Interoffice Memorandum
DATE: November 25, 2024
TO: Mayor Jerry L. Demings and County Commissioners
THROUGH: Jeffrey J. Newton, County Attorney
FROM: Lee Bernbaum, Assistant County Attorney
CONTACT: Lee Bernbaum, Assistant County Attorney
PHONE: 407-836-7320
DIVISION: County Attorney’s Office
ACTION REQUESTED:
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Consider the Special Magistrate’s Recommendation regarding the Windermere Springs Townhomes Preliminary Subdivision Plan (PSP-21-12-374), take one of the following actions, and authorize the County Attorney’s Office to issue a corresponding written decision reflecting the Board’s determination: (1) Accept the Special Magistrate’s Recommendation and implement such recommendation, by approving PSP-21-12-374; (2) Modify the Special Magistrate’s Recommendation and implement such modified recommendation; or (3) Reject the Special Magistrate’s Recommendation.
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PROJECT: N/A
PURPOSE:
I. Property / Background As you have previously been informed, this case relates to real property located at 13651 Reams Road, Orlando, Florida 34786 (the “Property”) owned by Reams Road Windermere Developments, LLC (“Owner”). Owner requested approval of a Preliminary Subdivision Plan - specifically PSP-21-12-374 (the “PSP”) - for construction of 21 single-family townhomes. On August 13, 2024, the Orange County Board of County Commissioners (the “Board”) denied the requested PSP by a vote of 5-2.
The PSP is part of the Windermere Springs Planned Development (“PD”), which PD was approved by the Board in 2018. That approval rezoned the area from R-CE-2 to PD. Owner’s initial PSP application was submitted at the end of 2021 and underwent several rounds of comments and revisions between County staff and the applicant. In May of 2024, the Development Review Committee (“DRC”) unanimously recommended approval of the PSP.
II. FLUEDRA Proceeding / Special Magistrate’s Recommendation After denial of the PSP, Owner filed a Request for Relief pursuant to Section 70.51, Florida Statutes (the Florida Land Use and Environmental Dispute Resolution Act (“FLUEDRA”)). FLUEDRA provides an owner an expedited process by which it can challenge a government’s actions that it contends are unreasonable or unfairly burden the use of the property. This process is in advance of, not instead of, potential litigation.
The Owner’s arguments in support of its Request for Relief included the following: there was no competent substantial evidence (“CSE”) to support denial of the PSP; the only CSE presented was the County Staff report and the DRC report, which both recommended approval; no variances or waivers were requested by the Owner; and, the County previously approved, and Owner therefore had entitlement to, the 21 townhome units when the rezoning and PD were approved in 2018. Owner also alleged the PSP denial was arbitrary and unjust, as evidenced by the approval (on 09/10/2024) of the Patterson PD substantial change, which approved the addition of 94 units for a nearby project on Reams Road.
The County argued that the denial of the PSP was for a valid public purpose and was supported by CSE, including as follows: at the hearing where the PSP was denied, the Board raised several concerns, including inconsistency, insufficient infrastructure, insufficient school capacity, drainage and flooding issues, and traffic congestion; such issues related to Reams Road are well known to the Board; and, the flooding issues in particular threaten the safety of the citizens. The County therefore asserted that the public purposes behind the denial of the PSP are: (a) to require, assure, and promote consistency and compatibility, and to ensure the health, safety, and welfare of its citizens; and, (b) to ensure that development, even development purporting to be consistent with a comprehensive plan, does not occur until the appropriate time and until the necessary infrastructure is in place to support any such development.
In compliance with the statute, a special magistrate proceeding occurred on October 18, 2024, where witness testimony and documentary evidence was submitted to the Special Magistrate. On November 15, 2024, the Special Magistrate’s Recommendation was issued. A copy was previously provided to you and is attached again for ease of reference. Also attached is the documentation the Board was provided for its original consideration of the PSP on August 13, 2024.
The Special Magistrate’s opinion is that the action of the Board in denying the application for the PSP was unreasonable and unfairly burdens the property. As such, the Special Magistrate’s recommendation is that the PSP be put back before the Board and approved.
Pursuant to Section 70.51(21), Florida Statutes, the County must consider the Special Magistrate’s Recommendation, act on the Recommendation (as discussed below), and issue a written decision that describes as specifically as possible the uses available to the Property. Because there are no other available uses, if the County does not accept and implement the Recommendation in full, the Owner will pursue inverse condemnation and Bert Harris Act claims.
BUDGET: N/A