County Atty's Response to Ms. Willoughby’s email:
1. STATEMENT: First of all so it cannot be overlooked and forgotten if an Appeal on the Land Use Change in the Ravines is scheduled my Husband Fred Catchpole wants to be put on the Agenda so he can speak for more then three minutes. He can provide expert information on more then one level and he is a resident of the Ravines. I would be more then happy to provide you with his credentials if that would help. I have been counseled that constitutionally you cannot refuse.
RESPONSE: The rule is three minutes. It’s up to the discretion of the chair whether to grant additional time. No further response is necessary.
2. STATEMENT: I am so very dissapointed that this application was even accepted by the PC Staff.
RESPONSE: Staff has no discretion to reject an application that satisfies formal requirements.
3. STATEMENT: Covenants & Restrictions written for the Ravines protects that Golf Course unless the majority of residents themselves are in favor of changing it and you all know that is not the case here. In order to change "Highest and Best use" there is legal criteria that must be met. The deciding factor in this application is that you cannot change it if it is not legal. The Covenants & Restrictions of the Community made this an illegal request. Something that basic that is contained in Public Records should have been known by the Staff of and/or the Planning Commission. For you to even entertain this appeal is wrong, and the whole process has been a waste of the Taxpayers money.
RESPONSE: Covenants and restrictions are private and contractual in nature. The County is not a party to them, and therefore has no standing to enforce them. If a building permit application is submitted that complies with all applicable county regulations, county staff is obligated to issue the permit, even if the staff is aware that the proposed construction violates private covenants and restrictions. An application for a land use change is regulatory in nature, and therefore is not limited or made “illegal” by the existence of incompatible covenants and restrictions. I don’t know what “highest and best use” has to do with a land use regulatory matter or with private covenants and restrictions. It’s a concept used by real property appraisers in determining value.
4. STATEMENT: There is also the issue of ownership, although the property is in Bankruptcy it does not change the fact that Bank of America owns the property and no where on that application did they appear, and they won't appear because they know to ask for a Land Use Change on that Golf Course violates the Covenants & Restrictions that they are obligated to comply with. Jacksonville Golf defaulted on their loan, Judge Buttner ordered the property be given to the Bank, and the Bank set an Auction Date of Aug 6th/07. Bankruptcy was filed AFTER that order was issued. Therefore the owner of the property is not Jacksonville Golf, but Bank of America. The Bankruptcy merely stayed the Auction and subsequently the Bank has moved to lift the stay and is scheduled to reclaim the property on Feb 2, 2008 when it does not sell at Auction on 31 Jan. I know it won't sell because the Trustee has already stood up in front of a few hundred residents a couple of months ago and told them he would not accept less then 5 million dollars which it is not worth in mint condition unless of course your intent is to develop it. The Trustee who is in charge of the property while in Bankruptcy CANNOT supercede those Covenants and Restrictions, he is NOT above the Law and it is my opinion that this Trustee is not living up to his ethical obligations in this case but that is another discussion.
RESPONSE: Although I have no personal knowledge regarding the ownership of the golf course property, I am assuming from the foregoing that (i) Jax Golf owned the property, subject to a mortgage held by Bank of America; (ii) the bank commenced a foreclosure action on the mortgage; (iii) the court entered a judgment of foreclosure that established the total amount owed to the bank for unpaid principal, interest, costs and attorney’s fees, and that scheduled a foreclosure sale; and (iv) Jax Golf commenced a bankruptcy proceeding before the sale date. On those assumptions, I will say simply that (a) the judgment of foreclosure would not operate to vest title to the property in the bank (it would only liquidate the amount owed and order a sale by auction to satisfy the debt); (b) even after the foreclosure sale Jax Golf would retain its title to the property for some period of time (by statute it’s ten days, I think) until the clerk issues a certificate of title, during which time Jax Golf could “redeem” the property by paying the judgment amount to the clerk; (c) once the bankruptcy was filed, the automatic stay provisions of federal law would apply to abate all pending lawsuits affecting Jax Golf’s property or its liabilities; (d) the bankruptcy trustee would take possession and control of all of Jax Golf’s assets, including the golf course, for the benefit and protection of Jax Golf’s creditors; (e) the trustee would have tremendous power and authority under federal bankruptcy law to liquidate the assets in order to obtain the highest value for distribution to those creditors filing claims (this would include selling the golf course property, and taking steps prior to the sale to enhance its value, such as seeking a favorable land use and/or zoning change); and (f) assuming that the bank’s mortgage was prior to all other liens on the property, and that the amount owed to the bank did not exceed the value of the property, the bank could apply to the bankruptcy court to have the property released from the automatic stay so that the bank could proceed with the foreclosure sale (perhaps that happened here, and the court decided to give the trustee one shot at selling the property for more than the bank is owed, failing which the stay would be lifted). I do not know whether real property sold at bankruptcy can be released from private covenants and restrictions, as I do not practice bankruptcy law. But I do know that bankruptcy courts have amazing powers to modify or void contract provisions under certain circumstances. Whether those circumstances are present here is unknown to me, but since covenants and restrictions are contractual in nature, therefore I wouldn’t be surprised if they could be altered or abrogated under bankruptcy law.
5. STATEMENT: The Residents of the Ravines should not have to continually battle the further expansion of a PUD that is built out. If you compromise the integrity of PUDs by allowing them to be expanded you are only going to to discourage potential buyers in Clay County from buying into such things. Residents of Eagle Harbor, Fleming Island etc are all watching what you all are doing.
RESPONSE: No response is necessary.
6. STATEMENT: The Collective lost of value to the residents in the Ravines has been estimated between 35 and 46 million dollars with the closure of that course and it will double if it was allowed to be torn up for development.
RESPONSE: No response is necessary.
7. STATEMENT: It is my sincere wish that you extend and ammend the moratorium. As a Real Estate Professional I can tell you if you don't slow down the residential construction you are going to have a negative impact on the value of existing homes for a couple of decades. There needs to be something in place that protects built out PUDs from having to protect themselves every six months or a year against developers. There needs to be an ordinance in place that protects a built out PUD for a specific amount of time, like 20yrs before any applications for Land Use Changes are even accepted for study.
RESPONSE: I don’t know about any moratorium applicable to The Ravines. No further response is necessary.
8. STATEMENT: Your Planning Commmission and Staff need some direction on just what they have an obligation to accept, and what they have an obligation to reject, this should never have come before the Planning Commission.
RESPONSE: All such direction has already been provided by ordinance.
9. STATEMENT: The needs and the rights of the many outweighs the needs and the rights of a few. I urge all of you to put a stop to the circus that Jacksonville Golf has caused this community and do what is right. The right thing in this case would be to refuse to hear the Appeal because the Application itself is illegal.
RESPONSE: By ordinance the Board is obliged to consider a timely appeal from a “no study” decision by the Planning Commission. No further response is necessary.