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December 2003 Objection of The Eagle's Interpretation

of the Eagles Nest Area status by then LMA President, Larry Spelman.  

To the Editor:
I differ from the conclusions set forth in the September-October 2003 issue of the Eagle concerning the Eagles' Nest Area. Your conclusion was that the Eagles' Nest Area "is owned by us. It can probably be used for whatever
purpose property owners might agree upon under Covenant voting rules. And, since its status as a 'preserve' appears not to exist it can be maintained as any other common property in The Landings."

In the course of your argument leading up to your conclusion you stated: "Significantly The Eagle's search  of the 'fine print of the plats' found no reference to 'eagles' or 'preserve' in the descriptions or notes."    I don't know who did the research, but I herewith quote paragraph 29 of the Declaration of Maintenance Covenants and Restrictions on the Commons for The Landings, recorded at O.R. 1372 PG 1233 of the Official Records of Sarasota County:
      "EAGLES' NEST AREA. The property described as 'Tract F' in Exhibit "A"  attached hereto is not subject to the provisions of this Declaration. This property, approximately 7.4 acres in size, is owned by C & M Associates and  is not intended for development. An eagles' nest is located on this property,  and it is the intent of C & M Associates to preserve the site as a nesting  area for eagles. The site may be completely or partially fenced or otherwise barricaded to deter human intrusion. An observation stand, however, may be
constructed on the site to permit viewing of the eagles and their habitat.  The site is not intended as a park for the use of property owners in The Landings. The site is private property, and C & M Associates expressly reserves the right to restrict or prohibit access to the property and to impose and enforce such other restrictions as it may deem necessary to preserve the site. An easement appurtenant to the site for ingress and  egress, utilities, and drainage is hereby granted to and reserved by C & M Associates over and under all private roads in The Landings. All rights granted to or reserved by C & M Associates hereunder and all other rights it  may have pursuant to law may be assigned to and enforced by any other person, association, corporation or entity."
   The word "preserve" is mentioned twice in the above quoted paragraph and the word "eagles," including the use of the word in the caption, is mentioned  four times. Yes, as stated in the above mentioned article in The Eagle, the property was  conveyed in 1987 to Landings Management Association. I also disagree with the opinion expressed by an unnamed attorney in the article in The Eagle that the "restrictions in the Covenants * * * are stated  in terms of the developer's ‘intentions.’  This leaves the developer, and LMA as successor owner, free to abandon such intentions and exercise the  unrestricted rights of land ownership." Boy, you try telling that one to the County, and will LMA be subject to some lawsuit! That may be a strict  grammarian's construction of the wording in the above quoted paragraph, but I
think that a correct reading of that paragraph and the clear intent of the  paragraph is that it was a dedication in perpetuity of the Eagle's Nest Area as an undeveloped preserve area without any possibility of it ever being  developed in any way by the titled owner of the property. In my humble opinion (I am not usually so humble), an application for a permit to develop the Eagle's Nest Area will be denied within one  minute after filing same.
   Larry Spelman, LMA Pres.

 Editor’s Note: Reasonable men, even reasonable lawyers, will differ on interpretation.  Ultimately that would be adjudicated should someone desire to use the Eagle’s Area for some other purpose.

  The editor will argue one point however.  Nowhere in the documents is the area called or designated a “preserve.”  The document’s reference to “preserve” is as a verb “to preserve.”

   We also stated alternate use would not be an easy course.

   Paul Semenec, of Sarasota County Resource Protection Services wrote us how such change in use would have to be handled.  Here is his letter.  Click Here