NOVEMBER 3, 1995

The Lake County Board of County Commissioners met in special session on Friday, November 3, 1995, at 8:30 a.m., in the Board of County Commissioners Meeting Room, Lake County Administration Building, Tavares, Florida. Commissioners present at the meeting were: Rhonda H. Gerber, Chairman; William "Bill" H. Good, Vice Chairman; G. Richard Swartz, Jr.; Catherine C. Hanson; and Welton G. Cadwell. Others present were: Sanford A. Minkoff, County Attorney; Mr. Mike Anderson, Director of Facilities & Capital Improvements; Ava Kronz, BCC Office Manager; and Marlene S. Foran, Deputy Clerk.


Commr. Gerber informed the Board that the special meeting this date was for the purpose of discussing an Arbitrator's Order in regard to a Development Order issued by Lake County approving the Sugarloaf Development of Regional Impact, DOAH Case No. 95-0890 DRI; FLWAC Case No. APP-94-92. She stated that the order provides Lake County with the opportunity to response to said order.

Mr. Sandy Minkoff, County Attorney, stated that the Arbitrator's recommendation was that a Final Order be entered in the State of Florida, Division of Administrative Hearings, finding that the Sugarloaf Development of Regional Impact project be considered vested from the density and intensity provisions of the current Lake County Comprehensive Plan. He stated that pursuant to the agreement, the developer and the Department of Community Affairs are planning to recommend to the Governor and Cabinet the adoption of the Final Development Order with minor changes. He explained that the Hearing Officer, prior to entering the order, was providing Lake County the opportunity to comment, noting that up to this point the County has not participated in the administrative hearing process. He explained that the Arbitrator's decision was consistent with the actions that this Board and staff have taken up to and including the adoption of the Development Order where the issue of vesting was discussed and determined that the Sugarloaf project was a vested project for density and intensity.

At this time, Mr. Minkoff noted that Ms. Cecelia Bonifay, Attorney, McQuire, Voorhis & Wells, P.A., representing the developer of the Sugarloaf project, had been informed on November 2, 1995 that there would be an emergency meeting this date if the request for an extension was not granted by the Hearing Officer.

In response to a question presented by Commr. Hanson, Mr. Minkoff discussed the difference between the current requirements and regulations versus the requirements and regulations in place at the time that the appeal was first brought forward. He explained that, unless the County's LDRs were specifically overruled in the DRI order, the DRI must meet the current regulations. He discussed options available to the Board and explained that a decision not to response would be an option. He explained that he does not believe the County has any issues to litigate in front of the hearing officer; therefore, there would be no legal reason to oppose relinquishing this issue back to the Governor and Cabinet.

Commr. Swartz expressed concern that Lake County has not made its position clear and stated that the hearing officer, in his order providing an opportunity for response by Lake County, has given the Board an opportunity to state its position with regard to the proposed Development Order, and the determination of whether or not to forward the order and relinquish jurisdiction to the Florida Land and Water Adjudicatory Commission. He stated that Lake County should make its position clear by a resolution approved by the Board, signed by the Chairman, and forwarded within the time frames that the hearing officer has provided.

Commr. Cadwell stated that his position that the Sugarloaf project was vested has not changed, and that said project has gone through numerous processes, the County approved the Development Order based on the fact that the project was vested, and that this was not the appropriate time for the Board to change its position.

Commr. Hanson concurred with Commr. Cadwell and stated that the Board previously determined not to be a participant in this process and to come in at this point would undermine the process.

Mr. Minkoff explained that the Arbitrator's finding has settled all of the differences between the Department of Community Affairs and the applicant, and that the hearing officer has no choice but to remand this to the Governor and Cabinet with no recommendation. He stated that the Arbitrator was requesting a procedural response for support from Lake County to send this back to the Governor and Cabinet with no recommendation, and indicate that the litigation was concluded. He noted that the Arbitrator was requesting comment on the procedure rather than on the issues of the case.

Commr. Hanson stated that she feels strongly about the statement that the majority of the Board feels that the Sugarloaf project was not a good project. She stated that she feels that the Sugarloaf project was a good project, and that any response should indicate clearly that it was not an unanimous decision.

Commr. Swartz made a motion, which was seconded by Commr. Good, to adopt Resolution No. 1995-217 for signature by the Chairman to be forwarded this date; and to include the following points: This Board disagrees with the Arbitrator's Order that has been forwarded to the Administrative Hearing Officer in Case No. 95-0890, Sugarloaf Mountain Development, for the following reasons:

1) The conditions of the 1991 Preliminary PUD ordinance itself recognized that Sugarloaf was a DRI and required that the developers go through the DRI process before development could occur. Moreover, the ordinance contained language which said the developers were subject to all applicable provisions of law and that at all times the development of Sugarloaf should comply with the regulations of Lake County;

2) There is no real causal link between the 1991 PUD ordinance and the DRI expenses that have been forwarded by the developer. The DRI process, in this case, began in 1991 and finished in 1994. The developers actually began the DRI process before they got the PUD. Since the developers knew that Sugarloaf was a DRI, the developer's expenditures to get DRI approval should not be said to vest them from the plan that was in effect when they filed the application for DRI approval;

3) The 1991 PUD was inconsistent with the 1977 Plan. The Arbitrator indicates that the Sugarloaf project was not consistent with the County's 1977 Comprehensive Plan; therefore, any reliance on the preliminary PUD zoning was misplaced. The Department of Community Affairs' (DCA) concerns with regard to this are not without merit. Sugarloaf's residential density was 1.7 units per acre. On its face, the County's 1977 Comprehensive Plan restricted development in that part of the County to less than one unit per acre;

4) The developers of Sugarloaf knew that the County was updating its plan, and the proposed amendments to the Plan had actually gone to hearing and been transmitted to the Department of Community Affairs before the County issued Ordinance 9-91, the subject PUD. The Comprehensive Plan was amended again in March of 1993, which was a year before the developers had filed the ADA for the Sugarloaf DRI. Therefore, the developers of Sugarloaf's claim to have pursued DRI approval in the face of these two separate plan amendment cycles in good faith reliance on the 1991 approval would be inappropriate;

5) The 1991 vested rights letter written by Mr. Greg Stubbs was incorrect. His claim that the Preliminary PUD was a final approval was not correct. The approval was not final. The final PUD approval was not even granted until January of 1995. Moreover, the letter totally ignored the rest of the plan policy which said development must have "commenced". A later letter by the County Manager, on March 9, 1994, rescinded the previous letter and substituted a second vested rights letter based on the ordinance adopted in November 1993. The letter was based upon an LDR which did not require proof of reliance. The LDR was later found to be inconsistent with the County's Comprehensive Plan for failing to require proof of reliance to vest;

6) The project was significantly modified in July of 1994. It is distinctly different than previously approved and all lands are not contiguous as was approved in the original Preliminary PUD. Therefore, any vested rights claim would have been lost when the redesigned project was amended in 1994.

The development approvals granted to this project by the Board of County Commissioners have never been consistent with the Comprehensive Plans of Lake County. The original PUD ordinance was inconsistent with the 1977 plan. The PUD and the DRI development orders are inconsistent with the 1977, the 1991, and the 1993 Comprehensive Plans. At the time of the original approval of the Planned Unit Development by the Board of County Commissioners, the developer was aware of and agreed that an amendment to the Comprehensive Plan of Lake County would have to occur before this development could go forward. Such an amendment was never adopted. The DRI development order is not in the best interest of Lake County. It is contrary to the Comprehensive Plan and should not be approved by the Florida Land and Water Adjudicatory Commission. This development, if allowed, would place 2,300 dwelling units in a rural area; the placement of this density would be out of character for this rural area, and would be detrimental to the lifestyle of the rural residents who inhabit the area. The recommendation of the Lake County Board of County Commissioners would be that the Florida Land and Water Adjudicatory Commission reject this development order. If that is not possible, the development order should be amended and returned to Lake County to insure that the provisions of the development are consistent with Lake County's adopted 1993 Lake County Comprehensive Plan.

Commr. Good stated that the issue was the correctness of the actions taken based on County rules. He stated that the motion raises serious questions about whether the County had interpreted the rules correctly, and whether the actions that took place chronologically were built upon correct interpretation of the rules that apply.

Commr. Hanson expressed concern with the accuracy of some of the statements addressed in the above noted motion, and that the owner/developer was not present this date to challenge those statements.

Commr. Hanson made a motion, which was seconded by Commr. Cadwell, to amend Commr. Swartz's motion to state that the majority of the sitting Board disagrees with the Arbitrator's Order.

Commr. Swartz urged the Board to vote against the amendment to the motion and noted that this resolution was a resolution of the Board of County Commissioners just as any previous development orders, preliminary developments, or other actions that the Board has taken.

The Chairman called for a vote on the motion, which failed by a 1 - 4 vote.

Commr. Gerber, Commr. Good, Commr. Swartz, and Commr. Cadwell voted "No".

At 9:25 a.m., Mr. Minkoff informed the Board that a response from the Hearing Officer had just been received indicating approval for an extension of time to respond to the Arbitrator's Order.

Commr. Cadwell expressed concern that the action being considered at this time was the prime reason why the people of Lake County were frustrated with County government. He stated that it was his hope that the Board would review this project and understand what the developers have gone through during this process.

Commr. Hanson concurred with Commr. Cadwell's comments and stated that the public needs to understand that the same thing can happen to the small lot owner as well as the large property owner. She expressed concern that the County was interfering in the process.

Commr. Good stated that this has been a very complicated case and that each case should be judged on its own merit. He stated that this case illustrates the strength of the democratic process and that changes in government allow government to evolve and change to the immediate needs of the people and the values of the community. He stated that he disagrees with some of the interpretations that were made by the Arbitrator, and disagrees that the rules were followed.

The Chairman called for a vote on the motion, which carried by a 3 - 2 vote.

Commr. Hanson and Commr. Cadwell voted "No".

There being no further business to be brought before the Board, the meeting adjourned at 9:30 a.m.