In her June 29, 2007 Baywinds Breeze, Kathryn Stellmack was the author of an editorial calling for the replacement of board members to try to change the things that are wrong with Baywinds. Click here to read her editorial.

A letter from Howard Raab and e-mails from Marvin Levine were also published in the same issue of the Breeze. Click here to read them.

In her August 3, 2007 Baywinds Breeze, Kathryn Stellmack published a response to her editorial from Bernie Amero and included a commentary. Click here to read Bernie Amero's response and click here to read Kathryn Stellmack's commentary.

The following is Bernie Amero's response to Kathryn Stellmack's commentary:

Kathryn,

We have been friends, we are friends and we will continue to be friends despite our differing opinions on a variety of topics. Yes, we must do lunch soon. It is long overdue.

Boy, you have really packed quite a bit in your short commentary. What follows is my attempt at responding to your questions and concerns. Forgive me if I am longwinded but I felt it was necessary.

You asked for "answers - ways to fix things." Well that is exactly what the lawsuit is all about (i.e., trying to "fix things").

Unfortunately, the vast majority of Baywinds residents either don't know or don't care that there is a lawsuit or have come to the knee-jerk, uninformed conclusion that any lawsuit against Baywinds and particularly against individuals is "wrong", a "bad thing" or at least "unnecessary." Well nothing could be further from the truth. In fact, I believe that the current lawsuit is "right," a "good thing" and "necessary" and I will tell you why at the end of this letter.

In my letter to Baywinds residents, I go into great detail describing why replacing "problem" board members at the next election is NOT likely to produce the effect you desire. As I stated, the problem is not so much "who" is on the board but more about "how" many people are on the board.

When Lennar controlled Baywinds, Sharon Caputo, in effect, single-handedly ran Baywinds (i.e., the other two Lennar board members were more figureheads than functioning board members). People may disagree as to how well she managed Baywinds, but I think we will all agree that Baywinds was better managed under Sharon Caputo than under our resident board for the past two years.

I could go on for pages and pages about why a large board is bad, but just try to imagine our country run by ONLY the Senate (i.e., no Executive Branch, no Judicial Branch and no House of Representatives) rather than by the President. Imagine California with 33,871,648 residents having the same vote as Wyoming with 493,782 residents (2000 census figures) and no House of Representatives to compensate for that imbalance in voting power. Imagine the day-to-day operations of Microsoft and Apple run by their boards of directors rather than by Bill Gates or Steve Jobs, respectively.

A large board, particularly a board consisting of members who have an inherent conflict between the interests of their neighborhood constituents and the interests of the other Baywinds residents:

• is less likely to display strong, not to be confused by good, leadership (e.g., Harry Reid vs. George Bush);
• is less likely to be composed of the best Baywinds has to offer (i.e., there could be three, highly qualified people in one neighborhood but only one of these could serve on the board; a small neighborhood may not have anyone qualified who is also willing to run so an unqualified person could end up on the board);
• is less likely to be composed of people with complimentary skills (i.e., the current neighbohood-by-neighborhood selection process prevents Baywinds from selecting a well balanced board because each of us can only vote for one person without knowledge about the skills of any Board member elected in any other neighborhood);
• is less likely to be composed of a full set of requisite skills (i.e., we have engineers, property managers, lawyers, etc. in this community but the current neighborhood-by-neighborhood selection process reduces the odds of selecting board members from each category to odds more akin to a lottery);
• is less accountable for bad performance (i.e., "I'm not happy with the lack of progress but I'm only one out of eleven votes" or "The president decides what gets added to the agenda, not me.");
• etc.

What we need is a 3, 5 or 7 member board elected by the whole community. This would encourage strong leadership; would be more likely to produce a board that was composed of people who were the best Baywinds has to offer; would improve the odds of a board composed of people with a full set of complimentary skills AND, most importantly, would make each member more accountable because there would be fewer of them. (Note: A smaller board would necessitate delegating the workload to committees because there would be too much work for too few board members which would have the secondary benefitial effect of getting more people involved in the community.)

Getting back to the issue of the lawsuit. The purpose of the lawsuit is to right a wrong and by so doing give Baywinds the best chance to have board characterized by strong leadership, effective management and accountability. You may ask "what was so wrong that couldn't be fixed without a lawsuit?" Well, I will tell you.

Florida Statute 720.306 (1)(c) states in part that "an amendment may not materially and adversely alter the proportionate voting interest appurtenant to a parcel . . . unless the record parcel owner and all record owners of liens on the parcels join in the execution of the amendment." Basically, Lennar amended our documents to increase the voting interest of the smaller, Lennar neighborhoods by taking voting interest away from the larger, non-Lennar neighborhoods WITHOUT getting the approval of ALL the residents as required by the above Florida Statute. Even if the community decided to try to reverse what Lennar did, it would be faced with either going against Florida Statutes as Lennar did (i.e., two wrongs don't make a right) or require 100% of the 1082 homeowners to approve of such an amendment (i.e., a virtual impossibility).

First, as can be seen in the table below, the Lennar amendments have reduced the voting interest of owners in neighborhoods NOT DEVELOPED by Lennar from 38% to 25% by increasing the voting interest of owners in neighborhoods DEVELOPED by Lennar from 62% to 75% (i.e., Lennar has rewarded its customers while punishing the customers of the other developers).

Second, these amendments were also adopted to increase the voting interest of the owners of the higher valued homes by decreasing the voting interest of owners of lower valued homes. As can be seen in the chart below, Lighthouse Pointe and Bridgeport homeowners with the lowest priced homes are the big losers with respect to voting interest (i.e., their voting interest on the Board is less than and not proportional to the number of voters) while Sailfish Cove and Heron Cove homeowners with the most expensive Lennar models are the big winners with respect to voting interest (i.e., their voting interest on the Board is greater than and also not proportional to the number of voters).

The photo below was taken from zillow.com, a web site that lists the estimated values of over 70 million homes in the US. As can be seen in this photo, the shift in voting power is from owners of homes with lower property values to owners of homes with higher property values. This was intentional and discriminatory.

A couple of months ago, I met with a number of real estate agents at their request to brief them as to the lawsuit. When I showed them the above charts and particulary the above photograph demonstrating that voting power was taken away from the larger neighborhoods with lower priced homes and given to smaller neighborhoods with higher priced homes, one of the real estate agents said that was a good thing because we don't want "those people" in the lower priced home neighborhoods being in a position to decide how Baywinds is maintained and operated.

Interestingly, that was the expressed motivation back in 2004 of the named Defendants in the lawsuit. In fact, this was also the viewpoint put forth by David Core, the attorney who was advising the Presidents Council at the time, that the amendment that was being considered by the later to become named Defendants (i.e., the Seventh Amendment) would establish "an appointment mechanism that protects smaller neighborhood associations from the possibly disproportionate influence a number of larger associations can have in the master association election process." Click here to see the e-mail David Core sent to John Mikus and John Mikus forwarded to the members of the Presidents Council. The above quote can be found at the bottom of the second page and continues at the top of the third page. Click here to listen to David Core refer to the petitioners as "recreational dissidents" at the April 21, 2005 Baywinds Club Proposal Information Meeting.

You and many others in our community have believed in the past and continue to believe that change can be effected by electing new board members. I call this "Plan A."

Towards the end of last year, a number of my fellow Plaintiffs told me that, once a new Board was elected for 2007, things would change for the better. By March of this year, they all acknowledged that not much had changed and in many ways things had gotten worse (e.g., ongoing contentions between the new and old guard). Now we are coming towards the end of 2007 and you are calling for a change in "problem" Board members (i.e., you are putting all your hopes for change on the 2008 Board). It is more likely than not that, by March of next year, you too will discover not much has changed. According to Benjamin Franklin, "The definition of insanity is doing the same thing over and over and expecting different results."

Kathryn, you challenged me to come up with "answers - ways to fix things." "Plan A" has not been very effective in the past and it is not likely to be very effective in the future.

I and others have chosen to pursue "Plan B." None of us ever wanted to file a lawsuit but the Board left us no choice when it refused to meet with us to discuss this problem and refused to even consider a proposal to resolve the problem. None of us were happy about spending thousands of dollars of our own money and years of our time on this lawsuit. We would have done anything to avoid this lawsuit short of giving up.

As I stated above, the goal of the lawsuit is to right a wrong and by so doing give Baywinds the best chance to have board characterized by strong leadership, effective management and accountability. Due to the fact that the board has always refused to even talk about this problem, the lawsuit became the only way left to advance "Plan B" and truly "fix things."

The Baywinds community wins if either or both "Plan A" or "Plan B" works. "Plan A" supporters should encourage "Plan B" supporters and vice versa. We can achieve what we both yearn for by proceeding on two fronts. Doing so will only increase our chances of success.

Bernie Amero