Steve Phillips-
At the January Board meeting, I reported the HOA had commitments and/or signed consent forms from 601 property owners of record in favor of amending the Declaration of Restrictions to re-classify the existing spillway from Common Area to Area available for Development once the new dam is certified and the existing dam is removed. The Declaration of Restrictions requires that 2/3 of the property owners of record grant their consents to allow amendments to the Restrictions. Currently, 880 lots, tracts, and parcels fall under the requirements of the Restrictions. Two-Thirds of 880 is 587, the threshold to allow amendment of the Restrictions. When the commitments are confirmed as consents, the threshold will be met. As you read this article, I expect that all commitments will have been transferred to consents.
Following some discussion and comments from residents who were in attendance, the Board voted that once the consents are confirmed, the HOA attorney should work with the HOA Administrator to file and record with Cass County any and all documents necessary to memorialize the consent process and amend the Declaration of Restrictions.
The HOA attorney did receive a letter recently from an attorney who represents a resident indicating that their client is of the opinion that Lake Winnebago II residents should not be allowed to grant consents. On the advice and counsel of the HOA attorney, The Board disagrees with this opinion and believes it is without merit.
As a precautionary step, and because of the potential for legal challenge, the Board encourages any property owners that would like to grant consent but have not done so to do so as soon as possible. The HOA office will continue to offer notary services and will work with any property owner to provide notary to them if they cannot come to the office.
Notary hours to sign consent forms at the HOA Office are Monday through Friday, Noon to 7:00. Thank you.
CLARIFICATION ON PLANS MATERIAL IN THE EXISTING DAM - - I have recently been asked to clarify what happens to the dirt from the existing dam once the dam is removed and the new dam and spillway control the water elevation in the combined lake.
As part of the original Development Agreement the Developer agreed to cover all costs associated with removing the existing dam and disposing of the material. Material will be removed to an elevation 12.5 feet below normal water elevation of the lake. In exchange for completing this work at no cost to the HOA there are no stipulations in the Development Agreement on the use of the dirt or how or where the Developer disposes of the material.
The Developer has committed to place the dirt in the existing spillway if the two-thirds consents required to amend the Declaration of Restrictions to allow development in the spillway are achieved. Placing the dirt there is an integral part of the agreement reached earlier this year between the Developer and the HOA Board to construct a roadway at no cost to the HOA to connect the existing community with the new development, create a green space within the spillway, and to make 9 lots available to the Developer. The 9 lots in the spillway are not additional lots, the total number of lots allowed by the Development Agreement remains the same. If the required consents are not achieved the Developer will dispose of the material at a location or locations of his choosing.
-Steve Phillips
FOURTH AMENDMENT OF DECLARATION OF RESTRICTIONS – CONSENT FORM OPTIONS (2020):
Restrictions Amendment Consent Facts
The HOA would like to clarify some of the information that is being handed out throughout the community concerning the Consent to 4th Amendment to Lake Winnebago Subdivision Restrictions. Please see below for actual facts concerning this matter. We thank you for your support.
The Restrictions were last amended in February 29, 1988.
The 1988 Amendments changed the 1974 Restrictions.
Both the 1974 and 1988 Restrictions have a specific article on the “Amendment and Duration of the Restrictions”.
The Restrictions recognize that the HOA will have “By-laws” to establish rules for the conduct, regulation and/or management of its affairs and business.
The By-laws do contain rules for “voting”, proxies, quorums, etc…
The By-laws were last amended February 9, 2013 by a “vote”.
The HOA By-laws do not, and cannot, override, or change the Restrictions.
In 1988, due to challenges by residents on the Restriction amendment process, a legal opinion was obtained from the firm of Freilich, Leitner, Carlisle & Shortlidge. In a 10 page February 5 letter from this legal firm to the HOA, the following statements were made:
“The current Restrictions, may be amended by instruments in writing signed and acknowledged by the record owners of fee simple title to two-thirds of all the lots in the Subdivision. It is not a vote but a consent by a sufficient number of lot owners to amend the Restrictions.”
“Again, amending the Restrictions is not a matter of voting. If property owners agree that the amended restrictions will apply to their land, they will sign counterparts so declaring. Their signatures must be notarized. However, in order for the Restrictions to be amended, the written consents of the record owners of fee simple title to two-thirds (2/3) of all lots in the Subdivision are required. Thus, if an owner holds fee simple title to five lots (5), that owner may consent to the change of restrictions for each of his five (5) lots.
Every multiple owner has the opportunity to approve the amendments for each lot owned.”
The 1988 amendment to the 1974 Restrictions changed the article on “Amendment and Duration of the Restrictions” from “…fee simple title to two-thirds of all the lots …” to “…fee simple title to two-thirds (2/3) of the Lots, Parcels or tracts of land …” .
In order to insure the HOA was properly following the Restrictions, it asked the law firm of Oswald, Roam & Rew, LLC. (OR&R) for its legal opinion regarding the proposed 4th amendment to the Restrictions process. In a November 12, 2019 memorandum from the OR&R firm to the HOA the following statements were made:
“Yes. Consents to change the Restrictions should be obtained from fee simple owners of each lot, parcel, or tract of land with the Subdivision, even if that lot, parcel, or tract of land’s owner, owns more than one lot, parcel or tract within the Subdivision.”
“The process followed when the HOA amended the Restrictions in 1988 in what became the Third Amendment followed this opinion as it was clear by analyzing the consent forms that many individual and entity lot owners sign consents for multiple lots.”
“It is also important to note, during the 1988 Amendment process all property owners who owned multiple properties and the Land Development Company (the predecessor to LW Holdings) were counted in the numerator and denominator of the consents and overall lot count when determining whether the 2/3 requirement is met.”
“Thus pursuant to Article VI of the Restrictions, a property owner is entitled to one consent for each lot, parcel, or tract of land they may own within the Subdivision.”
“Finally, during the 4th Amendment process the HOA should count all lots owned by owners with multiple properties, including lots owned
by the HOA, LW Holdings, developers, builders and other entities, pursuant to the precedent set in the 1988 Amendment process. “
“Yes, Lake Winnebago II property owners may consent to the 4th Amendment to the Restrictions.”
A recent posting by a Resident on the HOA Face Book (FB) page relative to the Restrictions Amendment process is incorrect. The process being used by the HOA for the Restrictions Amendment process is NOT “flawed” as claimed by the resident. The amendment process is not a “vote”. The By-laws cannot, and do not, override or change the Restrictions requirement for amendment by the “consents” of the owners of 2/3’s of the lots, parcels, or tracts of land being granted.
