residents didn’t vote at all.

“We wanted people to actually make a vote,” said William Lutz, president of the homeowners association, who moved to Kensington six years ago after retiring.

“If it doesn’t pass because they vote no, that’s democracy,” he said.

The homeowners association was 37 votes short of getting the two-thirds majority it needed to make membership mandatory at last month’s meeting, Lutz said. It needed 375 votes and got 338.

“This is something that is strongly supported by the community,” Lutz said.

Since the last meeting, the association has used a letter-writing campaign to urge a ‘yes’ vote on the conversion to mandatory membership, part of a trend among upscale communities in Florida during the past couple of years.

Residents Lou Altieri and Kenneth Gerus are behind the court action. They say they represent more than 100 others against mandatory membership in the gated community - and those who didn’t vote.

“There are a lot of people who have donated monies for a lawyer,” Gerus said. “They don’t want to be up front. They would rather stay behind the scenes.

“Sometimes you have to take a stance in life, and say, ‘Hey the board has gone too far,” he said.

Only about 20 percent of Kensington’s residents live in the community year-round. Many part-time residents don’t want to get involved in the conflict and want to avoid the stress.

“Right now, neighbors hate neighbors,” Altieri said. “People are sending nasty e-mails. Neighbors are having heated discussions when they pass each other on the street. That is very typical of what mandatory membership does to a community.”

Altieri believes the board acted illegally when it extended the vote based on his understanding of Florida law and the association’s own bylaws.

“We just feel like there has been a big injustice,” he said.

The attorney representing Kensington’s master association argues the board has done nothing wrong by giving residents more time to vote.

“It’s perfectly acceptable under corporate law and the bylaws for Kensington specifically to allow the people at the meeting to adjourn the meeting to a future time and reconvene,” said Larry Glickman. managing partner in the Port St. Lucie office for the Sachs Sax Caplan law firm.

Glickman has represented more than 20 communities in Florida that have successfully converted to mandatory membership, including Collier’s Reserve and Audubon, both in North Naples.

An emergency court hearing on the Kensington case is scheduled for Wednesday.

Opponents are fighting for a permanent injunction to let the March 16 results stand.

“The homeowners association tried this four years ago and it failed by almost the same number of votes,” Altieri said.

If approved, the conversion plan would require new residents to join the country club and pay annual dues. Fees and dues differ based on the type of membership.

“Essentially, the program is for future owners, not the present owners,” Glickman explained. “Future owners have to join the club when they buy.”

He said there are many exceptions that would cover changes in ownership because of death or divorce.

“We go to great lengths to protect the people who live there now,” Glickman said.

Supporters argue mandatory membership is in the best interest of residents. One of the main benefits, they say, would be to ensure there are enough members in the future to keep the club operating and the golf course green.

“It has always been about the protection of property values,” Lutz said. “That is the association’s only concern.”

Though the club is financially sound today, there are worries about declines in membership, Glickman said. Across the country, golf and country clubs have been losing members as they age, lose interest in the sport and face hard times in a bad economy.

If the club can no longer operate, the golf course could become overgrown with weeds or developed, drastically changing the look and feel of the community. It’s something that’s happened in Palm Beach County, Glickman said.

“I know I’m being a little dramatic but it’s real,” he said.

He said property values could see steep declines if the club fails.

“There are some studies that show about 12.5 percent of the value of a home in a country club community is attributed to the existence of the club, whether you are a member or not,” Glickman said. “That premium is in danger if the club runs into financial difficulty.”

Opponents fear the conversion will lower property values, make homes harder to sell, and lead to higher club fees in the long run.

In court documents, Altieri and Gerus argue the change to mandatory membership is illegal in Florida. They say it will “severely strain” the ability of residents to sell because buyers would have to be “willing to accept the exorbitant dues, fees and assessments” that come with mandatory membership.

A number of communities on Florida’s east coast succeeded in getting mandatory membership overturned in court because it would “destroy the general scheme or plan of the development,” said Altieri, 59, who has lived in Kensington for four years.

Independent studies by residents found much higher costs and fees at nearby country club communities with mandatory membership and bigger drops in home values at communities that require club membership, such as Audubon and Wyndemere, Altieri said.

Glickman questions those studies.

At Kensington, there are three levels of membership. Golf membership is the most expensive, requiring a $25,000 non-refundable initiation fee and annual dues of $9,380, said Erica McEachern, the club’s membership director. For a sports membership, residents pay a $7,500 initiation fee and annual dues of $3,725. For a social membership, there’s a $4,000 initiation fee and dues of $1,945 a year. All members are required to spend $600 a year at the club’s restaurants and dining rooms.

Glickman, who was hired as a consultant at Kensington and drafted the amendments on mandatory membership, said the plan he’s come up with isn’t illegal, as opponents argue. It’s different, he said, than most of the ones courts have overturned in Florida because it only requires new residents to become members - not all residents.

Glickman made a series of presentations on mandatory membership to residents before the vote, Altieri said, and didn’t detail the negatives. When some residents got together to do their own research, they were “shocked and angered” by what they found, he said.

All of the association’s board members are members of the country club. Altieri argues that makes them biased in the outcome of the vote.

Lutz pointed out that three members of the homeowners association were recently re-elected, despite some opposition to mandatory membership.

Both Altieri and Gerus are golf members. They are both on a resign list, but there are dozens of people ahead of them.

The only way to get out of the club at Kensington completely is to sell your house with the membership, or to go through a long “abatement” program that takes several years, Altieri said.

“I’ve been on it for two years and I’ll be on it for another 20,” he said of the resign list.

Even if his name comes up, Gerus, 67, said he can only downgrade to a less expensive membership because of a change made to the community’s bylaws in 2007. Altieri is in the same boat.

In his mid-50s when he first moved to Kensington, Gerus played golf three times a week. But it’s harder to do that as he approaches 70.

“My interest in golf has waned,” he said. “As I play less and less golf, the cost per round becomes excessive.”

Gerus has tried to sell his home for six months, but there have been no offers. He thinks mandatory membership will make it even harder to sell.

Altieri put his home on the market about a year ago, with no luck so far.

Dues continue to rise and the club’s board continues to spend more money, despite the bad economy, making membership more cost prohibitive as dues have to be raised, Altieri said.

“They never cut back,” he said. “That’s the problem.”