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    Dissent surfaces at condo complex

    A group of residents at On Top of the World say they are treated unfairly. The complex's management is suing them.

    By CHRISTINA HEADRICK

    © St. Petersburg Times,
    published July 1, 2001


    A war is flaring up again at On Top of the World, the vast condominium complex just north of Clearwater.

    A dissident group is battling the management of the complex, one of Florida's largest, with about 5,000 units and the population of a small town.

    "We're a committee of correspondence, like in the Revolutionary War," said 81-year-old resident Frank Glaze, referring to the patriots who coordinated communication among the colonies during the American Revolution.

    The dissidents have been discussing concerns at each others' apartments for years. Early this year, residents dubbed themselves the OTOW Owners and Residents Association and began holding monthly open meetings. At first there were a few dozen people. But by May, the meetings had as many as 600.

    Residents voiced concerns about monthly management fees, which can range from about $200 to $300 per unit, and expressed dissatisfaction about how well the condominium complex is maintained. Complaints have ranged from run-down furniture around swimming pools to delays responding to repair requests, residents say.

    They also question how the condominium's board has long been led by the developer, Sidney Colen, his son Kenneth Colen, his daughter Leslee Colen and other people affiliated with the Colens -- most of whom live outside of On Top of the World.

    Some residents are uneasy with the connection between the official condo association and other Colen corporations, such as Parkway Maintenance & Management Co. Those businesses are paid millions by the association to provide services such as maintenance, records show.

    "Many of us think that On Top of the World is badly managed, and that thrives out of a conflict of interest between the Colen family that runs the condominium on behalf of all the residents, at the same time that they run the management company," said Norman Byrnes, a 78-year-old retired real estate attorney from Boston and a leader of the new owners' group.

    Recently, leaders of the new group distributed copies of their meeting minutes to thousands of units at On Top of the World.

    Then the Colens counterattacked.

    The Colens' development company, On Top of the World Inc., and the Colen family-led condominium association sued the OTOW Owners and Residents in early June.

    The lawsuit accuses the group of "using a confusingly similar version of the On Top of the World and OTOW (trademarks) in a deceptive effort to pass themselves off as constituting an official organization affiliated with the plaintiffs."

    The suit seeks to have a judge order the group to stop using the "OTOW" trademark and to pay unspecified damages for tarnishing the corporation's name.

    The development's management also wants a judge to order the dissidents to surrender all their printed materials so that it can be destroyed.

    And finally, the lawsuit demands damages for defaming On Top of the World's management in the published minutes of the OTOW Owners and Residents. Of particular concern are statements about alleged financial improprieties, the lawsuit states.

    Those allegations are contained in complaints that two residents have filed with Florida's Division of Florida Land Sales, Condominiums, and Mobile Homes. The residents allege overcollection of monthly management fees and failure of the condo association to return surplus money to residents.

    Such allegations, says Scott Frick, an attorney for the Colen-led On Top of the World Condominium Association, are "absolutely false."

    Several attempts to reach the Colens were unsuccessful. Frick said he advised them not to speak to the news media.

    Residents named in the Colen lawsuit said last week that they see it as an effort to intimidate them. They disagree that they ever were infringing on On Top of the World's trademark.

    "We're not competing with them," Byrnes said. "Sidney . . . does not appreciate anyone questioning their management. We're just trying to organize residents to protect ourselves."

    Frick said the lawsuit isn't meant to be bullying; the residents are entitled to form any group they want.

    In fact, the dissenters were approached several times to try to resolve the problems before the lawsuit was filed, he said, but refused to stop using the OTOW trademark.

    "We're not trying squoosh anything," Frick said. "We're simply trying to protect our marks and prevent confusion for the residents."

    Chuck Morgan, the leader of the OTOW residents, who was asked by management to change his group's name before the lawsuit was filed, declined to comment on specifics of the lawsuit, upon the advice of an attorney he would not name.

    The recent dispute at On Top of the World isn't the first in this community.

    In the late 1980s, On Top of the World's management went to court with the state's division of condominiums over concerns about the condominium complex's recordkeeping. Among the issues was that the condominium needed to prepare budgets for each of the condominium's buildings and keep minutes of the association's meetings.

    The case was settled, with Sidney Colen agreeing to make some changes in recordkeeping on behalf of On Top of the World's association.

    Residents have reviewed the old lawsuit file, noting that all of the $4.5-million in maintenance fees collected by the condo association in 1987 was paid to Colen-owned companies that had deals to maintain the condominium complex.

    Recently, the residents have tried to figure out just how much profit Parkway Maintenance makes now from the $10.3-million in fees residents pay annually. But they have been unsuccessful.

    "We suspect that it's a much larger amount than we would have to pay any other management company that would be selected through open competitive bidding," Byrnes says.

    The Colens, however, have maintained that the management fees that residents are charged at On Top of the World are competitive with other retirement communities across the state.

    Beyond that, Frick suggested it would be unrealistic to think that any maintenance company would want to disclose its profit margin.

    Ultimately, management is in the hands of residents, who elect their condo association board.

    Frick suggested that residents with complaints run for a seat.

    But condo politics can be daunting.

    In 1992, an attempt was made to replace some of the Colen-led board.

    Sidney Colen harshly criticized would-be challengers in the condominium's official "good news" newspaper and on the community's cable television channel, calling one candidate a "cancer to this community."

    The contenders were trounced.

    Elections in December could bring another challenge, according to minutes of the residents' group. But they may have an uphill road.

    In June, about 75 percent of residents expressed satisfaction with the status quo and rejected spending about $25,000 to hire an auditor to review the finances of the association, Frick said. He did not provide exact figures as to how many people voted.

    Before the vote, Kenneth Colen, who is chairman of the condo association's board, mailed a letter to all the residents dismissing the new group. Colen said that the group has been "agitating and spining half-truths regarding the financial matters of the Association."

    At the same time, Colen touted the quality of the association's maintenance efforts and the value of the management fees that residents pay monthly.

    He also chided residents who he said thrice in the past year have resorted to vandalism, apparently to hasten maintenance projects. For instance, residents of a new "Paradise Reserve" area apparently became frustrated with a security gate that was faulty and broke the gate, Colen wrote.

    "The Association will not sanction rogue and illegal actions by any resident," Colen warned.

    The tone of Colen's report bothered Joanne Golder, a 65-year-old retired real estate agent from Michigan, who moved to On Top of the World 15 years ago with her husband, who has since died.

    "I'm not a rabble-rouser. I'm an owner with an $80,000 or $90,000 investment," Golder said. "I really resent I don't have access to information that I want. . . . We're treated like kindergarteners."

    On Top of the World

    Condominiums: About 5,000 units

    Location: North of Sunset Point Road, straddling Belcher Road.

    Units' average market value: about $44,500.

    Year development began: 1967

    Developer: Sidney Colen

    Claim to fame: Colen pioneered the concept of the condominium, before laws were even created to regulate such developments.

    -- Sources: Times files; Pinellas Property Appraisers Office

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