JBJ
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Post by JBJ on Feb 17, 2011 11:53:27 GMT -6
Last evening at the POA board meeting a number of items were approved, one pertaining to the removal of this deed restriction. The first step in the process will be to ask the membership to vote for or against the initiative. Should the membership vote "yes", we will proceed to determine exactly how to accomplish the effective removal--be it a newly issued deed, a "friendly" lawsuit seeking judicial declaration, or some other way. We just didn't want to spend the money for legal fees until we hear from the members.
Here is what will be on the ballot mailing:
[Deed Restriction
The common property owned and operated by the POA was originally deeded to the POA by the Mobile Chamber of Commerce in the 1950’s. The Deed which conveyed the property to the POA contained language that the property was to be kept and maintained forever as a recreational area for the exclusive use and enjoyment of those persons who shall be and remain members of the POA. As most are aware, the facilities were operated as a “members only” club for many years, but this was changed in the aftermath of Hurricane Frederic when the facilities were opened to the public. A majority of the Board believes that it is in the best interest of the POA to remove or eliminate the enforceability of this language for two reasons—to adjust our governing document to conform to our current reality; and to remove or have declared unenforceable what could be a barrier to receiving public or quasi-public funding/investment for improvements to our property. The removal of the restriction could possibly be accomplished by several means, however, prior to incurring the legal expense for determining exactly how to accomplish it, the board wishes to have a vote of the members indicating support or opposition to the initiative. Accordingly, we ask that you indicate your preference by voting “for” or “against” pursuing this change:
I am _____in favor of
_____opposed to
pursuing a removal of the “members only” deed restriction
[/color] [/color]
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Post by Dennis Knizley on Feb 17, 2011 22:22:33 GMT -6
The original concept of Dauphin Island property ownership is quite unique. Before attempting to alter it, somewhat piecemeal, property owners should be as knowledgeable as possible about it, and only consider deed restriction changes, POA constitutional changes and other changes after evaluating all the benefits it offers to property owners and potential detriments of alteration.
If interested, research the history of the development of ownership of Island property. It will reveal a novel concept that you as a property owner may find so different from other places and so thought out that you may want to be very cautious of eroding, by votes on change, that fail to consider the original concepts of ownership that arguably benefit all property owners.
The POA "members only" deed restriction has and will not prohibit public use of POA property such as the golf course, pool, clubhouse and beaches. Retention of the deed restriction limits the power of those in authority to use these POA properties contrary to the wishes of property owners.
The POA West Surf Beach was given to the Town of Dauphin Island in 2007 by POA vote, in hopes that by providing public access the government may rebuild the beach. That has not happened, but, as a consequence of BP money building two berms and by Mother Nature merging Sand Island, the "old" POA beach is re-emerging.
Public access is not a bad thing, but we did not have to deed away property out of panic and desperate hope that maybe the "government bailout " would come our way and fund an "engineered beach" to the west end . Maybe it will. It did result, however, in every west end Gulf front property owner losing private access to the beach in front of their house, with no more right to the beach at their home than any member of the public. Before the transfer, every property owner had deeded access to the West End Surf Beach. It is now owned by the Town, but will come back to the POA and all property owners in 7 years from the transfer if the Town does not get the Government to build the "engineered beach".
We can have public access without deeding away or voting away property rights unnecessarily that may be misused by others.
Gulf Shores and Orange Beach beachfront condos and homes did not suffer the losing of beachfront ownership there when an"engineered beach" was created , as their manner of ownership of beachfront is totally different from our original concept.
It is a complex discussion, but it may suffice to say be very wary of change in deed restrictions or constitutional provisions without thorough review of the big picture.
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Post by carolinegraves on Feb 18, 2011 0:42:58 GMT -6
Bruce, is the POA going to tell the property owners about the TOWN/DEVELOPER'S MILITARY COMPLEX that is proposed to be put on the POA property and the rest of Dauphin Island before making the Deed changes and changes to the Constitution?
Does the POA want to put all of the DOCUMENTATION ON THIS SITE and the POA website BEFORE MAKING CHANGES TO THE VOTE AND TO THE DEED.
Bruce, as I said in the POA meeting, you cannot get public funds(CIAP money) for the POA property without giving POA Isle Dauphine property to the Town of Dauphin Island and as you know the BP money is private money not quasi-public funding/investment.
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JBJ
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Post by JBJ on Feb 18, 2011 6:50:20 GMT -6
Caroline, as I've said to you repeatedly--most recently at the POA board meeting Wed night--the POA has not agreed to any use of our property in connection with the military system hotel--or anything else. Our constitution --as I'll bet you know--prohibits any long term sell/lease/encumbrance. So if we were to want to do, say, a long term lease--we would have to amend our constitution. Now, as the military project progresses--assuming it does--we might very well be approached about some arrangement involving our property. Will we listen--absolutely!--and if it sounds like something we should do we'll pursue it. But the members will have to approve it--not just the board.
We do need to be very careful as we proceed--we certainly don't want to make changes to any of our governing documents carelessly. But sometimes change is necessary and good. When we circle the wagons to keep bad things out, we also risk keeping worse things in.
Let's keep talking
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Post by carolinegraves on Feb 19, 2011 1:19:09 GMT -6
Bruce, if putting the Town/Developer's Military complex is "necessary and good", then tell the property owners on Dauphin Island, the benefit to them. Bruce, it is time to tell the truth about the documents that you signed?
And as to the Constitution did I not tell you before last years election that what you were planning to do was not according to the Constitution? If you deny, it I will put the email on this site.
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Post by amydune on Feb 19, 2011 13:22:41 GMT -6
@ Caroline - I believe Bruce did show the letter the POA Board of Directors' agreed to and signed. Why so confrontational?
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Post by carolinegraves on Feb 19, 2011 13:56:27 GMT -6
Amy, Do you have a copy of the Letter? If so would you please post it to this forum.
I am just trying to get Bruce show all of the Town/developer's Military Complex documentation to the property owners, before the POA asks the property owners to vote for any Constitutional changes.
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Post by carolinegraves on Feb 23, 2011 0:33:52 GMT -6
Bruce, Are you sure that the removal of the "Members only" deed restriction doesn't have something to do with the Town/Developer' Military Complex???
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JBJ
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Post by JBJ on Feb 23, 2011 6:12:50 GMT -6
Yes--I'm sure that my motivation for supporting the removal has nothing to do with the possible AFRC project.
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glen
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Post by glen on Mar 7, 2011 11:21:24 GMT -6
Bruce, can you please answer the following questions regarding the proposal to remove the "members only" language from the golf course deed: 1. As I understand it, this proposal is being included on the ballot to only obtain the "sense" of the POA membership as to whether it would support or oppose proceding with an action to eliminate that language from the deed. For the proposal to be considered to have passed, will the Board and the POA Constitution require a "simple majority" vote, or a 2/3 affirmative vote of support since the proposal deals with a real estate matter? 2. Section 2.2(d) of our constitution states 60% of the membership votes received are required when voting on real estate matters. However, it is my understanding that that percentage is in error with Alabama State Law and should in fact be 2/3. Can you please clarify? 3. Assuming the proposal is approved to pursue elimination of the "members only" deed language, will the Board then have to subsequently seek a 2/3 approval of the membership at a future "special meeting" prior to implementation of the actual actions to formally revise the deed? I am trying to determine if the membership should anticipate the Board having to return to the membership again for second affirmative 2/3 vote before consumating the real estate action, or if the current ballot proposal will represent the POA members only "bite at the apple".
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JBJ
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Post by JBJ on Mar 7, 2011 20:48:37 GMT -6
Glen,
First let me clarify the 2/3 majority requirement. The Alabama law that governs our type of non-profit corp requires that any amendment to the articles of incorporation be approved by a 2/3 majority of members participating. We somehow were "born" with a constitution rather than the customary articles of inc. and by-laws, but we consider the higher hurdle to apply to amendments to our constitution as it is in fact our incorporating document. The 2/3 rule applies to amendments--not all actions.
So to your question 1. We will not require a 2/3 majority to favor the deed restriction removal in order to consider it as "passed". It will depend upon exactly how we go about removing the restriction as to whether a subsequent membership vote would be required--but my prediction is that would not.
To your question 2.--the 60% majority for actions encumbering property is valid and not in conflict with the State law because is doesn't involve an amendment to the constitution.
To your question 3. I think I covered it above, but it will depend upon exactly how we would go about effecting the restriction removal, and that will require legal research beyond what has been done. But , again, I don't think we would be required to have another membership vote--but we may want to, particularly if the change is beyond the scope of what we've mentioned as likely--e.g. a revised deed.
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glen
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Post by glen on Mar 8, 2011 9:04:43 GMT -6
Bruce: Thanks for the prompt reply. After I read your reply I again looked over the descriptive wording in the ballot initiative to remove the "members only" language from the golf course deed. The present language does not clearly state that this vote could be the property owners only chance to express their support for or opposition against changing the existing deed. I think it would be appropriate for the Board to rephrase the ballot initiative language before the ballots are mailed to more explicitly state that fact so the membership. It would also be helpful to state the circumstances by which a subsequent membership vote on this matter could be required. As now written, very little background information is being provided for the members to decide on how this vote should be made. While this Forum is helpful for interactive discussion, very few POA members are accessing the Forum which means by far the larger membership will be uninformed of the additional information conveyed in these conversations. Thus, expansion of the ballot initiative would be helpful to the POA members to more accurately state that the impending vote could be the members only "bite at the apple" on the deed change proposal.
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Post by sgraves1 on Mar 8, 2011 12:18:32 GMT -6
To JBJ:
Bruce, In regard to the question about approval ( your response provided below) to remove the deed restriction "the exclusive use..." is a simple majority, would you please provide the authority that states only a simple majority is required to change the deed? I am having difficulty in finding that language.
"...We will not require a 2/3 majority to favor the deed restriction removal in order to consider it as "passed". It will depend upon exactly how we go about removing the restriction as to whether a subsequent membership vote would be required--but my prediction is that would not. "
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JBJ
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Post by JBJ on Mar 8, 2011 18:54:14 GMT -6
The constitution --as best I can tell--is silent re. revising the deed, or otherwise removing the "members only" restriction. I recommended--and the board approved--that we ask the membership to indicate agreement/disagreement, so that we would know whether there is support to proceed or not. So we have no specific threshold --it will be a matter of how the board views the results. I would be more comfortable in moving ahead if we receive an abundance of support--and would definitely not want to proceed if we receive the opposite.
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glen
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Post by glen on Mar 8, 2011 20:39:14 GMT -6
Bruce: Your response to sgraves 1 above implies that the Board is attempting to only seek a "sense" of the membership on the"removal of 'members only' deed restriction" and not the final position of the POA membership on this matter . From your response, and the language in the ballot initiative, it is not clear "how" and "how far" the Board will proceed if an affirmative vote is received. For example what do you mean when say the Board intends to use the results of the voting to be "more comfortable in moving ahead" (How far ahead?) and the Board has "...no specific threshold" (What does this mean?). This language implies that the Board would not move immediately to change the deed and would instead return to the membership with a recommendation after the Board decides how to accomplish revision of the deed. It appears the Board does not yet have a plan as to how to best proceed to revise the deed if an affirmative vote is received. For that reason, I again suggest the ballot initiative should be reworded to provide the membership a clear description as to whether the members will be provided a follow-on opportunity to express their views on this matter after the Board has conducted the legal research needed to determine the course of action that would be taken to revise the deed. In short, the ambuity in the ballot initiative language should be eliminated.
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JBJ
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Post by JBJ on Mar 8, 2011 22:25:25 GMT -6
I think the ballot question as written is clear--I don't see any ambiguity. It describes the " members only" restriction in the deed, reminds the members that we have in fact operated in conflict with that restriction for 30+ years, explains why we think that it's time to revise the deed or otherwise remove the effect of the restriction, and asks the members to indicate whether they're for or against the proposal. It's further explained that we don't know exactly what form the restriction removal will take--that will require more legal work that we didn't want to undertake until we got the go ahead from the membership.
One has to predict that the members are supportive of removing the restriction and thereby making the "open to the public for a fee" concept official. I say this because I'm aware of no objection at all to this practice that has been in place for years. If there is a feeling among the membership that we should not be open to the public, one would expect that it would have been--and would presently be--voiced. But it's also possible that the members are tolerant of the practice but against making it "official". We won't know till the votes are in.
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Post by sgraves1 on Mar 9, 2011 15:57:23 GMT -6
Bruce,
In regard to this language "exclusive use and enjoyment of those persons who shall be and remain members of the POA." I asked the question at our last Board meeting about eliminating the word "exclusive" and add some language such as for use of others as so determined. I mentioned that I had asked this question of Cliff last year when discussion started on the elimination of this phrase from the deed and you indicated you were not aware of this. As of now, I have not hear from Cliff. I believe you said that you would discuss this with Cliff, so I look forward to hearing his position.
With the issue of the mandatory dues, voting privileges, member eligibility, meetings and the Utility easement, I do not see the pressing need to ask for an agreement yes or no at this time. Maybe it would be best to only deal with the election and the amendments that which will require a 2/3rds approval by the membership.
I would like to remind all that the logic that is also be used "what could be a barrier to receiving public or quasi-public funding/investment for improvements to our property" was used to accomplish the transfer of the West Surf Beach to the Town of Dauphin island.
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Post by Dennis Knizley on Mar 9, 2011 21:36:38 GMT -6
A concern about the restriction removal is that unfortunately the very language of the ballot proposal suggests the restriction is antiquated, usage of the property has been inconsistent for years with the restriction, and "we who know best" have so determined this to be the right thing. The less involved voting members are swayed by the language, though if it were more objective it may reveal the true sentiment of the property owners. As a consequence the proponents claim a mandate, and change without objectively informed owners comes about. Indeed, they are influenced by the subjective language of the proposal.
I am not involved in or aware of whatever the managers of the POA are trying to do by this deed restriction vote. Unless something is on their agenda, why do we need this change, especially with the suggestive language likely to get the desired result?
The original concept of Dauphin Island property ownership is unique. Those who bought property here relied upon those deeded concepts and they should not be changed without absolute necessity.
Reasonable detailed explanation of why this is needed, and if there is present need for it other than stated in the proposal, may change my assessment. It may also affect others reading this board. I invite such an explanation.
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JBJ
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Post by JBJ on Mar 10, 2011 8:11:26 GMT -6
I wrote the following explanation earlier, and hope that it will help the members here to better understand the rationale for bringing this issue forward.
Re: Removal of "members only" Deed Restriction for POA Property I apologize for not making the proposal clearer--I don't have anyone to blame because I wrote it. But here's another shot at explaining what and why. As was stated--we started out in the 1950's as a private "members only" club and stayed that way till about the aftermath of Hurricane Frederic. About then the club was opened to the public for a fee, and has been that way since. From time to time someone would mention that we were in violation of the deed restriction but it simply never seemed to be considered a big enough problem to solve. So we just operated that way and still are. The impetus for doing something about it now was/is the BP oil crisis. We started hearing that there may be funds for economic recovery from the fines or other sources and we felt the need to get in line for such if it was to be. So far none has come and maybe it never will. But as we thought about whether we would even be eligible, the "members only" language in our deed came up and we considered that to be a drawback if not a show-stopper. So, we already had a reason for changing the language if we could--that being our actual practice not conforming--and now we have another, perhaps more important reason. So we decided to try to get it done but we want the membership to concur--hence the ballot question. Keep in mind--the language change (whatever it turns out to be) would not make the facilities "public" it would simply remove the requirement that they be "members-only". We could still choose to revert to members-only if we ever wanted to, or--more likely--we could continue to be open to the public as we are now but without being in conflict with our deed. So that's the rationale--let's continue to discuss it. Edit/Delete Message
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JBJ
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Post by JBJ on Mar 10, 2011 8:20:55 GMT -6
Bruce, In regard to this language "exclusive use and enjoyment of those persons who shall be and remain members of the POA." I asked the question at our last Board meeting about eliminating the word "exclusive" and add some language such as for use of others as so determined. I mentioned that I had asked this question of Cliff last year when discussion started on the elimination of this phrase from the deed and you indicated you were not aware of this. As of now, I have not hear from Cliff. I believe you said that you would discuss this with Cliff, so I look forward to hearing his position What you are suggesting here is an example of how the deed might be revised--if a revised deed turns out to be the way to remove the restriction. As has been pointed out--we will need to do some more legal research to determine just how to remove the restriction or "render it unenforceable"
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Post by carolinegraves on Mar 10, 2011 18:23:39 GMT -6
Bruce, Is the funding that you are talking about public funds?
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Post by Dennis Knizley on Mar 10, 2011 21:02:40 GMT -6
I wrote the following explanation earlier, and hope that it will help the members here to better understand the rationale for bringing this issue forward. Re: Removal of "members only" Deed Restriction for POA Property I apologize for not making the proposal clearer--I don't have anyone to blame because I wrote it. But here's another shot at explaining what and why. As was stated--we started out in the 1950's as a private "members only" club and stayed that way till about the aftermath of Hurricane Frederic. About then the club was opened to the public for a fee, and has been that way since. From time to time someone would mention that we were in violation of the deed restriction but it simply never seemed to be considered a big enough problem to solve. So we just operated that way and still are. The impetus for doing something about it now was/is the BP oil crisis. We started hearing that there may be funds for economic recovery from the fines or other sources and we felt the need to get in line for such if it was to be. So far none has come and maybe it never will. But as we thought about whether we would even be eligible, the "members only" language in our deed came up and we considered that to be a drawback if not a show-stopper. So, we already had a reason for changing the language if we could--that being our actual practice not conforming--and now we have another, perhaps more important reason. So we decided to try to get it done but we want the membership to concur--hence the ballot question. Keep in mind--the language change (whatever it turns out to be) would not make the facilities "public" it would simply remove the requirement that they be "members-only". We could still choose to revert to members-only if we ever wanted to, or--more likely--we could continue to be open to the public as we are now but without being in conflict with our deed. So that's the rationale--let's continue to discuss it. Edit/Delete Message Fair enough explanation. The funds we hope to get in line for as a result of the BP oil crisis are anticipated from fines, presumably paid to to Federal Government, and being "less private" by removal of the restiction may put the POA, a private entity, in a better position to recieve this government assisstance. I hope that is a fair characterization of why we need the removal. I did note there may be other unidentified sources of funds as well. Is there another basis, other than the longstanding theory that lack of "public access" impeds Federal funds, that was promoted during the West Beach transfer debate, that makes the Board believe there is a reasonably probablity the POA could recieve such funds? Is there new information the POA is privy to that tells us the chances of Government money from BP fines or other sources are enhanced by being "more public" or "less private"? If so, and there are new realistic concerns about the private aspect of the association, let's air them here. If it is the same old concept, the POA leadership is aware there are those for and against it. A question I propose is whether this an extension of a debate about an old issue, or is there something new related to BP fine money and other sources that would give those concerned about relinquishing the "members only" clause a reason to support it? If not, why tamper with it? What would be the benefit to property owners? The questions I raise are to "continue to discuss it" as you suggested, but I do have a concern as why we need to change a very unique design of property ownership without compelling reasons. I understand some just may want to change the entire concept of property ownship on the Island, and their wishes are not without reason.
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JBJ
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Post by JBJ on Mar 11, 2011 6:26:27 GMT -6
Bruce, Is the funding that you are talking about public funds? Don't really know how the funding would be classified. My guess is that it would be somehow underwritten by BP--thru fines or contributions--but it could come some other way.
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Post by carolinegraves on Mar 11, 2011 13:28:56 GMT -6
Bruce What other way would the POA get funding? I know you would not have said that unless there was another way.
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Post by Dennis Knizley on Mar 11, 2011 21:54:30 GMT -6
Last evening at the POA board meeting a number of items were approved, one pertaining to the removal of this deed restriction. The first step in the process will be to ask the membership to vote for or against the initiative. Should the membership vote "yes", we will proceed to determine exactly how to accomplish the effective removal--be it a newly issued deed, a "friendly" lawsuit seeking judicial declaration, or some other way. We just didn't want to spend the money for legal fees until we hear from the members. Here is what will be on the ballot mailing: [ Deed Restriction
The common property owned and operated by the POA was originally deeded to the POA by the Mobile Chamber of Commerce in the 1950’s. The Deed which conveyed the property to the POA contained language that the property was to be kept and maintained forever as a recreational area for the exclusive use and enjoyment of those persons who shall be and remain members of the POA. As most are aware, the facilities were operated as a “members only” club for many years, but this was changed in the aftermath of Hurricane Frederic when the facilities were opened to the public. A majority of the Board believes that it is in the best interest of the POA to remove or eliminate the enforceability of this language for two reasons—to adjust our governing document to conform to our current reality; and to remove or have declared unenforceable what could be a barrier to receiving public or quasi-public funding/investment for improvements to our property. The removal of the restriction could possibly be accomplished by several means, however, prior to incurring the legal expense for determining exactly how to accomplish it, the board wishes to have a vote of the members indicating support or opposition to the initiative. Accordingly, we ask that you indicate your preference by voting “for” or “against” pursuing this change:
I am _____in favor of
_____opposed to
pursuing a removal of the “members only” deed restriction
[/color] [/color][/quote] A suggestion to modify the language of the proposal: After the second sentence... The facilities were operated as "members only" club for many years, but this was changed in the aftermath of Hurricane Fredric when the facilities at the pool, golf course and clubhouse were opened to the public. The West End Beach and other properties remained members only. In 2007 the DIPOA voted to deed the ownership of the three plus miles of West End Beach property to the Town in hopes of receiving funds for beach re-nourishment. Though there has been efforts on the part of the Town, no funds for that purpose presently exists. You could be relinquishing some rights by voting yes on this proposal. Deleting all else, conclude with the last two sentences beginning with "The removal...". What you have then is a probable "no" vote, or at least a closer vote on approval. Easily more suggestive language could insure a "no" vote. Objective language is needed before presenting this to the membership for a vote. Hold off on the vote with this proposal.
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JBJ
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Post by JBJ on Mar 12, 2011 7:44:10 GMT -6
I won't suggest that the question as presented is perfectly worded--different individuals will always have a preference for stating something this way or that. But I think you may be selling the membership short by suggesting that the question may not be fully understood and its implications fully appreciated.
And of course we expect this forum will be a useful means for members to share concerns and perspectives --as you're doing--and to perhaps gain a better perspective on the issue. We will also devote time at our next two board meetings to answer questions and concerns.
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Post by carolinegraves on Mar 15, 2011 15:55:12 GMT -6
Bruce, would the removal of the "members only" deed restriction relate to all property owned by the POA?
For the members who don't know about the other POA other properties, would you please list all properties owned by the POA and their locations on Dauphin Island.
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Post by Dennis Knizley on Mar 15, 2011 20:02:55 GMT -6
Any member reading this thread to gain information relating to the "members only" deed restriction removal vote may also want to review post #62 on the "Proposed Military Hotel/ Complex" thread.
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nancy
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Post by nancy on Mar 17, 2011 16:32:51 GMT -6
Bruce, There are some streets on the west end of the island / south side of Bienville, that the town has placed public parking on. Not the public access street, Raphael Semmes, St Stephens and Sam Houston. There is POA easements on these streets, for the POA use. Has the POA approved the use of these easements for public use? The streets already have the parking spots in place, 4 per street, and public parking signs. What gives?
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JBJ
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Post by JBJ on Mar 17, 2011 16:46:00 GMT -6
It's my understanding that those easements are part of the west surf beach property that was deeded to the town--and therefore they are now "town" easements, not "POA" easements. But I'll confess that I'm not 100% sure of that--I'll check further.
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