Windermere passes boathouse resolution

The town of Windermere approved unanimously a resolution to officially authorize the town attorney to proceed with a lawsuit filed against occupants of the boathouses.

By Annabelle Sikes
| 10:00 a.m. September 17, 2022

West Orange Times & Observer
News

THE RESOLUTION

Whereas, the Town of Windermere was the landlord under five lease agreements, dated March 1, 2001, for the boathouses located on 3rd Avenue, all of which expired under their terms on February 28, 2021.

Whereas, at its December 8, 2020 meeting, the Town Council extended the lease agreements for a period of 6 months to August 28, 2021 to provide the Town with the opportunity to work with the boathouse tenants to negotiate new lease agreements.

Whereas, at the time of the August 10, 2021 meeting, the Town and boathouse tenants were still discussing a potential new lease agreement and the Town Council further extended the lease agreements from month-to-month with such extension automatically renewing until one party provided the other with a 30-day written notice of termination.

Whereas, on October 12, 2021 the parties had not reached an agreement on a new lease agreement and accordingly the Town Council voted to give the boathouse tenants a 60-day written notice of termination.

Whereas, on March 8, 2022, the Town Council reviewed and approved the 60-day notice of termination for the boathouse leases and the form of the termination notice to be signed by the Mayor and sent to the boathouse tenants.

Whereas, on March 8, 2022, the Town Council voted to leave the five boathouses empty for a “cooling down” period to allow the Town committees and Town Council the time to hold workshops and determine how the boathouses should be used in the future.

Whereas, on March 8, 2022 the Town Council also discussed the need for the repairs to be made by the Town to the boathouses after the boathouses were vacated because of the lack of maintenance and upkeep by several of the boathouse tenants.

Whereas, on April 22, 2022 the Town sent a termination of lease agreement, effectively terminating the boathouse leases on June 10, 2022.

Whereas, the Town Council, Town staff and Town representatives received “trespass notices” dated May 10, 2022 from the boathouse tenants threatening the Town with civil or criminal remedies if staff, agents, and officials of the Town were to enter the boathouses or curtilage which were subject to the expired lease agreements.

Whereas, pursuant to the boathouse leases, the boathouse tenants had until July 11, 2022 to vacate the boathouses and remove building materials, boat hoists and fixtures, provided such removal was not prohibited by law.

Whereas, the boathouse tenants have not vacated the boathouses.

Whereas, to exercise the Town’s rights to retake possession and require the boathouse tenants to vacate the boathouses, Gray Robinson, P.A. (the “Town Attorney”) filed complaints against each non-vacating tenant with the Orange County Circuit Court of the Ninth Judicial Circuit requesting relief from the court including eviction, breach of contract, and ejectment of the boathouse tenants.

Whereas, in response, counsel for the boathouse tenants filed motions to dismiss, claiming in part that the court lacks subject matter jurisdiction to consider the Town’s complaints because the Town Attorney “did not first obtain and attach a resolution of the Town Council authorizing the filing and prosecution of the Complaint.”

Whereas, Section 9.02 of the Town’s Charter provides in part that the “The Town Council shall appoint a Town Attorney, who shall be a lawyer with at least five (5) years of experience and who … (c) When required to do so by resolution of the Town Council, shall prosecute and/or defend any complaints, suits and controversies in which the Town is a party. …”

Whereas, counsel for the boathouse tenants states in the motions to dismiss that the Town’s complaints seeking relief from the court were unauthorized since “No resolution of the Town Council was adopted prior to the commencement of this action or attached to the Complaint that authorized the filing or prosecution of the Complaint.”

Whereas, “resolution” has many meanings, including the act of finding an answer or solution to a conflict, the act of resolving something, the act of solving a problem, the act of determining an action, a determination, etc.

Whereas, the action of the Town Council was to terminate the leases and to leave the boathouses vacant for a period of time to be later determined, after the boathouses were repaired by the Town.

Whereas, actions taken to reobtain possession by way of a court order from the circuit court were consistent with the Town Council’s direction, decisions, intent, and formal motions.

Whereas, in circumstances such as this, Section 9.02 of the Town’s Charter does not require a “written” resolution, it does not require a resolution to be attached to a complaint, and even if determined otherwise, it does not provide that such “resolution” must be in writing and adopted prior to the Town Attorney prosecuting and/or defending any complaints, suits and controversies in which the Town is a party.

Whereas, in an abundance of caution regarding the work previously done by the Town staff and the Town Attorney, and with respect to legal work yet to be performed regarding the boathouses, the Town Attorney recommends that the Town Council adopt a “resolution” in the form argued as necessary by the counsel for the boathouse tenants.

Whereas, the Town Council hereby ratifies all actions previously taken by the Town and the Town Attorney regarding the boathouse tenants and is hereby “requiring and directing” the Town Attorney to prosecute and/or defend any complaints, suits and controversies with respect to the boathouse tenants in line with the decisions and motions made by the Town Council.

Now Therefore, Be It Resolved by the Town Council of the Town of Windermere, Florida:

Section 1. Recitals. The foregoing whereas clauses are incorporated herein by reference and made a part hereof.

Section 2. Prosecution and/or Defense of Complaints, Suits and Controversies. The Town Attorney was previously and is hereby confirmed to continue to be required and directed to prosecute and/or defend complaints, suits and controversies regarding the termination of the five 3rd Avenue boathouse lease agreements and to take, in consultation with the Town Manager, legal actions necessary and consistent with the direction provided by the Town Council that the boathouses be vacated and possession of the boathouses by the Town be reobtained.

Section 3. Ratification. The Town Council hereby ratifies and approves all actions taken by the Town Attorney to prosecute and/or defend complaints, suits and controversies regarding the five 3rd Avenue boathouse lease agreements, including but not limited to, the filing of the five complaints with counts for eviction, breach of contract, and ejectment.

Section 4. Effective Date. This Resolution shall take effect immediately upon its adoption.

The town of Windermere approved unanimously a resolution to officially authorize the town attorney to proceed with a lawsuit filed against occupants of the boathouses at the Wednesday, Sept. 7, Town Council meeting.

The town previously filed lawsuits against each of seven boathouse owners July 15 following the occupants refusal to vacate the structures when their leases ended in June.

However, after the boathouse occupants’ attorney, A. Kurt Ardaman, argued the lawsuits were not valid because of a lack of a signed resolution that had not accompanied the filed lawsuits, the resolution was devised as “an abundance of caution regarding the work previously done by town staff and the attorney, and with respect to legal work yet to be performed regarding the boathouses,” according to the official resolution.

OWNER OPINIONS

The resolution yielded a mass of public comments with scattered applause from the crowd of attendees after each statement.

Mike Lee said he has been a resident in the town for 20 years, and although he has no personal attachment to the boathouses, he does not understand why the town wants the structures. He believes there is something better the town can do with the money.

“Windermere is so unique, this is such a special place, preserving it and the charm is really what you guys’ primary mission is I think … not necessarily to change it,” he said. “I’ve heard a lot of different ideas about what we’re going to do. Well, what we are going to do is change something that has been existing for a really long time and I’m fearful of.”

Town Manager Robert Smith said based on what has been discussed and on the motions made by the Town Council, there has not been a decision on what is going to happen to the boathouses after the litigation has ended.

“That is still something that is yet to be determined, and I think that will be determined a year from the date that it was decided to terminate those leases,” Smith said.

Mayor Jim O’Brien said the decisions were laid out intentionally so the town could determine what the nexts steps in the process would be post boathouse discussion.

Mark Keller also asked why the boathouses are an issue, saying although he does not own a boathouse, he grew up in the town and sat on the Town Council in 1992-93, when the boathouses originally came up in discussion.

“I am upset with the amount of changes this town government keeps doing … we’re going to come and have a confrontation about this at some point,” Keller said. “The government continues to take away our rights. … It’s time for this government to reign in a little bit. You’re out of control.”

Boathouse owner Curt Fraser read a history of several of the boathouse owners and their contributions to the town.

“What you are doing, Town Council, is wrong,” he said. “The people in this town don’t have an interest in this lawsuit, so why are you spending our tax dollars to sue the boathouses owners to take their personal property?”

George Poelker, former chairman of the town’s Historic Preservation Board who resigned at the January Town Council meeting during discussion on the boathouses, said the resolution is “just wrong” and should be voted “no,” referencing several “mistruths” in past boathouse discussion.

“Just start telling the truth,” Poelker said. “There’s nothing wrong with the truth, and whatever we decide, we decide.”

Renee Cingolani said the boathouses have been part of the community and residents’ personal property, and she does not understand why the boathouses are an issue.

“Why does the town want these boathouses?” she asked. “What is the lawsuit about? No answers? … I am so disappointed in you guys. … I just cannot see the purpose. What’s the agenda for taking these away from people that are paid for? … I’m not buying it, and I’m not happy, and I don’t think most of the people in Windermere care enough to have a lawsuit against their neighbors.”

COUNCIL CONCLUSION

Town Attorney Heather Ramos commented on the resolution before council discussion.

“We don’t think it is absolutely necessary, but I would like for Nick (Dancaescu, GrayRobinson representative) to have it when he is arguing against the motions to dismiss … starting next week,” she said.

There were no additional comments, questions or concerns from council members.

Council Member Tony Davit made a motion for approval, and the resolution was passed unanimously.

author

Annabelle Sikes

News Editor Annabelle Sikes was born in Boca Raton and moved to Orlando in 2018 to attend the University of Central Florida. She graduated from UCF in May 2021 with a bachelor’s degree in journalism and a minor in sociology. Her past journalism experiences include serving as a web producer at the Orlando Sentinel, a reporter at The Community Paper, managing editor for NSM Today, digital manager at Centric Magazine and as an intern for the Orlando Weekly.