Approximately six (6) months after my reporting began on the 2016 Land Deal (< 10 indepth articles so far), the Big Canoe POA Board issued a response.
Following is my rebuttal. I will respond meticulously to each of the 6 sections in the Board’s Letter. At the end of the Response, is a POLL to receive Property Owner Feedback.
INTRODUCTION
RED SECTION RESPONSE: I have laid forth facts that a reasonable mind could use to claim that individuals and/or entities could be guilty of some of the above, all of the above, or more, or less, or none. I have suggested that these acts probably have occurred in various degrees, regarding various aspects, of the overall 2016 Land Deal. It is possible that the 2015 – 2018 Boards will be found culpable at least of incompetence, but it is doubtful that ALL members of said Boards will be. It is possible that some individuals could be guilty of criminal negligence, or fraud. In regards to the inference made regarding “every Board”, I think it safe to say that over the years some incredibly dumb things have been done, all adding up to get us to where we are today. We will not fully know the scope of the facts until a proper investigation is done; one that includes access to and review of important documents.
Most disturbing in the Board’s Response is that clearly the Attorney’s, Brokers, the Developer, Appraiser, and Norton Agency have a substantial role to play in all that has occurred, but rather than take an honest look at, or address those aspects, whoever prepared the Board’s Response cannot see beyond protecting their own reputation. The lack of objectivity, and the focus on self interest, is evidence that they are disqualified from being a part in any real investigation.
BLUE SECTION RESPONSE: THANK YOU FOR NOTICING! I have worked hard. I have spent Thousand$ of Dollars of my own money, put in an estimated 600+ hours to date, and no one is paying me anything. So I appreciate the acknowledgement that I have put together extensive documentation. I would be dissapointed if that were not noticed. But in seriousness, I want to to bring everyone’s attention to the Board’s following statement….
“Appearances are reality only if supported by the fundamental information…”
I 100% agree with this statement, but the incredible Irony is that while I have provided substantial fundamental information, corroborated by extensive documentation, in the Board’s entire response they offer not a single whiff of evidence in return, only empty rhetoric. I have provided mountains of physical evidence to support rational arguments, and the Board has not provided a single piece of documentation to support their argument, which effectively boils down to, “Trust Us, but DON’T verify.”
1. Ownership of Sconti Point
My first point of response is to guide everyone to the following 1 Page PDf that contains a 1987 Plat of Sconti Point. Review this plat/document before proceeding. It is self evident and further validates the arguments I made in my earlier Article, Sconti Point and Other Illegal Fraud. It also leads us to the 2nd point in this section’s response…..
Second Point: It doesn’t seem that anyone is personally verifying this critical information. We seem to be relying exclusively on the “Old Guard” Attorneys that have failed us time and again. Considering the information in the Plat Link above, nothing short of releasing the FULL May 11 1987 Compiled Plat of Sconti Lake Nine Golf Course PLAT should be acceptable.
Third Point: The statement, “Our attorneys have advised us…. “ doesn’t address the fact that the 1987 deeds did not contain any Metes & Bounds description of the lands conveyed to us. The ONLY legally descriptive identification of the land was the reference to the TRACTS “A”, “B”, “C”, and “D” in the May 11 1987 Compiled Plat of Sconti Lake Nine Golf Course. For LEGAL REQUIREMENT reasons, that complete section of Plat needs to be properly filed at the courthouse so that the legal title of land record be validated and made whole – because ALL land transactions in Georgia require an identifiable description to be included in filings – so that the public can access, view, and verify. It is all well and good to “Trust” – but in the case of a $2,000,000+ land transaction where the previous ownership is in question, it is far from unreasonable to expect that we shouldn’t “Verify”, and also require that verification to include legal and public filing of said verification.
My fourth response to this matter regarding Sconti Point is this… Even if a “2nd Version” of the May 11 1987 Compiled Plat of Sconti Lake Nine Golf Course PLAT were to legitimately exist, and did show that there was another version listing a separate Tract “A” associated to land other than Sconti Point, and that it was indeed true that we never did own Sconti Point – the Board’s Response Letter has failed to address other important issues – for example the fact that both Norton Agency’s Valuation, and CBRE’s Appraisal, both falsely claimed that the land (and not just Sconti Point, but over 100 other acres) was zoned for 6 units per acre, when in fact it was zoned for 5 units per acre. That is a 17% Overstatement of Value based on failure to do a 5 minute Municipal Code Search. How can this Board claim to represent us, and not address this? Even if they feel that going after the additional over-valuation monies (Approx $500,000) in a civil action wasn’t justifiable – aren’t we at least owed an acknowledgement that mistakes were made?
My fifth point is that the Board’s Response also failed to address the separate Sconti Point and Other Illegal Fraud Article allegations of previously conveyed land (Tracts “A” & “B”) referenced in a May 11 1987 Compiled Plat of Valley Golf Course. That land alone would have been valued at close to $1,000,000 as part of the 2016 Land Deal. That is substantial, and NOT easily swept away as an afterthought.
The Board’s partial, simplistic and dismissive response in this section is insulting to the community. We deserve a better explanation in regards to this very important and singularly expensive ($3,640,000) component of the 2016 Land Deal.
Common Property Designation
GREEN SECTION RESPONSE: Article IV; Section 3(h) of the Declarations and Covenants does allow for the 75% voter approval for sale of common properties. But as clearly detailed in my Article, The Wilderness Parkway Fraud this is subservient to a greater 100% requirement by STATE LAW (OCGA § 44-5-60) that disallows any greater restriction on the use or development. The Board’s own response states it “restricts the development….. to a greater extent…” The Board’s attorney, and myself will obviously have to continue to disagree on this point, and ultimately a court would have to decide the matter. But with that said, before they disagreed with me, they agreed. Below is a snippet from Page 1 of an Oct 25 2018 High Gap Presentation on this exact same issue, but related to the High Gap Sale they tried to pull. They know damn well a 100% vote is required…..
With that said, another argument is that Article IX; Section 2 of the Declaration of Covenants and Restrictions of the Big Canoe POA & Big Canoe Company (“DCR”) is still in effect to the best of my knowledge, and requires a 75% Voter Approal to amend the “DCR”. Simply NOT calling this an “Amendment to the DCR”, but “Effectively Amending the DCR” through a new “2018 Restrictive Covenant“…. is still an “Amendment to the DCR”!!! The property owners did NOT VOTE to approve this effective change to Common Property that falls under the “DCR”. It does not matter if it is More Restrictive, Less Restrictive, or neither. The point is that the Declarations of Covenants and Restrictions already has language for how Common Property is dealt with. The 2018 Restrictive Covenant changes that for a portion of our Common Property, and it wasn’t voted on.
The 2018 Restrictive Covenant passed by the POA Board of Directors in November 2018 is an ILLEGAL, and a LEGALLY UNENFORCEABLE DOCUMENT from my perspective of review. Disclaimer: I am not an attorney, andd this is not legal advice nor opinion.
BLUE SECTION RESPONSE: The designation, of Deeding the Land as Common Property, means it cannot be developed. It means we are denied a path towards limited and controlled development of the land in order to pursue a path of debt reduction. It means that we can’t sell the land to a Developer, remembering that this was a path that was researched and recommended by the Land Use Task Force during a 2 year study, and a path that the Property Owners were told was part of “the Plan”.
I gave plenty of examples of the above reccomendation in the Article, The Wilderness Parkway Fraud but let me provide a few more in case you still doubt that developing this undevelopable “Common Property” was clearly in the thinking of the board….
Here is Steve Wilson writing on the subject before the vote:
Also, here is an excerpt from Page 4 of the February 7, 2016 Q&A submitted to the Property Owners before the Vote:
Lastly (for now), here is a Wilderness Parkway preliminary powerpoint presentation (pgs 5 & 8) given to the Board by the Land Use task Force, six months after purchase, 8 months before the Final Report was released. Look at this excerpt from Page 12 of May 11 2017 LUTF Final Report…..
Ask yourself… is it conceivably possible that anyone on the Board could have missed the fact that the Land was being considered for Development? If they were aware that the property had been deeded as Common Property – why didn’t they alert the LUTF? Why was the LUTF allowed to continue for 8 more months working on their final report – which RECOMMENDED Development?
RED SECTION RESPONSE: No one is disputing the fact that the land was NOT designated as “Common Property” prior to our purchasing it. The issue is…. did the Purchase and Sales Agreement (PSA) state that we would buy the land as Common Property? This raises 2 questions:
1) If the land WAS NOT designated in the PSA to be sold as Common Property, why have we accepted it as such? The Valuations, Appraisals and Presentations were clearly presenting it as developable – so why didn’t we get what we paid for? How did the attorneys not catch this? Why are we not challenging this in court? The valuations and appraisals were based upon “highest use Developable Land”. According to the LUTF Report, we were recommended to sell off some of this land as low density residential development – to pay off debt! We were defrauded of our ability to do that!
2) If the land WAS designated in the PSA to be sold as Common Property, how did the Board manage to rise to the level of incompetence to not catch this? How did Norton Agency that was negotiating this for us not notice it – even as both were claiming to the Property Owners it could be developed?
We Need to see the Purchase & Sales Agreement (PSA). The incompetence manifested here disquaifies the Board, or their Attorney, from being trusted to interpret the document for us.
Payment of Property Taxes
ALL of this is such a jumble of nonsense & bs I don’t know where to start. I have spent 6 months analyzing Tax documents, payments and records. This is not worth talking much about, except to say 2 things:
- I am planning on spearheading a Petition to institute a State Level Investigation into the Pickens County Tax Assesor’s Office headed up by Roy Dobbs. This is the One Area in which, at no cost to us and I think with only 500 signatures, we can launch a full blown investigation. I can ASSURE WITH 100% CERTAINTY to everyone reading this that I have enough evidence to get the attention of authorities if we can get the signatures.
- I am puting together a “RECORDS REQUEST” to Jill Philmon to review the Accounting Records referenced in the Red, Blue, and Green sections. Thank You Board for putting in writing that these discrepancies exist. Georgia State Law (O.C.G.A. § 14-3-1602) clearly allows us to inspect Accounting records, and your statement provides plenty of reason to inspect these records. I am going to want to see the DETAILED ACCOUNTING BREAKDOWN done to show those tax & assesment discrepancies. I would find it disturbing to think that the Board entered into a “Reconciliation Agreement” without actually investigating the discrepancies, so I am expecting that there is an actual Accounting Report that totals the two sides of the issue to the penny – as a basis for that reconciliation. The beautiful thing about Math – is that it either Adds Up, or it Doesn’t. Once I finish preparing the request, I will seek out as many Property Owner Signatures as I can get to cosign the request. More signatures means less chance this gets ignored, nad more legal standing inthe event we have to legally enforce our request through court action. Plus we want a team of Community Members with accounting expertise to be part of the review. I think I know some that might be interested.
Blackwell Creek Parcel Ownership
RED SECTION RESPONSE: The red highlited sentence is actually the most disturbing thing in the entirety of the Board’s Response. Before I make my comments, let me throw out an excerpt from the Q & A made to the Property Owners before the Vote:
SO CONSIDERING THE ABOVE – WE HAD A SIGNED PSA – AND OBVIOUSLY IT IDENTIFIED LAND – BECAUSE WE WERE TO OBTAIN CLEAR TITLE ON “SOMETHING”. NEXT EXCERPT….
CONSIDERING THE ABOVE, THEY CAME TO A PRICE BASED UPON VALUATION OF “THE PARCELS IN QUESTION” – AGAIN, WE MUST ASSUME THERE ARE SPECIFIC PARCELS AS IDENTIFIED IN THE PSA. NEXT EXCERPT….
OKAY…. LET’S RECAP WHAT WE’VE JUST LOOKED AT….
1) A Purchase Agreement was signed that identified land we would be buying.
2) It “Locked In” the details firmly enough so that we could vote on the proposal
3) We got a valuation based on “the Parcels in Question”
4) Now they claim the Purchase Agreement was so vague, that we can’t clearly ascertain whether a certain parcel was included or not. I have NEVER in my life heard of such a thing in a real estate contract.
The above adds up to one thing…. we need to see the Purchase Agreement!!!
BLUE/PURPLE SECTION RESPONSE: Why the land was sold to the Water Company doesn’t concern us. What is important is why it was NOT delivered via Deed to The Property Owners Association after we voted for it, and we paid for it. I refer everyone back to my Article, Blackwell Creek Fraud as it spelled out the issues very clearly, and they have not changed.
GREEN SECTION RESPONSE: This is a huge issue, and really goes to the heart of the matter regarding the ENTIRE 2016 Land Deal. First let us look at their exact comment…
“This parcel was not included in the independent appraisal done by CBRE”
So I am going to do this a little bit differently. There are really two response questions to the above….
Question 1: How do you know?
Question 2: Why Not?
The Combined Answer to BOTH of these questions is simple…. Because NOBODY KNOWS what IS and IS NOT included in the sale. And how do I know that? Very simple…. look at the References to Acreages involved in the multitudes of documentation from various parties.
- The 1st Page of the Norton Valuation totals “the property as outlined in the Purchase and Sale Agreement” at 739.683 acres, which is a Very Precise Number one must assume is based upon some very clear selections of property.
- On Page 11 of the CBRE Appraisal Report the “Gross Site Area“ is shown as 731.86 acres, which again is a very precise number – but definitely different than what Norton reported as 739.683 acres for “the property as outlined in the Purchase and Sale Agreement”.
- But on Page 1 of the CBRE Appraisal Report, it clearly says that “the subject property consists of…” and proceeds to list Acreage that totals to 708.44 Acres.
- Interestingly, when I went through the ten (10) Warranty Deeds that were the legal instruments used to transfer the land to us, I could only find 709.65 Acres.
At the legal center of all of this is…. the Purchase-Sales Agreement (PSA). It is the LEGAL BASIS for identifying the land WE, the Property Owners, VOTED to approve purchase of. Did the PSA identify 739.683 Acres, or 731.86 Acres, or 708.44 Acres, or 709.65 Acres?
One thing is for certain… neither the Board, nor the Developer, nor the Attorney’s can be trusted to decipher that document for us. The PSA needs to be publicly released (with any and all revisions) immediately.
PS…on a separate, and new note… when I totalled the PT-61’s associated with the ten (10) filed Warranty Deeds associated with the 2016 Land Deal – they totalled to a Sales price of $6,779,384, which is off from the Total Sales Price we were provided with of $9,400,000 by a sum of $2,620,616. Now, we were told that we were also buying “100 Units of density in Mother Canoe as part of the PSA @ $30,000 per raw unit: $3,000,000“. So that number is off too. I think we need to see whatever contracts and fine legal details are involved in that issue also. All I know is that if I am buying something for $3,000,000 – or $2,620,616 – I would like to understand what it is I am paying for with my Assesment Increases.
Let’s see that PSA, and any additional contracts, sales documents, commission statements, full Rochester & Associates Due Diligence Reports, Title Insurance, Jim Crew’s March 6 2016 Email that supposedly cleared up land ownership on 21 Parcels, missing Plats etc…
Conclusion
RED SECTION RESPONSE: “Our attorneys advised us….”. is not evidence of an investigation. You have provided not one iota of documentation to back up any claims – even though identifiable documentation exists that could answer ALL of these questions.
BLUE SECTION RESPONSE: I will be working with a group of property owners to file a simple Lis Pendens at very little cost that will most likely force the POA to launch a lawsuit if they wish to clear it from legal record. My guess is that they will simply retract it. While I believe that the 2018 Restrictive Covenant is, for all the reasons I have outlined, meaningless and unenforceable – there is always a danger in allowing a thing recorded to go unchallenged. For example…. even in clear title of land ownership, if a person openly starts using your land (say puts up a fence on your property) and it goes unchallenged for over 20 years – the law of Adverse Possession could cause the original land owner to lose the land outside the fence simply because it was open and unchallenged. So we need to move to clear up that legal stain. This is partially how the community has gotten in this mess to begin with… decades and decades of little manipulations have added up to a mountain of legal confusion and financial mess.
GREEN SECTION RESPONSE: Green is often associated with money, and indeed this is the Money Issue, as in there is a lot of money at stake here. My articles on the 2016 Land Deal have laid forth, in the words of the Board’s Response, “extensive documentation” such that men and women of reasonable and sound mind can easily ascertain substantial problems with the 2016 Land Deal.
In the final sentence of their Response, The Board has clearly dismissed the vast majority of the issues, and has seemingly trivialized the remainder. And they have not provided one scintilla of evidence to substantiate their position. By taking this “Trust Us, but Don’t Verify” stance, the Board has clearly indicated that as far as they are concerned, the matter is Closed, Concluded, Done, Swept neatly under the Rug, and they intend to Move On, and the suggestion is clear that so too should the Property Owners.
My Final Response has been to create a POLL for those readers of mine that are Big Canoe Property Owners. In the following POLL, we will seek to take the Opinion Pulse of the Community as to whether they agree with the Board – a) that the matter is now settled; b) whether they believe it is time to collectively seek outside Legal Counsel / Investigation to pursue these issues more fully; c) to see who might want to attend an initial series of Open Community Meetings to begin exploring a path forward.
Following is a Link to the Poll. All responses are confidential. No personal information will be shared. There are only 4 questions. Any Initial Open Meeting will be “Invitation Only” for those that express interest in seriously and legitimately exploring the Legal Remedies Available.
I have no intention of further opening myself up to the naysayers that seem intent only to stir up division, hate, and instigate personal attacks. I have had enough of that. But for those interested, I will make myself available for an A.M.A. (Ask Me Anything) style of initial information sharing meeting. Based on how that meeting goes, we start charting a path forward. Tell your friends and neighbors.
2016 Land Deal POLL
* exclusively for Big Canoe Property Owners
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