By Deborah Goonan, Independent American Communities
Residents of Poinciana, a Census Designated Place governed by one of the country’s largest homeowner associations, were hopeful that a recent Arbitrator’s order to conduct a new election would result in more homeowner representation on their Village and Master Association boards.
Those hopes were crushed on August 1st, when developer AV Homes, also known as Avatar, once again cast thousands of votes for undeveloped, unplatted parcels where homes might be built some day in the future.
The June order requiring a do-over for Poinciana’s annual election was written by Arbitrator Terry Leigh Jones of the Department of Business and Professional Regulation (DBPR). That order was promptly appealed by Association of Poinciana Villages (APV), and subsequently amended to clarify that APV, as election Registrar, must verify that each vote Avatar casts can be traced back to a valid potential homesite, as opposed to a theoretical maximum number of units per acre.
Homeowner-Plaintiff Martin Negron had argued that Avatar had been issued ballots by APV to cast votes for homes on thousands of lots that would likely not be granted construction permits for homes, specifically, parcels of land submerged underwater, or that would need to be set aside with easements for roadways and utilities.
Here is a screen shot of the amended order:
So homeowner candidates quickly reorganized for an August 1st election. APV mailed a copy of the above court order to residents, announcing the new election. APV claims that because of the short time frame, they were unable to mail a copy of the candidate list to all residents prior to the election. Instead, a list of candidates was posted on the Association’s website.
But while election preparations were underway, developer AV Homes (Avatar) was busy filing its own Circuit Court action against APV in Polk County. Avatar requested and ultimately received a Declaratory Judgment stating that, as developer of Poinciana, it is entitled to one vote per unplatted parcel, calculated as the maximum number of allowable homes per acre. (See reference section below for a copy of the court order.)
Judge Donald G. Jacobsen ruled that Amended and Restated Articles of Incorporation for each Village, Comprehensive Development Orders dating back to 1971-1972, and a Binding Letter of Interpretation for Vested Rights dating back to 1983, collectively determine the method of calculating voting interests for AV Homes in Poinciana Villages.
In other words, the Circuit Court ruling contradicts the ruling of DBPR’s Arbitrator. Judge Jacobsen has determined that APV cannot force developer AV Homes to obtain County approvals or official plats to determine the actual number of lots that would be permitted for home construction based on today’s development standards.
So on August 1st, it was business as usual for APV. AV Homes (Avatar) once again cast thousands of votes for undeveloped parcels of land that may or may not become the site of future homes or condos in the future.
And although more than 500 owners and residents showed up to vote – reportedly a bigger turnout than any election in recent history – developer votes continued to far outnumber ballots cast by the true homeowners and residents of Poinciana. (See video below for News 13 coverage of election day in Poinciana.)
Theoretically, if Poinciana could generate a much larger voter turnout from non-developer residents, homeowners could gain control of Village boards and their Master Association (APV).
According to 2010 Census data, Poinciana has a population exceeding 53,000. But in HOAs, each housing unit gets one vote, whether the owner (or designated agent) of that housing unit is registered to vote in a general election or not. In fact, even out-of-town homeowerns get to vote in Poinciana elections, regardless of residency.
In Poinciana, there were roughly 21,000 housing units in 2010, each home with one vote.
According to a report in the Orlando Sentinel, more than 12,000 votes were cast in the August election, but the developer was entitled to cast up 9,900 of those votes.
The Ledger reports that 564 non-developer voters showed up for Tuesday’s hastily planned election. At least one Village election was deemed invalid because a 10% minimum requirement for voter participation was not met.
Can homeowners ever win a Poinciana election?
In order to beat the developer and get homeowners elected to Village and Master Association boards, owners of at least 48% of Poinciana housing units would have to vote against AV Homes developer representatives.
To put that into perspective, consider that U.S. registered voter participation in local elections is notoriously low. City Lab reports that a study by Portland State University found that less than 15% of voters participate in Mayoral elections.
And only 56% of registered voters turned out for the highly contentious 2016 Presidential election, far below the average voter participation rate in other Democratic countries around the world. Poinciana would have to convince a majority of its homeowners that its annual elections are just as important – if not more important – than electing the President of the United States.
And even then, an outcome in favor of Poinciana homeowners is not sure thing, as millions of Americans discovered in several recent close Presidential races.
When one person representing Poinciana – developer AV Homes – holds nearly 10,000 votes, for all practical purposes, it becomes mathematically impossible to transition away from developer control.
Put another way, if the Circuit Court Declaratory Judgment is allowed to stand without legal challenge, AV Homes or any subsequent developer can maintain perpetual control of a majority of Village boards as well as APV, as long as unplatted parcels continue to be owned by that developer.
Some final notes:
As you can see from reference links, APV even shunned State Representative Cortes from entering the election meeting to witness the process. As a reminder to readers, private corporate organizations such as HOAs are not legally obligated to admit non-members to their meetings. That includes elected officials and members of the media, creating yet another insult to the democratic process.
Also, DBPR consideration of Martin Negron’s request for recovery of attorney fees and costs will be delayed. Terri Leigh Jones has been forced to recuse herself from the case, following her discovery that AVP was a defendant to AV Homes’ action filed in Circuit Court while the Arbitration case was still pending. According to the Recusal Order, DBPR must now select a new Arbitrator to hear the Plaintiff’s case for reimbursement of fees.
See relevant news releases:
In state-ordered election, Poinciana homeowners can’t topple developer
New Poinciana elections bring more controversy (The Ledger)
Poinciana (FL) Census Designated Place, Quick Fact (U.S. Census)
Read Avatar’s court order
And the Arbitrator’s Recusal and report of Attorney for APV’s failure to disclose pending court order above
And here is TV13 news coverage from election night on August 1st.