The Lake County Board of County Commissioners met in regular session on Tuesday, February 22, 2000, at 9:00 a.m., in the Board of County Commissioner's Meeting Room, Lake County Administration Building, Tavares, Florida. Commissioners present at the meeting were: Welton G. Cadwell, Chairman; Catherine C. Hanson, Vice Chairman; Robert A. Pool; G. Richard Swartz, Jr.; and Rhonda H. Gerber. Others present were: Sue Whittle, County Manager; Sanford A. Minkoff, County Attorney; Wendy Taylor, Administrative Supervisor, Board of County Commissioner's Office; and Toni M. Riggs, Deputy Clerk.

Commr. Cadwell gave the Invocation and led the Pledge of Allegiance.

CASE #53-99-4 - AMENDMENT TO PUD ORDINANCE #40-91 - CROSS-TIE RANCH - TIMOTHY W. GREEN/GREEN CONSULTING GROUP INC.

Ms. Sharon Farrell, Senior Director, Department of Growth Management, stated that this particular request was postponed in January, and as of last week, the request has changed dramatically from the original request. The applicants are now requesting permission to add pasture for cattle and horses, as an interim permitted use for Phase III. Ms. Farrell explained that it was a very controversial request, and staff is now able to recommend approval. She noted that, in regards to some discussion on part of the opposition as to the time limit for the agricultural use of that phase, staff is not in a position today to recommend whether there should be a time limit on this use, until such time they develop Phase III. Staff has recommended approval to amend the ordinance. Ms. Farrell noted that the request pertains to 455 acres, with the entire PUD having 690 acres. She stated that staff is comfortable with this particular request, because it allows the owner to utilize the property while he is waiting for the development to move forward.

The Chairman opened the public hearing portion of the meeting and called for public comment.

Mr. Robert Vason, Attorney, addressed the Board and stated that he is appearing on behalf of the owners of the property, Jon and Rita Rackley, and Tim Green, Green Consulting Group Inc. Mr. Vason stated that their initial application was for all general agricultural uses, and there was adamant opposition from some of the 33 homes in the development. He noted that there were 14 letters of opposition in the file. Mr. Vason stated that they have amended the request to limit the use to pasturage for horses and cows, but they are opposed to any time limitation being imposed by the Board. He presented information pertaining to some of the past financial misfortunes of the previous developer and stated that they did not want to get themselves in a situation where they are compelled, or forced, to develop at any time frame, because nobody knows what the future holds, or what the economy will be like in the future. He stated that, if the Board approves the request, he was suggesting that the Board allow the economic forces of the marketplace dictate the timing for the future development. Mr. Vason noted that the Greens and the Rackleys were present to answer questions of the Board.

Commr. Swartz stated that it sounded like that same argument could have been used when the initial development was requested, and it is clear that the marketplace has not worked in favor of the developer the first time through.

Commr. Hanson stated that the property has gone through several owners, and there has been financial problems, but the market is there, and if it was developed, it would sell.

Mr. Vason stated that the initial request was for general agriculture. His client, Mr. Rackley, is in the nursery growing business, and there was some concern that he would be covering the 455 acres with greenhouses. He noted that his Mr. Rackley does have 120 to 140 existing acres on the west side of this development, of which 30 or 40 are in greenhouses, and he has been there since 1971 or 1972. He does grow containerized plants, and he is also in the forestry business. He owns property off of Britt Road, which he has in pasture, and he has many other different agricultural endeavors.

Ms. Leslie Campione, Attorney, addressed the Board and stated that she had filed a Notice of Appearance earlier in this proceeding for a number of residents at Cross-Tie Ranch. Ms. Campione noted that the Minutes of the Planning and Zoning Commission contained in the backup material indicate that it was quite a lengthy meeting, and there was a lot of evidence presented, and the real fear, at that time, was that, if there was no limitation on the types of agricultural uses that could go on that property, then perhaps the owners of Cross-Tie Ranch would be looking at greenhouses. The primary concern was that, with an open door on any agricultural uses, they could be looking at rows and rows of greenhouses where they would have been riding their horses on the 170 acres of open space that was required in this PUD ordinance. Ms. Campione addressed the comment made by Commr. Swartz regarding the property not being market ready when it was approved in the early 1990s, and stated that, prior to the applicant amending their application, she had consulted with a real estate appraiser. When this subdivision was platted initially, the lots were sold very quickly, and the same thing occurred when they opened the second phase. Then there were problems with the developer, and they have seen the values go down as much as ten percent. The appraisers attribute the uncertainty, at this point, to who is going to take care of the common areas. Ms. Campione explained that, if you take out Phase III, then you leave the owners in Phases I and II with the entire burden of maintaining the open spaces and the common areas. She further explained that the higher maintenance common areas are the ones that are in Phases I and II, whereas the open space is primarily in Phase III. She explained that the people would prefer to have the homes instead of the pasture, because with the homes comes 170 acres of equestrian trails that run into Phase III, and with the homes comes additional contributions to their homeowners association fees. It was important for their position to be stated, that they ultimately want to see this property developed according to the master PUD plan. She stated that they were sold an equestrian community, and they paid a premium price for their acreage. Ms. Campione stated that it is a commodity, and as time goes on, this property will only increase in value. She noted that, if the Board had read the Planning and Zoning Commission minutes, there was some confusion, because they were under the impression that the owner of the property was still the owner that filed the application, but they learned that Mr. Rackley had closed on the property the day before the meeting, so he knew about the PUD restrictions and there was no guarantee that, when he came before the Board, it would allow him the opportunity to open up the agricultural uses.

Commr. Cadwell explained that, if anyone was going to have a neighbor, they could not have a better one than Mr. Rackley, because he is one of the most innovative and environmentally sensitive individuals around in his type of business.

Ms. Campione stated that they were well aware of what Commr. Cadwell was stating about Mr. Rackley, and how he is recognized as a leader in his field of expertise.

Ms. Campione showed a diagram of the site, which illustrated the magnitude of the property that is under consideration today, which was Phase III, and stated that they had pointed out at the Planning and Zoning Commission meeting the path that would allow school children to get over to the Seminole Springs School without leaving the subdivision. She noted the open space that was to be dedicated to the Lake County School Board, to be used for a sports field, and stated that there were some features about this PUD that they feel are valuable and should be kept intact. Ms. Campione stated that she was asking the Board to preserve those features of the subdivision. She stated that, in the ordinance as it is written now by staff, it provides that the agricultural uses would be allowed for a period of no longer than five years, and then platting would have to begin in increments of 30 lots. Ms. Campione stated that she was in total agreement with the limitation, and she feels this is a reasonable way to address their desire to obtain an agricultural exemption on the property while they look for a developer, but there is language at the end of the time limitation provision, as follows: Page 3: "2. Time Limitation - If the owner developer does not comply with these provisions the Board of County Commissioners may elect to remove the remaining acreage from the PUD and return the zoning to Agriculture at a density consistent with the densities allowed in the Wekiva River Protection Area." Ms. Campione stated that she feels that this language could result in Phase I and II being entirely inconsistent with the County's Comprehensive Plan. She explained that, if you take the property out, and it reverts to agriculture and it is no longer a part of the PUD, then Phases I and II have densities that are not allowable in the Wekiva.

Commr. Hanson stated that there would be no need to have that particular language in the PUD, because it would just have to be renewed in five years.

Ms. Campione requested that the language she referred to be stricken and that the five years remain intact. She suggested that the agricultural operation be allowed to continue for a five year period, and the language containing the reference to the 30 lots being platted, as noted, be eliminated.

Mr. Vason addressed the Board and asked for clarification of the language in the proposed ordinance. He referred to the Analysis, as reported on Page 2 of the Staff Report, and noted that he has not seen the draft ordinance, but he was under the impression that, if they amended the request to simply add, as an agricultural use, pasturage for horses and cows, and take nothing away from the existing PUD, all of the other issues that were in the draft of the proposed ordinance would go away, with the exception of Ms. Campione's request to impose a time limit.

Commr. Gerber questioned, if the use was added to the PUD, and Mr. Rackley is the owner of the remaining lots, would he be agreeable to pay the monthly maintenance fees for the tennis courts and other commodities.

Mr. Vason felt that several issues were being mixed together today, and those would be the rights of the residents, or the current owners of the property, under the zoning laws of Lake County, and the proprietary rights, the ownership rights of the individual who happens to own either the individual lots, or in this case, the 455 acres of adjoining property. He stated that, although the entire 600 acres is zoned for a PUD, the 455 acres is not contained within the deed restrictions that impose those assessments, or that levy those assessments, so the sole issue before the Board today is the use of the 455 acres.

Commr. Swartz stated that he does not agree with Mr. Vason, with regards to these rights. He stated that the Board adopted a PUD, and in that PUD, it has a number of requirements, and those requirements are the basis on which, if someone bought into that development, he would expect that the County would ensure it to be developed as such and that would include the 173 acres of open space. He further stated that this is a part of the existing PUD and that needs to be honored. The other aspect would be to provide a school access through the recreation open space. Commr. Swartz stated that the 173 acres needs to remain intact, unless they are going to rezone out of the PUD, at which time the Board would be able to look and see whether or not it ought to allow the owners to get out of the PUD given the fact that people base their buying decisions on information provided by the developers and by the PUD. He feels that the 173 acres have to remain intact as part of the PUD, unless the Board was going to eliminate the PUD, and he did not feel that the Board could do that and still be truthful and fair to the people who have bought in there. He stated that the Board really ought to be insisting that the school access provision is met, and there is also a requirement in the PUD for an internal pedestrian/bicycle pathway network, and those requirements have to stay as a part of the PUD. Commr. Swartz stated that he will not vote to walk away from the requirements.

Commr. Hanson pointed out that the owners are leaving more acreage in open space by postponing the development of these lots. She explained that no one is arguing the 173 acres, and it can be fenced, because you can still today have horses in that open space, because this is an equestrian community. She noted that this was very similar to Commr. Swartz's argument and presentation he made a couple of years ago when the Board talked about having open space for purposes other than a golf course.

Commr. Swartz explained that the owners are going to take an area that was designated as open space for the benefit of the residents and turn it into a CUP for agriculture for the grazing of cattle and horses.

Mr. Vason explained that zoning laws, for the most part, are permissive and not mandatory. He stated that you cannot make a developer pull a building permit and develop the property. He further stated that the economic forces of the marketplace dictate those things. He stated that the zoning laws tell a particular owner what he can do with a particular piece of property, if he owns it, but they do not grant to other owners any proprietary rights, with the point being that the existing lot owners in Cross-Tie Ranch own the individual lots, and perhaps pursuant to the deed restrictions, have certain rights in the common areas that are shown in the plats, which are Phase I and Phase II, but they have no proprietary rights, no ownership rights in Phase III, which are the 455 acres that are under consideration today. Mr. Vason explained that, when Mr. Rackley gets to the point where he feels the market will bear development of that additional property, he is bound by the PUD. He stated that they are not asking that anything be taken away from the PUD, and when he feels like it is ready to go forward, then he has got to come in and plat and do all of those things that are required by the PUD, but he does not have to do them today.

Commr. Swartz explained that there were some things that he had to do, such as dedicate the right-of-way and put in the turns lanes, which are a part of the PUD as well. At some point, he is required to provide the aspects that are in the PUD ordinance, and from a zoning standpoint, the owners that buy into a planned unit development have some rights to expect it to develop as it was approved, which is the basis upon which they were shown.

Mr. Vason explained that they are not trying to take anything away from the land owners, but they are simply trying to add, as an additional use, the lowest intensive agricultural use, until such time they feel that the development is ready to go forward. He noted that over the years there have been many other developments in the County that have sat until such time it was determined it was economically viable to go forward.

Discussion occurred regarding the time frame in the existing PUD, which has a provision that it was anticipated that the build out would take six years. It was noted that the entire subdivision is vested.

Mr. Vason explained that the ordinance was passed in 1991, and nine years later there have been 33 homes built out of a potential 210.

Commr. Pool questioned whether, on the Phase III of agricultural zoned properties, the existing property owners have the opportunity to put their horses on that pasture and/or ride over it some day.

Mr. Vason explained that Mr. Rackley owns the 455 acres, and he has proprietary rights, but there is the possibility that, at some point in the future, Mr. Rackley may be inclined to work out some arrangement with the homeowners, but he does not have to do that.

Ms. Farrell explained that, in the past, with the DRIs, staff has done non-substantial amendments to extend the time frames. The County Code provides for non-substantial amendments to DRIs, and this was done at staff level with South Lake, Pennbrooke, and Plantation. She noted that, if it was adding a use that was not previously permitted, then it would come back to the Board at a public hearing. Ms. Farrell stated that there are still a few things in the backup ordinance that will have to be changed, and the language under Time Limitation came forward because of the original request with the greenhouses.

Commr. Cadwell stated that he was concerned that, if the Board tried to use government strong-arm to force this developer to move forward and build Phase III, the whole process will fold again. He feels that giving them the pasture land behind them is the best thing the Board can do. If they are forced to develop the property, and the market is not there, it will fold, and then at some point they can vacate the rest of the PUD, and then the economics spoken about by Ms. Campione does not work at that point either.

Commr. Swartz clarified that he was not suggesting that there could not be a way that this could be done, but he thinks that the request before the Board is not the appropriate way to do it. He discussed the Mount Plymouth golf course, which was a part of the plat of the subdivision, and stated that it was drawn on the plat no differently than it is contemplated that 173 acres of open space is part of this development. Commr. Swartz directed the Board's attention to the language on Page 4 of the original ordinance, which states the following:

IV. Transportation Improvements

• Provide a school access through the Recreation Open Space area. This should be coordinated between the Public Works Department and the Lake County School Board.

VI. Recreation and Open Space

• Recreation and open space requirements for the project will be met by providing a continuous 173 acre open space belt (25% of the total project acreage). The space will provide mulched pathways for pedestrian and bicycle circulation throughout the project as well as areas for equine activity. Approximately 1 acre of land will be designated for active recreation and will contain the appropriate facilities for this use.
• Provide an internal pedestrian/bicycle pathway network to interconnect the proposed neighborhoods and the recreation areas. Pedestrian access to Seminole Springs Elementary School should be considered in the design of this development. Sidewalks can be a part of the network.

Commr. Swartz stated that the fact that there is another owner of that 455 acres, in terms of this PUD, is immaterial. These provisions were put upon the original owners and any subsequent owners. He stated that he was not suggesting that the Board force the developer to try and go forward, but it seems the plan needs to incorporate what the PUD says, because that is the basis which an owner was presented as part of their purchase. He further stated that he feels the Board would make a mistake if it does anything that lessens the chance, or reduces the obligations, for them to be there. Commr. Swartz stated that the owner of the land within the PUD could come back with a plan and show what is required in the PUD, and he would probably be very supportive of voting to allow the balance, which was platted as homes and lots, to be used for that purpose.

The Chairman called for further public comment. There being none, the public hearing portion of the meeting was closed.

Mr. Sandy Minkoff, County Attorney, stated that this is typically an old PUD, and today the County would try and tie dedication requirements to particular phases. Mr. Minkoff stated that, where the PUD currently has mandatory requirements, it may very well be that the County could use Code Enforcement and enforce those requirements. He felt that it is true that, as Mr. Vason had said, the Board cannot force them to develop lots, but to the extent that the PUD says you have to put in a trail by a certain date, the Board could enforce that on this property owner, because his land is subject to the PUD. He clarified that all of the affirmative duties of the developer could be enforced through Code Enforcement. There is a clear obligation legally on the owner/developer of this property to do these things. Mr. Minkoff stated that usually the County uses the risk of taking away the vesting making the project lose its rights, at which point, and in this case, it would be able to develop at a much less density.

Commr. Cadwell reopened the public hearing to allow Mr. Rackley to speak.

Mr. Jon Rackley stated that he owns Phase III of the Cross-Tie Ranch, and he would like to be able to use this property for the grazing of cattle, to reduce the taxes on it, while he is waiting to either sell the property, or develop it himself. Mr. Rackley stated that the common areas in the present Cross-Tie Ranch are not being maintained at this time. He stated that he would like to be able to use this property indefinitely, hopefully less than five years, but if more than five years, he felt that the economic attitude of the area will dictate when it is time to sell or move on with the property. Mr. Rackley stated that he would like the Board's approval to use the land for cattle and/or horses, and for liability reasons, he cannot see that he is obligated to let anyone, from adjacent properties, ride on this property. He noted that the way the laws are written he is absolutely vulnerable to someone being hurt on that land, which is his main reason for wanting to fence it and put cattle on it, in addition to reducing the tax on it. He further noted that he bought the property six weeks ago, and he was aware of the PUD ordinance and that he is bound by all of the conditions of the PUD. He is not asking to be relieved from those conditions other than to use the property for cattle and horses.

Commr. Swartz explained that the ordinance provided that the open space would be there and available for the property owners to use. He stated that, if that land is fenced off, they have no access to it, and it would seem that he would not be in compliance with the requirements of the PUD ordinance. He stated that staff and the owners and/or developers of the property, and possibly representatives for the existing homeowners, need to sit down and determine how to go about creating a situation where Mr. Rackley can use at least the non-open space requirement of the balance of the PUD for his grazing request, and in the interim, create the open space that would comply with the PUD.

Commr. Hanson stated that she can see both sides to the issue, particularly more so when the request was for the nursery, because she believes that the people that live in that subdivision have certain expectations and hopes that it is going to continue to be developed. There is also an economics of scale involved and it needs to be developed, in order to pay for this open space that is now no longer owned by the previous developer, but by an outside entity. The cost of the open space will be born by the lots that are platted and ultimately sold. With that being said, Commr. Hanson stated that she would not have been in favor of having the greenhouses in place, because that would have created a capital improvement that would have been very difficult to move later on, however, the compromise of having the grazing activities for horses and cattle is compatible, particularly since most of that property would be open space for horses and raising of horses.

Commr. Hanson made a motion, which was seconded by Commr. Gerber, for the Board to approve Case #53-99-4, Cross-Tie Ranch - Timothy W. Green/Green Consulting Group, Inc., Tracking #76-99-PUD/AMD, and to set aside all staff requirements and add the ability to allow horses and cattle to graze on Phase III of the subdivision for a period of five years, and at the end of that five years, the applicant would come forward and again request an extension of that requirement, Ordinance 2000-12.

Under discussion, Commr. Pool clarified that it was not his intent that the Board mandate the use of Mr. Rackley's property for this recreational amenity, or grazing, but that there may be some lease or sublease opportunities, or some opportunity to utilize it, that may come forward that would allow for negotiation with the property owners, and he appreciated the concerns expressed for both sides, in terms of private property rights and their future rights. He did feel that the nursery was a bad idea.

Commr. Gerber stated that, in this case, she felt that the Board is offering them some security that, in five years time, the Board will still be looking at the same PUD and the same situation that they bought originally, and they are just adding a five year period of grace for this to occur, in which time hopefully the economy will support having homes out there.

Commr. Swartz stated that, if the motion passes, the Board will lose, for five years, at least the ability to try and straighten out the problems. He stated that there needs to be an active homeowners association created that is a part of this that provides for a method by which funding of the common area of recreation can be done. This would be the ideal time to solve that problem, and this would not be something that would keep Mr. Rackley from having any use of the property. He stated that the Board needs to understand that, when an owner buys a parcel that has been zoned particularly with a PUD and has conditions, he is accepting the requirements. It has nothing to do with taking away his private property rights, because he is actually giving up some of his rights, based on the ordinance that was in place at the time he bought the property. Commr. Swartz stated that he feels the Board is missing an opportunity to deal with this homeowner issue, and to deal with the common areas to ensure that some of the requirements of the PUD are met, which are really a promise from Lake County to the owner of those parcels.

Commr. Hanson stated that, from what she knows of Mr. Rackley, he will take this property and fence it and improve it and make it an asset to the community for a period of time.

Commr. Gerber stated that, as far as the homeowners association goes, they have to actively organize it under Chapter 718 of the Florida Statutes. (Webmaster note: Commr Gerber should have said Chap 720, not Chap 718 which governs condominiums)

Commr. Swartz stated that they have no rights under the existing ordinance, and the ordinance that the Board creates now gives rights to the homeowners association, and in fact, puts obligations and responsibilities on them to share in the upkeep of the various commodities, whether it be storm water, or common areas, and that will not happen unless it is part of this ordinance.

Ms. Campione stated that, in regards to the discussion on the homeowners association, there has been some confusion, because they do have a homeowners association, as it applies to Phases I and II, but that association will not have any authority over Phase III. She stated that they are going to have to look at some other laws to see to what extent that association has enforcement rights with regard to Phases I and II. She was of the understanding that the property owners have expressed desires to have the property developed, even though the Board cannot make Mr. Rackley develop at a certain time.

Commr. Hanson stated that this is probably the only way that the Board can go at this point and not destroy ultimately the PUD.

Ms. Campione stated that she does not agree that, by allowing Mr. Rackley to have an agricultural exemption for five years, it is going to really benefit this subdivision. She does feel that, if the Board had allowed greenhouses, it was going to be a terrible detriment. She stated that, in allowing him to do the pasture, it may prolong the possibility of development.

Commr. Swartz explained that the Board might be prejudging the fact that this property will get an agricultural exemption. It will still be a PUD, and there are parcels in the County that are zoned agriculture that have been denied an agricultural exemption, because of possibly the zoning, or the location, and what the real intent is of the parcel. The Board should not presuppose that Mr. Ed Havill, Property Appraiser, is going to grant an agricultural waiver on this parcel, even if it is rezoned to a CUP under these conditions.

The Chairman called for a vote on the motion, which was carried by a 4-1 vote. Commr. Swartz voted "no".