STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BATTAGLIA PROPERTIES, LTD., )

a Florida limited partnership, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5667DRI

)

ORANGE COUNTY, FLORIDA, a )

political subdivision of the ) State of Florida, )

)

Respondent, )

and )

)

CITY OF MAITLAND, FLORIDA, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 10-13, 1990, in Orlando, Florida.

APPEARANCES

For Petitioner: Miranda F. Fitzgerald, Esquire

Karen M. Chastain, Esquire Maguire, Voorhis, & Wells, P.A.

2 South Orange Avenue Post Office Box 633 Orlando, Florida 32802

For Respondent: Joel Prinsell, Esquire

Assistant County Attorney Orange County Legal Department Post Office Box 1393

Orlando, Florida 32802-1392

For Intervenor: Herbert A. Langston, Jr., Esquire

111 South Maitland Avenue, Suite 200 Maitland, Florida 32751

STATEMENT OF THE ISSUES

This proceeding concerns Lakepointe project, a development of regional impact (DRI) which was approved, with conditions, by Orange County. The developer contests certain of the conditions imposed by the County in its approvals of the DRI and the related rezoning.

More specifically, the Petitioner has alleged that the County acted in an arbitrary and capricious manner, and contrary to the essential requirements of law by:

1. eliminating free-standing commercial uses from the project and requiring that all commercial activities be internalized within office buildings and included within the

   office square footage;

2. imposing a 10,000 square feet per acre limitation on all office development and reducing the total square footage from 805,000 to 756,000 square feet;

3. limiting structures to 35 feet in height;

4. requiring that all office buildings within the project be designed with "residential scale and character";

5. reducing the residential density and limiting the residential development to single family detached units on the north portion of the project in lieu of the multi-family, attached units proposed by Petitioner; and

6. imposing uplands buffer requirements that reduce the amount of acreage available for development.

Petitioner seeks to have the Florida Land and Water Adjudicatory Commission enter a modified development order eliminating these conditions. Orange County and the City of Maitland contend that the challenged conditions are reasonable, given the facts and circumstances surrounding the project, and that they are consistent with the requirements of law.

Certain ancillary issues raised by the parties were eliminated through rulings of the hearing officer during the proceeding.

Petitioner sought to present extensive evidence that the process by which the County arrived at its conditions of approval was improper as it relied unduly on the demands of the City of Maitland whose jurisdictional boundaries abut the project. Petitioner claims that the City and County reached an agreement on the project which was illegal as it did not comply with the provisions of section 163.3171, F.S.

Although some evidence was permitted, and the issue is addressed in this recommended order, the issue is deemed irrelevant. As more fully explained in the conclusions of law, the de novo nature of this proceeding cures the procedural defects claimed by Petitioner.

For a similar reason, the hearing officer denied a joint motion in limine by Orange County and the City of Maitland that would have precluded Petitioner from presenting any evidence related to conditions to which it did not expressly object at the December 14, 1987, public hearing conducted by the County.

PRELIMINARY STATEMENT

On August 10, 1989, Petitioner, Battaglia Properties, Ltd. (BPL) filed its notice of appeal and petition to the Florida Land and Water Adjudicatory Commission (FLWAC), pursuant to section 380.07, F.S. regarding a development

order issued by the County on February 22, 1988, approving Lakepointe DRI. The appeal was timely, as the prescribed 45-day deadline commenced on June 26, 1989, the date that the City of Maitland rendered its development order for the same project. Maitland's order is not on appeal; however, the City was permitted to intervene, without objection, in this proceeding.

The case was referred to the Division of Administrative Hearings (DOAH) for formal section 120.57(1), hearing on October 20, 1989, and, at the parties' request was set for 5-day hearing in May 1990. The hearing was reset for September 1990 with the concurrence of the parties, upon the request of Petitioner in December 1989.

An amended prehearing stipulation (APS) was filed on September 6, 1990.

The stipulated facts are incorporated in this recommended order.

At the hearing BPL presented the following witnesses: Robert Battaglia, President of Battaglia Fruit Co. and general partner of BPL; James Sellen, qualified as an expert in comprehensive planning, zoning and DRI matters; Steven Ruoff, qualified as an expert in real estate market research; Turgot Dervish, qualified as an expert in traffic engineering and traffic planning; William Anthony Wiles, qualified as an expert in land use, comprehensive planning, zoning and DRI matters; and Edward J. Williams (adverse witness), Director of Orange County's Planning Department, qualified as an expert in comprehensive planning, zoning and DRI matters.

Mr. Williams also testified for the County, as did Vera Carter, an Orange County Commissioner.

The City of Maitland presented the testimony of Marilynne Davis, a former City Manager; David Tomek, the City's Director of Community Development, qualified as an expert in land planning and zoning; and Darcy Bone, Mayor of the City of Maitland.

Two neighborhood residents testified jointly for the County and City: Sheri Darmoc and Robert Rawa.

Twenty-five joint exhibits were received in evidence. In addition, BPL's exhibits #1-11 were received; Orange County's exhibits #1-5 were received; and City of Maitland's exhibits marked #6, 9, 10, 11, 12, 14, 15 and 16, were received in evidence.

An eight-volume transcript of the hearing was filed, and after several extensions, granted for good cause, the parties filed proposed recommended orders and (BPL) a memorandum of law on February 1 and February 8, 1991. These proposed recommended orders have been carefully considered, and have been partially incorporated in this recommended order. Specific rulings on each proposed finding of fact are found in the attached Appendix A.

FINDINGS OF FACT

The Parties

1. Battaglia Properties, Ltd. (BPL) is a Florida limited partnership whose mailing address is Post Office Box 770398, Winter Garden, Florida 32787. BPL is owner and developer of the property that is the subject of this proceeding. As such, BPL has standing to initiate this appeal pursuant to section 380.07, F.S. (APS, statement of admitted facts, paragraph 3).

2. Orange County (County) is a charter county and political subdivision of the State of Florida, authorized to issue "development orders", as that term is defined in section 380.031(3), F.S. and section 163.3164(6), F.S. (APS, statement of admitted facts, paragraph 4).

   
   

3. The City of Maitland, Florida (City, or Maitland) is a municipal corporation which has properly intervened in this proceeding. (APS, statement of admitted facts, paragraph 5.)

   
   

   The Site and its Environs

   
   

4. The property that is the subject of this appeal comprises 120.6 acres located north and south of Maitland Boulevard in unincorporated Orange County. The south portion consists of 33.3 gross acres and the north portion is 87.3 gross acres.

   
   

   The City of Maitland surrounds the property on three sides: east, south and west. An adjacent parcel owned by Petitioner, east of the property, lies within the incorporated city limits of Maitland.

   
   

   Together, the parcels constitute a development of regional impact (DRI) located within more than one local government jurisdiction, referred to as the "Lakepointe Project" or "Lakepointe DRI/PD". This appeal, and thus this order, address only that portion of the project located in unincorporated Orange County.

   
   

5. Maitland Boulevard is currently constructed as a four-lane divided, limited access, principal arterial with interchanges at Interstate 4 on the west, and US 17-92 (Maitland Avenue) on the east.

   
   

6. The Battaglia family has owned the property for approximately thirty- five years and has used it for citrus groves.

   
   

7. At the time that the property was purchased by the Battaglias, the area was largely rural. Maitland Avenue (US 17-92) was a two-lane road, and Maitland Boulevard was a dirt road. I-4, approximately 1/4 mile to the west was constructed in the 1960's. Subdivisions and a school were constructed south of Sandspur Road, the southern boundary of the property, in the 1960's and 1970's. Around that time other residences were constructed north of the lakes on the northern boundary of the property.

   
   

   In the early 1970's, an office building was built to the east of the property, on the southside of Maitland Boulevard; and Lake Faith Villas, a multi-family residential development, was built on the northside of Maitland Boulevard. A large Jewish Community Center was developed across from Lake Faith Villas, on the south of Maitland Boulevard.

   
   

   West of the Battaglia parcel, and north of Maitland Boulevard, the property is vacant and has been the subject of various development proposals. West of the Battaglia property, but south of Maitland Boulevard, is a large church complex, Orangewood Presbyterian.

   
   

   On the westside of I-4, north and south of Maitland Boulevard is a 230 acre office development, Maitland Center, zoned in the 1970's and developed in the 1980's.

8. When Orange County first adopted zoning, in 1957, the Battaglia parcel was zoned R-1AA, allowing single-family detached units, not to exceed 4.4 units per acre (du/acre). When the County adopted its comprehensive plan in 1980, the parcel north of Maitland Boulevard was designated for low-medium density residential use (4.4 to 7.5 du/acre). The south parcel was designated for low density residential use (1.01-4.4 du/acre).

   
   

   These designations are reflected on Orange County's 1986 Future Land Use Policy Guide Map, included in the County's comprehensive plan, the 1986 Growth Management Policy (GMP).

   
   

9. The City of Maitland Comprehensive Development Plan (CDP) also addresses the property for planning and informational purposes. Figure 7-1 of the Land Use District Map of the 1986 CDP designates the area as an "undeveloped district" (UD), with the north parcel designated UD 2, permitting single family residential, multi-family, and limited non-residential uses. The south parcel is within a UD 1 district, permitting single family residential and related uses. (Joint Exhibit #10, pp 7-26 to 7-30)

   
   

10. When the Florida Department of Transportation acquired the right of way for Maitland Boulevard, it acquired all access rights, except at specific limited locations where shared access between adjoining properties is necessary. The right of way includes anticipated expansion of Maitland Boulevard to six lanes. Access points to the north parcel of the Battaglia property are at both ends, east and west. Access to the south parcel is at the west only, with a "stubbed-out" road that dead-ends before reaching Sandspur Road, on the southern boundary of the south parcel.

    
    

11. Construction of I-4, Maitland Boulevard, and Maitland Avenue (US 17-

    92) has substantially changed the area from its rural character to one of mixed uses. Although the areas north and south of the property are well-established residential neighborhoods with homes selling between $100,000 and $200,000, the corridor along Maitland Boulevard is not residential in character. No single- family residential subdivision has direct access to Maitland Boulevard. The subdivisions south of the property access Sandspur Road; and those to the north, on the north side of Lakes Faith, Hope and Charity, access small neighborhood streets.

    
    

12. Other events occurred which directly impacted the Battaglia family's use of its property. During the decade of the 1980's, five major freezes occurred: January 1981, January 1982, December 1983, January 1985, and December 1989. A substantial portion of the grove, particularly on the south parcel, was destroyed or severely damaged. Some of the trees also passed the upper limits of their twelve to thirty year productive life span.

    
    

    The Development Plan

    
    

13. In the mid-1980's the owners came to believe that citrus was probably not the best investment they could make on this property any longer, given the grove damage and the development that was occurring in the area. A planning firm was consulted, and a master development plan was created for the property north and south of Maitland Boulevard. [See Appendix B, attached]

    
    

14. The mixed use development, called Lakepointe, was divided into six parcels, as follows, with parcels one and two to be developed in the relatively narrow portion south of Maitland Boulevard, and four through six on the deeper and larger northern portion:

    
    

    Parcel	Land Use	Acreage	Units
    1	office	28.3	240,000 (gsf) gross square feet
    2	multi-family	5.0	50 du (10 du/a)
    3	office/	3.3	35.000	gsf
    	commercial		6.000	gsf
    4	commercial	4.0	12,000	gsf
    5	office	35.0	530.000	gsf
    6	multi-family	12.0	100 du (8.3 du/a)
    	greenbelt	2.8
    	entrance road	1.1
    	lakes	29.1
    		120.6	ac 805.000 gsf office

    
    

    18,000 gsf commercial

    
    

    150 du

    
    

    Under the plan, commercial use in parcel 3 was limited to financial institutions, and in parcel 4 was proposed to be a "quality restaurant". (Joint Exhibit #7; Battaglia Exhibit #2 (a), p. 12-2; APS, p. 6.)

    
    

15. The narrative description accompanying the master development plan proposed a height limitation of 35 feet for those structures to be located south of Maitland Boulevard and for the structures to be located on parcel 6. A 55- foot height limitation was proposed by Petitioner for the office and commercial structures on parcels 3, 4, and 5, north of Maitland Boulevard.

    
    

    The Petitioner also proposed a 50-foot wide uplands greenbelt buffer, located landward of Lake Hope and its adjoining conservation areas, along the northern boundary of parcel 5, to provide additional open space and buffering for the 55-foot buildings that were proposed (APS, pp. 6-7).

    
    

    The offices to be located on parcel 1 were proposed to be of "residential scale", due to the limited depth of the parcel and to minimize detrimental impacts on nearby residential uses. (Battaglia Exhibit #2 (a) p. 12-6)

    
    

16. A 25-foot buffer was proposed around the multi-family residential use proposed for parcel 6. (transcript, pp. 1173-4)

    
    

    Parcel 6, located in the far northwest portion of the property, is also called "Pine Island" for its unique vegetation. Its approximate 12 acres have never been cultivated in groves, but rather have been allowed to flourish in dense pine and oak trees. It protrudes, like the thumb of a mitten, into the

    area between Lakes Hope and Charity, and is separated from the subdivision to the north by a drainage divide densely vegetated with grasses, reeds and other plants associated with the presence of a high water table. (transcript, p.

    1173)

    
    

17. Petitioner's plan for parcel 6 considered the unique character of this portion of the property and proposed attached, multi-family units which would allow maximum flexibility in designing roads and parking and in preserving open space.

    
    

    The Application Process

    
    

18. Due to the more extensive grove damage on the south property, Petitioner initially elected to proceed with development there first, and to continue cultivating its citrus on the north.

    
    

19. Over the objection of the residential neighbors across Sandspur Road, on October 28, 1985, the Orange County Board of County Commissioners approved Battaglia's request to rezone the south parcel from R-1AA to Planned Development (PD) with office buildings and some multi-family units. The office park was permitted access limited to Maitland Boulevard, and the residential parcel was permitted access to Sandspur Road, with no access between the two parcels. The project was called Sandspur Grove PD.

    
    

20. The City of Maitland area homeowners challenged the rezoning and prevailed in Circuit Court. However, the rezoning was reinstated when the Circuit Court was reversed on appeal. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988).

    
    

21. In the meantime, the owners determined to pursue the entire development, and in April 1986, filed an application to rezone the north parcel from R-1AA to PD, and an application for Development Approval/Development of Regional Impact (ADA/DRI). On June 11, 1987, Petitioner filed its application to amend the Future Land Use Policy Guide Map contained in Orange County's comprehensive plan to a classification appropriate for the land uses proposed in the Lakepointe DRI/PD, as shown on the Master Development Plan (APS, p. 5).

    
    

22. A detailed traffic study in support of the proposed Lakepointe Master Plan was included in the DRI application. Orange County and Maitland reviewed and approved in advance the methodologies and assumptions used in the traffic study. The study included traffic growth applicable to all vacant properties in the traffic impact area, including projected trips from 65,000 square feet of commercial retail.

    
    

23. On March 29, 1987, the East Central Florida Regional Planning Council (ECFRPC) issued its final recommendation on the Lakepointe DRI. It recommended approval with conditions, eight of which address traffic, including the recommendation that phase III not proceed until Maitland Boulevard is six-laned, unless monitoring concludes the improvement is not necessary. (Joint Exhibit #8)

    
    

24. The ECFRPC also noted in "issues of local concern" that the project is virtually surrounded by the City of Maitland and would have a significant impact on the City and its citizens, and that the project appears to be inconsistent with the Maitland Comprehensive Plan. The ECFRPC recommended that full review of the project be made at a joint public hearing conducted by the City and County. (Joint Exhibit #8, pp. 47-48)

    The Petitioner did not request such a joint hearing on its application, as provided in Section 380.06, F.S.

    
    

25. On April 9, 1987, the Orange County Development Review Committee (DRC) conducted a technical review of the proposed development. Representatives of the Lakepointe project were present and participated.

    
    

    The DRC is comprised of Orange County staff who review a project for compliance with Orange County regulations and make recommendations to the County's Planning and Zoning Commission. On the basis of the staff's technical review, such recommendations will ameliorate the impacts of the proposed development. (APS, p. 8)

    
    

26. The approved Minutes of the April 9, 1987, DRC meeting reflect a staff recommendation of approval of the Lakepointe project with the following recommended modifications:

    
    

    Extending the 50-foot wide greenbelt area around the entire northerly perimeter of the PD and ending at the Department of Transportation drainage easement (Parcels 5 and 6).

    Prohibiting free-standing commercial uses on Parcels 3 and 4, and requiring the commercial uses to be located internally within office buildings.

    Limiting building height in Parcels 3, 4, and

    6 to three stories (forty feet).

    Limiting building height on Parcel 5 within

    100 feet of adjacent property zoned residential to one story and a maximum of 35 feet, while recommending a 4-story, 50-foot maximum height on the balance of Parcel 5.

    
    

    The approved DRC Minutes of April 9, 1987 recommended approval of 805,000 square feet of office uses, plus an additional 18,000 square feet of commercial uses (internalized within offices), and 150 multi-family dwelling units at the densities requested by Battaglia (10 du/a on Parcel 2 and 8.3 du/a on Parcel 6. (APS, pp. 8-9).

    
    

27. On August 10, 1987, a joint work session was conducted between the Orange County Board of County Commissioners and the Maitland City Council. Representatives from the Petitioner and other citizens were present, but their participation was limited to occasional unsolicited comments.

    
    

    The purpose of the work session was to consider proposals for a joint agreement that would allow municipal jurisdiction over adjacent unincorporated areas for planning purposes pursuant to section 163.3171, F.S. As reflected in the litigation with regard to the Battaglia property, relations between the local governments were strained.

28. The Lakepointe project was specifically discussed, and the group of council and board members appeared to reach some consensus on certain restrictions on the development:

    
    

    1. that any development on the property could not exceed 35 feet in height.

    2. that the attached multi-family units in parcel 6 be replaced with single family detached units at a density of 7.5 units per acre; and

    3. that all residential uses be deleted from the south parcel and replaced with residential scale offices. (Joint Exhibit #17, pp. 17, 23, 27, 28-30, 34-35).

       
       

29. Even though votes were taken at the work session, the outcome was not binding on the board. Resolution of the various issues amounted to policy determinations which provide guidance to the staff. Nonetheless, the session concluded with some self-congratulation that the two bodies had been able to sit down amicably and work out tough problems. (Joint Exhibit #17, pp. 62-63).

    
    

30. Edward Williams, Orange County's Planning Director and a member of the DRC, sent a memo to the DRC on November 11, 1987 outlining the conditions agreed at the August 10, 1987 work session and stating that certain conditions approved by the DRC should be modified and other conditions added. These included:

    
    

    1. No free standing commercial and the internal commercial use limited to 18,000 sq. ft. would not exceed 50% of any building.

    2. Maximum heights would be 35 feet.

    3. The residential uses north of Maitland Boulevard would be single family detached, at

       7.5 du/a.

    4. Multi-family residential uses south of Maitland Boulevard would be eliminated and redesignated as offices.

    5. Building coverage would be no more than 10,000 sq. ft. per acre. The 33.3 acre office tract south of Maitland Boulevard would be limited to 333,000 sq. ft. and the 42.3 acre office tract on the north would be limited to 423,000 square feet.

       (Battaglia Exhibit #9) The DRC adopted Williams' changes.

       
       

31. The Orange County Planning and Zoning Commission (P&ZC), an advisory body to the Board and appointed by the Board, considered the Lakepointe comprehensive plan land use map amendment and the DRI/PD application at two consecutive public hearings on November 19, 1987. The P&ZC accepted the 7.5 du/a single family residence restriction for Parcel 6, but recommended deleting the "detached" requirement, in favor of giving the developer additional flexibility. It also recommended computing the 10,000 square feet per acre office use on a gross basis both on the north and south parcels, rather than on a gross basis on the south and net on the north as the county staff had done.

    The change in computation resulted in an additional 39,000 square feet for offices on the north parcel when the 2.8 acre green belt and 1.1 acre entrance road are included.

    
    

    Other than these, the conditions urged by Edward Williams from the joint work session were adopted. (Joint Exhibit #18, pp. 106-109; Joint Exhibit #19)

    
    

32. The Orange County Board of County Commissioners considered the Lakepointe comprehensive plan amendment, DRI application and PD zoning application at duly noticed and advertised public hearings on December 14, 1987. Representatives of the Petitioner and members of the public were present and participated. (Joint Exhibits #22 and 23; APS, p.4)

    
    

33. Accepting the staff recommendations, but deleting the P&ZC recommended changes, the Board adopted an ordinance amending the Orange County Comprehensive Plan to accommodate the land uses associated with the Lakepointe project. It also approved the project as a DRI, and approved rezoning the north portion of the property from R-1AA to PD. (Joint Exhibits #2, 22 and 23)

    
    

34. On February 22, 1988, Orange County issued a Development Order, pursuant to Section 380.06(14), F.S. memorializing the conditions of development approved by the Orange County Board of County Commissioners on December 14, 1987, for the Lakepointe DRI/PD. (Joint Exhibit #3)

    
    

35. On June 12, 1989, the City of Maitland issued a Development Order pursuant to Section 380.06(14), F.S. for that portion of the Lakepointe project located entirely within the City of Maitland. This order relates only to the access road at the northeast of the project. (Joint Exhibit #4)

    
    

36. The Orange County Board of County Commissioners and the Maitland City Council formally adopted an interlocal agreement at a duly noticed and advertised joint public hearing held on July 10, 1989. (APS, p. 10)

    
    

    The Development Order

    
    

37. The Development Order for Lakepointe DRI consists of approximately 16 pages, plus the legal descriptions of the tracts. Although the order references a 120.3 acre project, the parties have stipulated, and the evidence reflects, that the project is 120.6 acres. (APS, p. 5)

    
    

38. The preamble to the conditions of approval includes this language, which the County argues controls the ultimate disposition of this appeal:

    
    

    * * *

    
    

    * NOW, THEREFORE, BE IT HEREBY ORDERED by the

    County Commission of Orange County, Florida, that, subject to each of the following terms and conditions <<(each of which the County Commission found was necessary for inclusion for the County Commission to approve the Lakepointe DRI/PD project, and none of which could have been omitted or modified if the Developer expected the County Commission to approve the Lakepointe DRI/PD project),>> the Lakepointe Development of Regional Impact is APPROVED pursuant to Section 380.06, Florida

    Statutes (Supp. 1986), and the Land Use Plan for the zoning change on the northern portion of the Property from R-1AA to PD is approved:

    * * *

    (Joint Exhibit #3, p.3, emphasis added)

    
    

    * Note: In the above quotation, language added to the statute

    is within the <<>>; deleted language is within the [[]].

    
    

39. The order adopts the conditions of approval recommended by the ECFRPC, including the conditions regarding traffic impacts and monitoring/modeling. (Joint Exhibit #3, pp. 9-11)

    
    

40. The order requires development in accordance with the DRI/ADA, and supplemental information, except as modified by the specific conditions of approval. (Joint Exhibit #3, p. 7)

    
    

41. The relevant specific conditions (those contested in this proceeding) provide as follows:

    
    

    * * *

    II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION

    (A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED.

    * * *

    
    

    * 2. The greenbelt (minimum 50-feet wide) shall be continued around the northerly perimeter

    of the PD, <<particularly along the northwestern boundary of Parcel 6 extending to Lake Charity and ending at the Department of Transportation ("D.O.T.") drainage right-of-way area.>> The greenbelt shall be located outside of

    designated conservation areas.

    A minimum 25-foot wide landscape buffer shall be provided around the balance of the

    perimeter of the PD (<<i.e.>> southerly perimeter of the PD situated immediately north of

    Maitland Boulevard). A reduction in the

    25-foot buffer along Maitland Boulevard may be considered by Orange County staff at the development plan submittal stage (<<e.g.>>, reduced buffer width with wall screening). Specific landscape material for the entire buffer area shall be provided on the

    development plan submittal for County approval.

    3. <<Free-standing commercial structure(s) shall be prohibited.>> The accessory or support commercial shall be located within

    the office buildings(s). The commercial uses are intended to serve the employees of the office development. The total professional office square footage shall include the square footage for any commercial uses, and the commercial use shall not exceed 18,000 square feet and no more than fifty percent (50%) for two (2)-story structures.

    * * *

    7. <<Maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include

    the appropriate landscaping elements.>>

    Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum).

    * * *

    14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. <<This residential development shall be low-medium density with a cap of 7.5 single family

    detached units per acre.>> (Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.)

    * * *

    1. <<Building coverage for office on the northern portion of the Property shall not be more than 10,000 square feet per net acre. The 33.3 acre office tract located south of

       Maitland Boulevard shall be limited to 275,000 square feet, while the 42.3 acre tract located north of Maitland Boulevard shall be limited to 481,000 square feet, for an aggregate total of 756,000 square feet.>>

       * * *

       (Joint Exhibit #3, pp. 3-7, emphasis added.)

       
       

       • Note: In the above quotation, language added to the statute

         is within the <<>>; deleted language is within the [[]].

         
         

         The Conditions in Controversy

         
         

         1. Buffering the Northern Perimeter

            
            

42. In its application Petitioner proposes a height of 55 feet for office buildings on the north parcel and a 50 foot uplands buffer landward of all conservation areas adjoining the offices on the northern boundary of parcel 5.

    The DRC reduced the height to 50 feet, for parcel 5, except within 100 feet of property zoned residential.

    
    

    Along the northern perimeter of parcel 6 (the residential use) Petitioner proposed a 25-foot natural buffer. The DRC originally had no problem with the residential density, but recommended extending the 50-foot upland buffer proposed for Parcel 5 around the northern perimeter of parcel 6.

    
    

    Petitioner contends that the 50 foot buffer is unnecessary if the office height and residential density are reduced.

    
    

43. Buffers are required on any developer's land. In both Orange County and the City of Maitland, buffers are negotiated in PD's, based on existing factors and circumstances.

    
    

    The lakes along the northern perimeter of the property are between 1,000 to 2,000 feet across and are not effective light or noise buffers. The residential parcel (parcel 6) is separated from the existing subdivision by only a drainage canal and low vegetation.

    
    

44. The 50-foot buffer between parcel 6 and Druid Hills (the existing subdivision) is not unusual. Buffer widths in PD's in the county range between

    5 and 100 feet. In another case, the County required Buckingham at Lakeville to include a 50-foot wide buffer between residential uses of differing densities.

    
    

    In a case cited by Petitioner, Fairbanks Office Building, on Fairbanks Avenue in unincorporated Orange County, the developer, was required to provide only a 10-foot landscape buffer with a 6-foot wall, separating 46 foot high offices from an existing residential development. The wall, however, and the fact that the office park developer negotiated with the adjacent property owner to provide water and sewer service made that case unique and distinguishable from Lakepointe. (Transcript, p. 1132)

    
    

45. No 50-foot buffer is required by the county for the southern boundary of the south parcel as the office uses on that parcel are separated from the single family residences by Sandspur Road and by Petitioner's proposed wall, berming and landscaping. Different requirements for the north and south perimeter are justified and appropriate.

    
    

    1. Prohibition of Free-Standing Commercial Structures

    
    

46. Although there are well-established single family neighborhoods north and south of Maitland Boulevard between I-4 and Maitland Avenue (U.S. 17-92), those neighborhoods are separated from the Maitland Boulevard corridor by the lakes on the north and Sandspur Road on the south. The corridor itself is not residential in character. No single family residential subdivisions directly access Maitland Boulevard.

    
    

47. From the beginning of the County's review of the project, however, the free-standing commercial uses proposed by the developer have been eliminated as inconsistent with the character of the portion of Maitland Boulevard east of I-4 and west of Maitland Avenue. The planning and zoning staff have sought to prevent strip commercial development of the type that has proliferated along other principal arterial roads, notably State Road 436, U.S. 17-92 and State Road 434.

    Free-standing commercial on parcels 3 and 4 would be the only uses of that type in this area of the Maitland Boulevard corridor, setting a precedent for other similar uses on adjacent properties, a trend vigorously opposed by the residential groups and by the City and County officials and their staff.

    
    

48. Appropriate locations for free-standing commercial in the vicinity would be at U.S. 17-92, in downtown Maitland or west of I-4 (designated as one of the county's five "activity centers" in the GMP to concentrate high intensity uses and avoid encroachment into residential areas).

    
    

49. Relevant policies from Orange County's GMP provide, as follows:

    
    

    1. COMMERCIAL POLICIES (Policies outlined in Sections 1.0 through 4.0 are applicable to all types of commercial activities within Orange County)

       1. GENERAL

          1. The County will encourage the concentration of expanded commercial facilities in centers suitably located to provide their market areas with accessibility and to discourage inappropriate roadway strip commercial uses. Uses generally considered

       as a suitable replacement for strip commercial activities include all types of residential uses, institutional development, or recreation areas and green belts.

       * * *

       11.0 OFFICES AND PROFESSIONAL COMMERCIAL POLICIES

       Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks.

       * * *

       11.1.3 Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses.

       * * *

       (Joint Exhibit #9, pp VI-21, VI-30)

       
       

50. Prohibiting free-standing commercial, but permitting commercial corollary uses as described above, within the office buildings, appropriately effectuates those policies.

    
    

51. The County has required other mixed-use PD's besides Lakepointe to incorporate commercial within office buildings.

    
    

    For example, since the early 1960's and '70s, planning studies for the area around the University of Central Florida have discouraged free-standing commercial uses to maintain a campus-like atmosphere and to avoid adverse

    impacts on the University. Some unspecified commercial use has been permitted in recent years. (Transcript, pp 397-398)

    
    

    Where free-standing commercial developments are permitted in DRI/PDs, the projects are generally much larger than Lakepointe (for example, Southchase with 3,000 acres and Lake Nona with approximately 7,000 acres), or are in an activity center (for example, Maitland Summit). (Transcript, pp. 1188, 1191)

    
    

    In approving or rejecting free-standing commercial uses the County considers each location as it relates to the road network, the relationship to other uses, compatibility with surrounding land uses in the area and the character of the area. (Transcript, p. 398)

    
    

    1. Maximum Height & "Residential Scale and Character"

       
       

52. A 35-foot height limit for office buildings is mandated by the County's "straight" Professional-Office (P-O) zoning district requirement. (Joint Exhibit #11, Article XXXI, Section 6, paragraph 7) A special exception is permitted to increase the height, after consideration of the character of the neighborhood, the effect of the proposed use on the value of surrounding lands, and the area of the site. (Id., Section 5)

    
    

53. The project in issue is a Planned Development (PD), however, allowing mixed uses and a greater degree of flexibility than available under straight zoning. The developer is required to submit a plan for approval, which plan identifies, among other details, the proposed building heights. (Joint Exhibit #11, Article XXXIX, Sections 1 and 6)

    
    

    For guidance, the County and developer look to performance standards in the straight zoning, although these are clearly not binding in PD zoning.

    
    

54. The Petitioner voluntarily committed to a 35-foot height restriction on the south portion of the property. It also committed to a "residential scale and character" office development on the 28.3 acres that comprise Parcel 1 on the south. As part of the rezoning process the Petitioner showed photographs of residential scale office developments. In making those commitments, Petitioner considered the narrow depth of the south parcel and its proximity to residential uses (across Sandspur Road).

    
    

    It proposed 55-foot heights and a "campus-style" development for the offices on the larger northern parcels, to allow more open space, more landscaping and an opportunity for flexible design.

    
    

55. Orange County's codes do not define the term "residential scale and character" and no guidelines or standards have been adopted to apply meaning to the term. Nor does the County have an architectural review board charged with making design decisions on development proposals.

    
    

    It is plain that both parties have some notion of what it means, as both have used the term throughout the plan approval process. For example, Orange County's Planning Director, Edward Williams, when asked by the Board for a definition at its final public hearing, suggested that "residential scale" projects include a roof type and architectural features compatible with what is found in a "typical residential area". Size, for example, a limitation of 5,000 square feet per building, is not necessarily appropriate in all residential scale projects. (Joint Exhibit #22, p. 75)

    "Residential scale and character" could include one to five very large buildings on the north parcel rather than multiple small buildings as envisioned on the south, according to Mr. Williams. (Transcript, p. 475)

    
    

56. As recognized by the Petitioner, "residential scale and character" buildings are appropriate adjacent to existing residential areas.

    
    

57. Petitioner also acknowledges that a 35-foot height requirement is appropriate on parcels abutting or close to existing residential areas.

    
    

    Parcel 5, however, is different. Its 35 acres is the largest, and by far, the deepest parcel in the plan. It is buffered from existing residential areas by the greenbelt, by the lakes, and by the proposed residential use on parcel 6, "Pine Island". The height restriction of 35 feet does not make sense in that parcel, and inhibits the creative use of open or green space and landscaping.

    
    

    In his presentation to the local government officials at the August 10, 1987 work session, Mr. Williams articulated County planning policy in the past as trying to "...go up with developments rather than covering the entire site with impervious surfaces. We prefer to have more open space." (Joint exhibit #17, p. 10)

    
    

58. Petitioner seeks to target a different market for the offices on the south parcel than for those on Parcel 5 on the north. On the south, there are proposed approximately 18 office buildings averaging 15,000 square feet in size.

    
    

    On the north parcel, the proposal suggests larger buildings, with more open space. If the height is unreasonably limited, the open space is sacrificed.

    
    

59. "Residential Scale and Character" is not limited to single-family residential scale, but can also be multifamily. A large building can be made to look residential. Several large office buildings on the north parcel can be designed to have a "campus" feel with a quadrangle or semi-circle configuration. Size alone does not create or negate "residential scale and character".

    
    

    1. 7.5 Single Family Detached Units Per Acre

       
       

60. Petitioner has proposed attached, multi-family units at a density of

    8.3 du/acre for the unique, heavily wooded parcel 6. This density is at the lower end of the "medium density" range, "over 7.5 to, and including 14.9 Du/acre" described in the County's GMP. (Joint Exhibit #9, p. VI-8.)

    
    

61. The GMP promotes the use of this density to buffer low and low-medium density development from more intensive uses. The plan also encourages medium density residential subdivisions to "provide recreation and open space areas through the clustering of dwelling units". (Joint Exhibit #9, p. VI-11)

    
    

    The housing element of the GMP states these relevant goals: Socio-Economic

    1. Encourage development patterns which do not physically isolate low and moderate income and special needs groups from other sectors of society, especially in low density areas of the County.

    2. Recognize the need for and encourage the development of affordable housing for service employees working in Orange County.

    3. Examine the feasibility of creating new financial incentives for the development of low cost, affordable housing in Orange County. (Joint Exhibit #9, p. V-3)

    
    

    Petitioner's proposal is consistent with these policies. It seeks to buffer the low-density existing residential areas from the more intensive office uses in Lakepointe. It also seeks to preserve as much of the vegetation as possible, yet derive a benefit from the use of this parcel. It recognizes that residences accessible only through an office park may have a limited market.

    Its proposal is consistent with the County's goal of providing "affordable housing", and provides a convenient residential choice for persons who may be employed in the office park.

    
    

62. The residential neighbors and City of Maitland sought the lower density and detached single family units precisely to avoid lower-income residents and more affordable units. (transcript, pp. 955, 958-59, 1003-04, 1046-47)

    
    

63. In order to justify its accommodation of the interests of the local citizens, the County argues that a residential project, perhaps a condominium, could be designed with detached units, clustered together, or with zero lot lines.

    
    

    Visually, there is little difference between the attached units proposed by Petitioner and the County's suggestions for creative design. The latter suggestions do not satisfy the neighbors' desire to have units which are similar to their own, but they impose an unreasonable restriction on the Petitioner's flexibility.

    
    

64. The Petitioner's proposal is consistent with Lake Faith Villas, an attached multifamily residential project to the immediate east of Petitioner's property on Maitland Boulevard, within the City of Maitland. Lake Faith Villas has a density of 10 du/acre.

    
    

    1. Office use limited to 10,000 square feet per acre

    
    

65. Although the County's PD regulations do not specifically establish a 10,000 square foot per acre limit for offices, they allow the County to set reasonable, maximum amounts for different projects. The 10,000 square foot per acre limitation was derived from what Edward Williams claims is an average figure for professional office parcels in the county, and is more than the density sought and obtained by Petitioner for the south parcel when Sandspur Grove PD was approved. Other evidence suggests that the average square foot density for PO developments and PD developments in Orange County is closer to 12,000 (Transcript, p. 681-682), but the restriction is not so far off as to be patently unreasonable, considering Petitioner's plans for "residential scale and character" and "campus-style" projects.

66. Computation of the total square feet for office uses was derived on a gross acreage basis on the south and a net basis on the north, ostensibly because the County was unable to ascertain from the development plan how much of the greenbelt and road should be allocated to parcel 6. (Transcript, pp. 436- 438)

    
    

    It is possible to compute gross acreage on the north property, using the parcels identified on Petitioner's master development plan (Joint Exhibit #7) [Appendix B] provided that the acreage allocated to parcel 6 is limited to twelve acres. It is obvious that this is what the developer intended when it derived 100 dwelling units at 8.3 du/acre, and 12 acres. (8.3 x 12 = 99.6)

    
    

    It is thus possible to be consistent and compute the office density allowance for both the north and south property at a gross density, just as the P&ZC did at its November 19, 1987, meeting.

    
    

    This results in a total of 795,000 square feet of offices, not 756,000, as reflected in the development order. As the Petitioner has agreed to limit the south property to 275,000 square feet, this leaves a total of 520,000 square feet for the north property.

    
    

67. The County concedes that paragraph 19 of the Development Order, limiting building coverage for offices to 10,000 square feet per acre, does not preclude larger than 10,000 square foot buildings. (Proposed Finding of Fact, paragraph 115) That requirement should be amended in the interest of clarity, so long as the totals permitted for the north and south parcels are included in the order. This sentence, as it now reads, makes the condition internally inconsistent, as the second sentence permits 481,000 square feet on the 42.3 acre tract located north of Maitland Boulevard, more than 10,000 square feet per acre. (See Finding #41, paragraph 19, p. 21, of this recommended order)

    
    

    The Balancing Act: Weighing the Policies

    
    

68. The process of review and approval of the Lakepointe project was one of compromise and accommodation. The Board and its staff considered comments from the applicant, the applicant's consultants, the City, the Regional Planning Council, homeowner's groups from both the County and City, and the City of Altamonte Springs.

    
    

    The County did not have a joint agreement with the City of Maitland, and its agreements with regard to conditions for the project were informal and non- binding. Nonetheless, the County considered the level of participation a necessary and appropriate exercise of intergovernmental coordination, as indeed it was.

    
    

    The applicant also exhibited willingness to accede to compromises throughout the process but never abandoned its original plan as it relates to the issues raised in this proceeding. It steadfastly defended the uses and densities it proposed, and in the end, agreed only to the deletion of multifamily units on the south parcel and transfer of that acreage to office use.

    
    

69. This was a small DRI project, but a significant one to the owners and to the neighbors. It lacks the vast array of issues usually present in DRI's. There is little or no environmental impact and any traffic issues were resolved substantially though the ECFRPC review, even as to the proposed free-standing commercial uses and the densities originally proposed by the applicant.

    The single overriding issue here is land use.

    
    

70. According to Planning Director, Edward Williams, the Orange County GMP includes some 900 separate policies to guide its decisions. These sometimes divergent policies must be balanced and weighed. (Transcript, p. 382)

    
    

    In this regard, the ultimate decision by the County was skewed. Some of the conditions it imposed, in the legitimate interest of preserving the character of surrounding neighborhoods, unduly ignored other equally valid policy considerations.

    
    

71. The Developmental Framework Section of the County's Growth Management Plan lists this as its first goal:

    
    

    1. To promote the orderly economic development of Orange County. Orderly economic development may be defined as maximizing the use of public dollar investments in facilities and services, such as water and wastewater systems, roads, schools, transit, law enforcement, fire protection, and parks.

    * * *

    (Joint Exhibit #9, p. II-13)

    
    

    As noted by James A. Sellen, one of Petitioner's two expert witnesses on the topics of comprehensive planning and zoning, the development proposed is appropriate because of the substantial public investment in the controlled access road and over-sized water and sewer infrastructure. Maintenance of land use as low density single family is contrary to that investment. (Transcript, p. 233-34)

    
    

72. Commercial Policy 1.0.11 of the Future Land Use Element provides, in pertinent part:

    
    

    1.0.11 The future conversion of existing residential land uses to non-residential may be permitted under the following conditions:

    1. When the general land use character of an area has undergone significant change and will lend itself to more intensive uses;

    2. Adequate access to major streets and highways network is provided, whenever possible common access drive shall be used;

    3. The carrying capacity on the abutting road segment exceeds 8,000 average daily trips (ADT);

    4. The proposed site for conversion has close proximity to a street intersection;

    5. All other applicable policies detailed for commercial or office land use in the Future Land Use Element of the Growth Management Policy are met; and,

    6. When sufficient area is available to accommodate the conversion, together with the

    needed improvements including parking, stormwater retention and vehicular turnaround movements. (Joint Exhibit #9, p. VI-22)

    
    

    The changes in the area along Maitland Boulevard support the change in land use from the currently designated 4.4 residential du/acre to the mixed use proposed by Petitioner.

    
    

73. The Future Land Use Element's Commercial Policy 11.0, provides:

    
    

    1. OFFICES AND PROFESSIONAL COMMERCIAL POLICIES

       Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks.

    2. Location and Compatibility

       1. Large office uses should generally locate adjacent to arterial thoroughfares that connect to an interstate or expressway in order to lend accessibility to a wider market area.

       2. Smaller office uses should generally utilize principal or minor arterials for site access and location.

       3. Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses.

       4. Office uses are compatible with adjacent community and regional commercial shopping areas and may provide a buffer between these shopping areas and nearby residential areas.

       5. Professional service office parks should locate on major collectors and minor arterials.

    (Joint Exhibit #9, p. VI-30)

    
    

    As cited in Orange County Ordinance No. 88-3, amending the Future Land Use Map relating to the Lakepointe DRI, the proposed new uses are consistent with these policies of the Growth Management Plan. (Joint Exhibit #2)

    
    

74. Concern for the existing residential uses is supported by the following residential policies within the Future Land Use Element:

    
    

    1. LOCATION AND COMPATIBILITY

    2. General

       1. Residential areas shall be buffered from major transportation arteries, and from commercial and industrial land uses which are not compatible with residential development. New commercial development will be discouraged where there would be a detrimental impact on

    existing residential properties due to excessive noise, pollution, traffic congestion, unsafe highway conditions or where an unacceptable physical intrusion into residential neighborhoods would be created.

    * * *

    3.1.3 Land development controls should ensure that future development which may allow a greater intensity of use is compatible with existing development.

    (Joint Exhibit #9, p. VI-9)

    
    

75. In summary, the project, as proposed by Petitioner is substantially consistent with the County's Growth Management Plan, but requires some of the modifications imposed by the County as conditions of approval. Those modifications include the deletion of free-standing commercial uses; the enhanced buffer zone along the north parcels; reduction in height of all but the offices to be located on the large parcel 5, north of Maitland Boulevard; and offices that are designed "residential in scale and character".

    
    

    Other conditions imposed by the County, but contested by Petitioner, i.e., restrictions on the residential development on Pine Island and the height limitations for offices on Parcel 5, violate significant policies cited above without reasonably advancing the goal of protecting the existing character of the surrounding neighborhoods, and should be deleted.

    
    

    The computation of office use density should be amended to provide for gross densities for the entire property.

    
    

    CONCLUSIONS OF LAW

    
    

76. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to sections 120.57(1), F.S. and 380.07(3), F.S.

    
    

77. Section 380.07, F.S., provides, in pertinent part:

    
    

    1. Florida Land and Water Adjudicatory Commission.-

       1. There is hereby created the Florida Land and Water Adjudicatory Commission, which

          shall consist of the Administration Commission.

       2. Whenever any local government issues any development order in any area of critical state concern, or in regard to any development of regional impact, copies of such orders as prescribed by rule by the state land planning agency shall be transmitted to the state land planning agency, the regional planning agency, and the owner or developer of the properly affected by such order. Within 45 days after the order is rendered, the owner, the developer, an appropriate regional planning agency by vote at a regularly scheduled meeting or the state land planning agency may appeal the order to the Florida Land and

          Water Adjudicatory Commission by filing a

          notice of appeal with the commission. The 45-day appeal period for a development of regional impact within the jurisdiction of more than one local government shall not

          commence until after all the local governments having jurisdiction over the proposed development of regional impact have rendered their development orders. The appellant shall furnish a copy of the notice of appeal to the opposing party, as the case may be, and to the local government which issued the order. The filing of the notice of appeal shall stay the effectiveness of the order and shall stay any judicial proceedings in relation to the development order, until after the completion of the appeal process.

       3. Prior to issuing an order, the Florida land and Water Adjudicatory Commission shall hold a hearing pursuant to the provisions of chapter 120. The commission shall encourage the submission of appeals on the record made below in cases in which the development order was issued after a full and complete hearing

          before the local government or an agency thereof.

       4. The Florida Land and Water Adjudicatory Commission shall issue a decision granting or denying permission to develop pursuant to the standards of this chapter and may attach conditions and restrictions to its decisions.

    * * *

    
    

78. Although termed an "appeal", this proceeding is not truly such, but rather it is a de novo proceeding. It is an application to a higher authority for a development order. See Trans Gulf Pipeline Co. v. Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983). The proceeding includes the de novo consideration of Petitioner's request for rezoning and related amendment to the future land use map in the Growth Management Plan. In Chapter 380, F.S., the legislature has shifted review of local land use decisions for DRI's to the Florida Land and Water Adjudicatory Commission. Manatee County v. Estech General Chemical Corp., 402 So.2d 1251 (Fla. 2d DCA 1981).

    
    

    Providing for review of local land use decisions in the DRI process insures that the decisions will be considered with regional interests in mind. Estech, 1255.

    
    

    It has been repeatedly recognized by the courts of this state that FLWAC has a policy making role in resolving a DRI appeal under Section 380.07 and is responsible for protecting and balancing state or regional interest in DRI review proceedings. Fairfield Communities v. Fla. Land and Water Adjudicatory Commission, 522 So.2d 1012 (Fla.

    1st DCA 1988).

    The role of the Florida Land and Water Adjudicatory Commission cannot be frustrated by language in the County's development order which attempts to require remand if any conditions are deleted or amended.

    
    

79. The burden of proof is on the applicant to show its entitlement to the permit it seeks. Young v. State of Florida Department of Community Affairs, 567 So.2d 2, 3 (Fla. 3rd DCA 1990) (pending on certification of a question of great public importance).

    
    

80. The criteria for approval of this DRI is found in Section 380.06(14),

    1. because the development is not located in an area of critical state concern. The statute requires the local government, or the reviewing authority, to consider whether, and the extent to which:

       
       

       1. The development unreasonably interferes with the achievement of the objectives of an adopted state land development plan applicable to the area;

       2. The development is consistent with the local comprehensive plan and local land development regulations; and

       3. The development is consistent with the report and recommendations of the regional planning agency submitted pursuant to subsection (12).

       4. The development is consistent with the State Comprehensive Plan. In consistency determinations the plan shall be construed and applied in accordance with s. 187.101(3).

    
    

    The law does not require that the project have no impacts. The process requires a balancing of the regional impacts based on the entire record. In Re: Notice of Administrative Appeal of Costain Florida, Inc., etc, 12 FALR 1847, 1876 (Final Order entered 4/20/90, adopting recommended order of William Dorsey)

    
    

    As required by Section 380.06(14), F.S., Orange County considered these factors and imposed certain conditions on its approval. Petitioner is challenging those conditions as unreasonable.

    
    

    There is no issue in this proceeding as to consistency with an adopted state land development plan or Section 187.101(3), F.S., the State Comprehensive Plan.

    
    

    The issues center on the remaining criteria, particularly with regard to the local comprehensive plan and local land development regulations.

    
    

81. Section 163.3171, F.S., governs the exercise of jurisdiction by local governments under the "Local Government Comprehensive Planning and Land Development Regulation Act". It provides, in pertinent part:

    
    

    * 163.3171 Areas of authority under this act.-

    1. A municipality shall exercise authority under this act for total area under its jurisdiction. Unincorporated areas adjacent to incorporated municipalities may be included in the area of municipal jurisdiction for the purposes of this act if the governing bodies

       of the municipality and the county in which the area is located agree on the boundaries of such additional areas, on procedures for joint action in the preparation and adoption of the comprehensive plan, on procedures for the administration of land development regulations or the land development code applicable thereto, and on the manner of

       representation on any joint body or instrument that may be created under the joint agreement.

       <<Such joint agreement shall be formally stated and approved in appropriate official action by the governing bodies involved.>>

    2. A county shall exercise authority under this act for the total unincorporated area under its jurisdiction or in such unincorporated areas as are not included in any joint agreement with municipalities established under the provisions of subsection (1). In the case of chartered counties, the county may exercise such authority over municipalities or districts within its boundaries as is provided for in its charter.

    <<(emphasis added)>>

    
    

    • Note: In the above quotation, language added to the statute

      is within the <<>>; deleted language is within the [[]].

      
      

      The joint agreement between Orange County and the City of Maitland for the Maitland Boulevard corridor and other areas was not executed until July 10, 1989, substantially after this DRI was approved by the County.

      
      

      The City's comprehensive plan and land use regulations are irrelevant, except as to their guidance of the City's local officials in their legitimate intergovernmental participation in the review process. The county had exclusive jurisdiction over the portion of the project lying within its unincorporated boundaries. The City had exclusive jurisdiction over the limited parcel within its incorporated boundaries and issued a separate development order with regard to that parcel.

      
      

82. The ECFRPC, in a section of its report designated "Local issues", notes that the project is virtually surrounded by the City of Maitland and should be redesigned to be consistent with the City's Comprehensive Development Plan. For the reason described above, that recommendation is precatory only. The designation by the regional planning council as a "local issue" is itself a recognition of its non-binding nature, since regional planning council appeals of a development order pursuant to Section 380.07, F.S. are limited to regional issues. Subsection 380.06(12)(a)6., F.S.

    
    

    Failure of the project to comply with this portion of the regional planning council report thus does not render it inconsistent with the requirement of Section 380.06(14)(c), F.S. cited above. The recommendations of the regional planning counsel are otherwise substantially incorporated in the development order and are not the subject of Petitioner's challenge.

83. The project, subject to the county's conditions, as modified herein, also complies with Section 380.06(14)(b), F.S. for reasons set forth in the findings of fact, above.

    
    

84. Lastly, both the applicant and the County raised procedural issues which were disposed of at hearing. The applicant's argument that the county was improperly influenced and bound by some informal agreement reached with the City at the August 1987 joint workshop, is made moot by the de novo scope of this "appeal".

Likewise, the County's argument, in its joint motion in limine, that the applicant waived issues by failing to raise them at the December 14, 1987 hearing is defeated by the nature of the instant proceeding. The certiorari standard for review of local zoning decisions is replaced by Section 380.07,

1. procedures when those local zoning decisions are part of a DRI. Estech, supra; General Electric Credit Corporation v Metropolitan Dade County, 346 So.2d 1049 (Fla. 3rd DCA 1977). As found above, the Petitioner never abandoned its original plans for the project, with the exception of non-relevant items addresssed at the first DRC meeting and eliminating multi-family uses from the south parcel. It was thus entitled in this de novo proceeding to contest the remaining conditions placed on the project by the County at its December 14, 1987 public hearing.

   
   

   RECOMMENDATION

   
   

   Based on the foregoing, it is hereby, RECOMMENDED:

   That a Final Order be entered, granting Petitioner's appeal, in part, by amending the Development Order for Lakepointe DRI, as follows: [Deleted text of the order is struck through, and new language is underlined.]

   
   

   * * *

   * 7. The proposed development of the Lakepointe DRI/PD consists of the following:

   1. Total Acreage: Approximately [[120.3]]

<<120.6>> Acres

* * *

12. This Development Order also constitutes the development order approving the use of the Property pursuant to the Land Use Plan for PD

for [[Low Medium]] <<Medium>> Density Residential, and Office/Commercial, as more particularly

detailed in paragraph 7 of Part I of this Development Order.

* * *

II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION [WITH MODIFICATIONS BY THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION.]

(A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. [Bracketed portion

denotes new language, as the original is underlined.]

1. Development shall conform to each of the Orange County Commission conditions of approval, and to the Land Use Plan dated "Received April 3, 1986, Public Works and Development." Development based upon this approval shall comply with all other applicable federal, state, and county laws, ordinances and regulations which are incorporated herein by reference, except to the extent they are expressly waived or modified by these conditions or by formal action of Orange County.

7. <<Except for office buildings in Parcel 6>>, maximum height of the office buildings for

the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include

the appropriate landscaping elements. <<Maximum height of the office buildings in Parcel 5 shall be fifty (50) feet, and their design

shall be residential in character.>>

Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum).

* * *

14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. This

residential development shall be [[low medium]]

<<Medium>> density with a cap of [[7.5 single family detached]] <<8.3>> units per acre. [[(Development of the portion of Lakepointe south of Maitland

Boulevard is controlled by the Sandspur Office Park PD litigation.)]]

* * *

19. Building coverage for office[s] [[on the northern portion of the Property]] shall not be more than 10,000 square feet per [[net]] <<gross>> acre. The 33.3 acre office tract located

south of Maitland Boulevard shall be limited

to 275,000 square feet, while the [[42.3 acre]] tract located north of Maitland Boulevard

shall be limited to [[481,000]] <<520,000>> square feet, for an aggregate total of [[756,000]]

<<795,000>> square feet.

• Note: In the above quotation, language added to the statute

is within the <<>>; deleted language is within the [[]].

Ordinance No. 88-3, amending the Future Land Use Policy Guide Map related to the Lakepoint DRI, should be amended to reflect the above.

DONE AND RECOMMENDED this 28th day of March, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1. Adopted in paragraphs 1 and 4.

2. and 3. Adopted in paragraph 8.

1. Rejected as unnecessary.

2. Adopted in paragraphs 7 and 11.

3. Adopted in paragraph 10.

4. Adopted in paragraph 7.

5. Adopted in paragraph 11.

6. Rejected as unnecessary.

7. Adopted in paragraphs 4 and 16.

8. Rejected as unnecessary.

9. Adopted in paragraph 19.

10. Adopted in paragraph 20.

11. Adopted in paragraph 21.

12. Adopted in paragraph 14, otherwise rejected as unnecessary.

13. and 17. Adopted in paragraph 14.

1. Rejected as contrary to the weight of evidence, as to "best use", except in a very general sense; otherwise rejected as unnecessary.

2. Adopted in paragraph 22.

3. Rejected as unnecessary.

4. Adopted in paragraph 22.

5. Rejected as unnecessary.

6. Adopted in paragraph 23.

7. and 25. Rejected as unnecessary.

1. Adopted in paragraph 24.

2. Adopted in paragraph 26.

3. Adopted in paragraph 27.

4. Adopted in paragraph 28.

5. Adopted in paragraph 27.

6. and 32. Adopted in paragraph 30.

33. and 34. Adopted in summary in paragraph 33.

1. Rejected as contrary to the evidence and unnecessary.

2. Rejected as unnecessary.

3. Rejected as unnecessary and unsupported by competent credible evidence (as to how limited access points would prevent strip commercial development. Such development could be supported by internal service roads.)

4. - 45. Rejected as unnecessary. Traffic was not the reason the commercial use was deleted.

46. - 49. Adopted in summary in paragraph 65.

50. and 51. Rejected as unnecessary.

1. Adopted in paragraph 55.

2. Adopted in paragraph 54.

3. Adopted by implication in paragraph 57.

4. Rejected as unnecessary and contrary to the weight of evidence, which evidence was that "residential in scale and character" does not preclude large buildings.

5. and 57. Rejected as unnecessary.

1. Rejected as contrary to the evidence, which established that "campus style" office buildings are not inconsistent with "residential scale and character".

2. Adopted in paragraph 53.

3. Rejected as unnecessary.

4. Adopted in paragraph 44.

5. and 63. Adopted in paragraph 57.

1. Adopted in paragraph 60.

2. Adopted in paragraph 42.

3. Rejected as cumulative and unnecessary.

4. Adopted in paragraph 62.

5. Rejected as cumulative and unnecessary.

6. and 70. Adopted in paragraph 61.

1. Rejected as contrary to the weight of evidence (as to the appropriateness of the 25-foot buffer).

   
   

2. Rejected as unnecessary.

Respondent and Intervenor's Proposed Findings

1. and 2. Adopted in paragraph 1.

1. Adopted in paragraph 2.

2. Adopted in paragraph 3.

3. Adopted in paragraphs 4 and 6.

4. - 10. Adopted in paragraph 4.

11. and 12. Adopted in paragraph 8.

1. Adopted in paragraph 9.

2. Adopted in paragraph 12.

3. Adopted in paragraph 7.

4. and 17. Adopted in paragraph 10.

1. Adopted in paragraph 7.

2. - 21. Adopted in summary in paragraph 11.

22. - 29. Rejected as unnecessary.

1. Rejected as contrary to the weight of evidence.

2. - 32. Rejected as unnecessary.

1. Adopted in paragraph 13.

2. and 35. Adopted in paragraph 19.

1. Adopted in paragraph 20.

2. Adopted in paragraph 54.

3. Rejected as unnecessary.

1. Adopted in paragraph 29.

2. - 60. Adopted in paragraph 27.

1. Adopted in paragraph 30.

2. Rejected as unnecessary.

3. Rejected as unnecessary.

4. Adopted in paragraph 30.

5. - 68. Adopted in paragraph 31.

1. Adopted in substance in paragraph 30.

2. - 72. Rejected as unnecessary or immaterial.

73. and 74. Adopted in paragraph 32, in part, otherwise rejected as unnecessary or immaterial.

75. and 76. Adopted in paragraph 33.

1. Adopted in paragraph 34.

2. Adopted in paragraph 37.

   
   

3. Adopted in paragraph 35.

4. Adopted in paragraph 24.

5. - 83. Adopted in paragraph 41.

1. Adopted in paragraph 43.

2. Adopted in paragraph 43.

3. Adopted in paragraph 44.

4. Adopted in paragraph 45.

5. and 89. Rejected as unnecessary.

1. Adopted in paragraph 41.

2. Adopted in substance in paragraph 47.

3. - 94. Rejected as unnecessary substance or immaterial.

1. Adopted in paragraph 47.

2. Rejected as unnecessary.

3. Adopted in paragraph 48.

4. Adopted in paragraph 51.

5. Rejected as immaterial.

6. Adopted in paragraph 47.

7. Adopted in paragraph 41.

8. Adopted in paragraph 52.

9. Adopted in paragraph 53.

10. - 106. Rejected as unnecessary or immaterial.

1. Adopted in paragraph 41.

2. Rejected as contrary to the evidence (as to the similarly situated nature of the 2 parcels).

3. Adopted in paragraph 55.

4. Adopted in paragraph 54.

5. Adopted in paragraph 53.

6. Adopted in substance in paragraph 54.

7. Adopted in paragraph 55.

8. Adopted in paragraph 59.

"reasonable transition").

134. and 135. Rejected as unnecessary.

1. Adopted in substance in paragraph 63.

2. and 138. Adopted in substance in paragraph 61. The higher density

COPIES FURNISHED:

Miranda F. Fitzgerald, Esquire Karen M. Chastain, Esquire Maguire, Voorhis & Wells, P.A.

2 South Orange Avenue Post Office Box 633 Orlando, FL 32802

Herbert A. Langston, Jr., Esquire

111 South Maitland Avenue Suite 200

Maitland, FL 32751

Joel Prinsell, Esquire Assistant County Attorney Orange County Legal Department Post Office Box 1393

Orlando, FL 32802-1392

Douglas M. Cook, Director Land and Water Adjudicatory

Commission

Planning & Budgeting

Exec. Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

State of Florida

Division of Administrative Hearings

The DeSoto Building, 1230 Apalachee Parkway Tallahassee, FL 32399-1550

(904) 488-9675. SunCom: 278-9675

April 8, 1991

Mr. Douglas M. Cook, Director

Land and Water Adjudicatory Commission Planning & Budgeting

Executive Office of the Governor The Capitol, PL-05

Tallahassee, Florida 32399-0001

Re: DOAH Case Number 89-5667DRI Dear Mr. Cook:

The parties in the above referenced action have brought to my attention a scrivener's error in the Recommended Order issued on March 28, 1991.

Reference to "Parcel 6" on page 46, paragraph 7, should be instead to Parcel 5. With the parties' consent, I am forwarding a corrected page 46 for your inclusion in the order

when it is transmitted to the Florida Land and Water Adjudicatory Commission.

Thank you.

Sincerely,

MARY CLARK

Hearing Officer

Enclosure.

cc: Miranda F. Fitzgerald, Esquire Herbert A. Langston, Jr., Esquire Joel Prinsell, Esquire

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered, granting Petitioner's appeal, in part, by amending the Development Order for Lakepointe DRI, as follows: [Deleted text of the order is bracketed, and new language is in parenthesis.]

* * *

7. The proposed development of the Lakepointe DRI/PD consists of the following:

(A) Total Acreage: Approximately [120.3] (120.6 Acres)

* * *

12. This Development Order also constitutes the development order approving the use of the Property pursuant to the Land Use Plan for PD for [Low Medium] (Medium) Density Residential, and Office/Commercial, as more particularly detailed in paragraph 7 of Part I of this Development Order.

* * *

II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION [WITH MODIFICATIONS BY THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION.]

(A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. (Bracketed portion denotes new language, also, the original is underlined.)

1. Development shall conform to each of the Orange County Commission conditions of approval, and to the Land Use Plan dated "Received April 3, 1986, Public Works and Development." Development based upon this approval shall comply with all other applicable federal, state, and county laws, ordinances and regulations which are incorporated herein by reference, except to the extent they are expressly waived or modified by these conditions or by formal action of Orange County.

7. [Except for office buildings in Parcel 5], maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include the appropriate landscaping elements. [Maximum height of the office buildings in Parcel 5 shall be fifty

(50) feet, and their design shall be residential in character.]

Development within one hundred

(100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum)

* * *

14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard.

This residential development shall be (low medium) [Medium] density with a cap of (7.5 single family detached) 8.3 units per acre. (Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.)

* * *

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

BATTAGLIA PROPERTIES, LTD.,

A Florida Limited Partnership, Petitioner,

vs.

ORANGE COUNTY, FLORIDA CASE NO. APP-89-028

a political subdivision of the DOAH CASE NO. 89-5667DRI State of Florida,

Respondent,

AND CITY OF MAITLAND, FLORIDA

Intervenor.

/

FINAL ORDER

This matter cafe before the Florida Land and Water Adjudicatory Commission at a duly-convened meeting of the Governor and Cabinet on Tuesday, November 26, 1991 for consideration pursuant to Section 120.57(1)(b)10., Florida Statutes, of the Recommended Order of the Division of Administrative Proceedings rendered March 28, 1991. Pursuant to the vote of the Commission, the Secretary of the Commission is authorized by the Commission to enter this final order for the Commission.

Rulings on the Exceptions Petitioner's exceptions.

1. The first two of petitioner's exceptions are listed under a heading of "Factual Inaccuracies." It appears that the petitioner is correct that tie Hearing Officer erred in finding that U.S. 17-92 and Maitland Avenue are the same roadway. The error is not material to the Hearing Officer's recommendation or the outcome of the case. The exception is GRANTED.

   
   

2. The same is true of the exception taken in paragraph 2., of the Petitioner's Exceptions. It appears from the record that Maitland Boulevard did not exist at the time the property was purchased by the Battaglias. The inaccuracy is not material to the Hearing Officer's recommendation or the outcome of the case. The exception is GRANTED.

   
   

3. Whether the lakes along the northern perimeter of the property are distance buffers does not detract from the Hearing Officer's finding of fact in

   paragraph 43 of the recommended order's findings that they are not "effective light or noise buffers." The exception is DENIED.

   
   

4. Petitioner challenges the Hearing Officer's finding in paragraph 47 that the allowance of free-standing commercial uses on parcels 3 and 4 of the proposed development would set a precedent for similar uses on adjacent properties east of 1-4 and west of Maitland Avenue. The basis for the challenge is that the finding is contrary to the greater weight of evidence. It is the Hearing Officer's function to weigh the evidence. There is competent substantial evidence to support the hearing officer's finding. The exception is DENIED.

   
   

5. Petitioner takes exception to the characterization in paragraphs 47 and

   49 of the proposed free-standing commercial uses as "strip commercial uses." We do not read the findings to so characterize the free-standing commercial uses. Paragraph 47 simply states that the planning and zoning staff have sought to prevent strip commercial development and paragraph 49 states relevant policies of the County's comprehensive plan. The exception is DENIED.

   
   

6. We agree that internalized commercial uses effectuates the policies in the Orange County Comprehensive Plan cited in paragraph 49 of the order. The exception is DENIED.

   
   

7. Denial of this exception is covered by denial of exceptions 4., 5., and

1. The exception is DENIED.

   
   

   1. Petitioner takes exception to the equation in paragraph 54 of the order's findings of "campus-style" offices proposed for the north parcel with "residential scale and character" offices. We do not read paragraph 54 to make such an equation. We do read paragraph 54 together with paragraph 55, however, to mean that since Petitioner, itself, proposed "residential scale and character" office development on the 28.3 acres comprising Parcel 1 on the south that Petitioner has "some notion of what [the term "residential scale and character] means." Finding of Fact 55, R.O. p 27. This finding disposes of Petitioner's complaints that the term is not defined by the County's codes, that no guidelines or standards have been adopted to apply meaning to the term and the County does not have an architectural review board charged with making design decisions. Additionally we have adopted the further finding of the Hearing Officer in reference to both parties having some understanding of the term in paragraph 55:

      
      

      For example, Orange County's Planning Director, Edward Williams, when asked by the Board for a definition at its final public hearing, suggested that "residential scale" projects include a roof type and architectural features compatible with what is found in a "typical residential area". Size, for example, a limitation of 5,000 square feet per building, is not necessarily appropriate in all residential scale projects.

      
      

      R.O., pgs. 27-28.

      
      

      The exception is DENIED.

      
      

   2. On the basis of the discussion in paragraph 8 of this order, above, the exception is DENIED.

   3. Petitioner does not cite any law to establish that the Hearing Officer's standard for upholding a 10,000 square foot per gross acre limitation for offices as not being "patently unreasonable" is not the correct standard or otherwise invalid. Petitioner does cite to case law that such a restriction may not be arbitrary, capricious or not reasonably related to the impacts of the proposed project. The officer adequately explains why the restriction is not arbitrary. It is not far off from the average figure, claimed by witness Edward Williams, for professional office parcels in the county. It is more than the density sought and obtained by Petitioner in the south part of the parcel. And it is in keeping with plans for "campus-style" projects that are of residential scale and character. The exception is DENIED.

      
      

   4. The Hearing Officer's order calculates the total allowable square footage of office space for the project on the basis of 10,000 square feet per cross number of acres at 795,000 square feet, 275,000 on the -south parcel and 520,000 square feet on the north. This includes all of the acres on the north and south parcels. The exception is DENIED.

      
      

   5. The Development Order's allowance of office square footage includes the commercial usage which Petitioner wanted to be free-standing because the commercial usage is required by the Development Order to be internalized. The limitation of 18,000 square feet for internalized office space is a further limitation on the office square footage. It is not, as the exception infers, a limitation separate from the office square footage as if the office space were allowed to be a certain number of square feet and further and in addition a certain number of square feet were allowed for commercial. Rather, a certain number of square feet are allowed for offices of which no more than 18,000 are allowed to be internalized commercial. The exception is DENIED.

      
      

   6. The changes to the Development Order should be made by the County pursuant to the text of the Recommended Order and its recommendations as adopted and modified by this final order. Otherwise the exception is DENIED.

The County's and the City's Joint Exceptions.

1. The County and the City take exception to the Hearing Officer's recommendation that the height limitation for office buildings on Parcel 5 be raised from 35 feet to 50 feet. The hearing officer found that the project is a Planned Development allowing mixed uses and a greater degree of flexibility than available under straight zoning, that parcel 5 is different because of size, depth and buffering, and that if height is unreasonably limited then open space is sacrificed. 1/ The hearing officer found in light of these facts that, "[t]he height restriction of 35 feet does not make sense in that parcel, Finding of Fact 57, R.O. P. 28.

   
   

   We regard the finding that the "35 foot-restriction" does not make sense, rather than a factual matter, to be more in the nature of a conclusion with which we may freely disagree. 2/ Other facts found by the hearing officer and pointed out by the County and the City in their joint exceptions, however, lend themselves to a different conclusion, a conclusion that the height restriction does make sense.

   
   

   The East Central Florida Regional Planning Council noted in its final recommendation "that the project is virtually surrounded by the City of Maitland and would have a significant impact on the City of Maitland and its citizens,

   ..." Finding of Fact 24, R.O. P. 13. The hearing officer found the City to surround the project on three sides, (east, south and west,) Finding of Fact 4,

   R.O. P. 6., and further that "[t]his was a small DRI project, but a significant one to the owners and to the neighbors." Finding of Fact 69, R.O. P. 34. These findings support acceptance by this Commission 3/ of the portions of paragraphs

   105 and 106 of the County and City's Joint Proposed Recommended Order as follows:

   
   

   1. The City's Comprehensive Development Plan ("CDP") and Zoning Code set a height limitation for office development east of 1-4 at 35 feet, whereas west of I-

      4 they allow a height of 50 to 55 feet. (Joint Exh. #10 and #12; T 738-739, 793, 1032) The City has an acute concern with an office height above 35 feet east of 1-4. (T 1031) The City tested whether people would

      object to a height above 35 feet by tethering a balloon

      50 feet above the ground, and people reacted negatively. (T 1031-1032) The 35 foot height restriction for Lakepointe thus serves a legitimate public purpose by preserving the single-family residential character of the area. (T 807)

   2. Lastly, area homeowners opposed a height on the Lakepointe project above 35 feet... (T990-991)

      
      

      The City and the County argue further in their exception that a breach of the 35 foot restriction will change the character of the area within the City east of Interstate 4 and will set a precedent for additional buildings which exceed the

      35 foot height restriction. The purpose of the 35 foot restriction for all of the Lakepointe DRI, i.e., preservation of the single-family residential character of the area, was established as a legitimate public purpose at hearing. See testimony of David Tomek, Community Development Director for the City of Maitland, testifying as an expert in the field of land planning and zoning, Tr. 807. Moreover, "those who own property and live in a residential area have a legitimate and protectable interest in the preservation of the character of their neighborhood Allapattah Community v. City of Miami, 379 So.2d

      387 (Fla. 3rd DCA 1980).

      
      

      These additional findings, argument and evidence in the record lead us to the conclusion that the 35 foot height restriction for Parcel 5 does make sense. The language recommended by the hearing officer to be added to the Development Order as shown on P. 46 of the Recommended Order in paragraph 7 which raises the height restriction to 50 feet for "Parcel 6 (sic),4/" is not accepted. The Development Order shall retain the height restriction of 35 feet for office buildings for the entire project. The Exception is GRANTED.

      
      

2. The City and the County also take exception to the Hearing Officer's recommendation that the density of the residential units allowed by the development order in Parcel 6 be changed from 7.5 units per acre (the most units allowed under "low-medium" density) to 8.3 units per acre ("medium" density). The City and the County convincingly demonstrate in their second joint exception that the change from low-medium density to medium density for the residential units in Parcel 6 was not requested by the Petitioner in the petition that initiated this proceeding and therefore,

In defending against BPL's Petition during the pleading stage, discovery stage, and at the de novo administrative hearing, the County and the City naturally limited their arguments and case preparation to only those points in dispute as set forth in BPL's

Petition. By recommending substantive changes to the County's Development Order which were never even requested by BPL, the Hearing Officer has deprived the County and the City of procedural due process.

Orange County and City of Maitland's Exceptions to Recommended Order, P. 11.

We agree. For the reasons advanced by the City and the County in its exception, the exception is GRANTED.

DISPOSITION

The Recommended Order is accepted by this Commission except for the exceptions granted above. Petitioner's appeal is granted in part so as to amend the Development Order for the Lakepointe DRI, as follows: [Deleted text of the order is struck through, and new language is underlined.]

1. The proposed development of the Lakepointe DRI/PD consists of the following:

   
   

   1. Total Acreage: Approximately --120.3-- 120.6 Acres

II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION [WITH MODIFICATIONS BY THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION.]

19. Building coverage for office[s] --on--

--the northern portion of the Property-- shall not be more than 10,000 square

feet per -net- gross acre. The 33.3 acre office tract located south of Maitland Boulevard shall be limited to 275,000 square feet, while the --42.3 acre-- tract located north of Maitland Boulevard

shall be limited to --481,000-- 520,000 square feet, for an aggregate total of

--756,000-- 795,000 square feet.

Ordinance NO. 88-3, amending the Future Land Use Policy Guide map related to the Lakepointe DRI, should be amended to reflect the above.

The remainder of the changes to the Development Order recommended by the hearing officer on pages 45 and 46 of the Recommended Order are rejected.

WHEREFORE, the Recommended Order (attached as Exhibit "A") is adopted as the Final Order of this Commission subject to the modifications to the order as the result of granting the exceptions granted by this order. The Petitioner's appeal is granted in part and the Development Order for the Lakepointe DRI is amended as reflected above.

DONE AND ORDERED this 13th day of December, 1991.

for Douglas M. Cook

Secretary to the Florida Land and Water Adjudicatory Commission

ENDNOTES

1/ We note that the hearing officer refers to "unreasonable" limitation of open space. Because of other findings of fact, argument and evidence, as explained further in the text of this order, we do not think the 35-foot restriction on Parcel 5 is unreasonable. Also see Art. XXIX, Sec. 10 (a)(9), of Part III, Planning and Zoning of the Code of Orange County, Florida admitted into evidence in this case as Joint Exhibit 11. The 35 foot height restriction appears to do no violence to this section of the code relating to open space.

2/ We may freely disagree with conclusions of law. Section 120.57(1)(b)10., F.S.

3/ Rather than rejection as unnecessary and immaterial" as ruled on by the Hearing Officer. Appendix A to the Recommended Order, Rulings on Respondent and Intervenor's Proposed Findings of Fact 104. - 106. R.O. P. 53.

4/ The recommended order mistakenly references Parcel "6,"; the order plainly means to reference Parcel "5."

CERTIFICATE OF SERVICE

Honorable Lawton Chiles Honorable Jim Smith

Governor Secretary of State

The Capitol The Capitol

Tallahassee, FL 32399 Tallahassee, FL 32399

Honorable Gerald Lewis Honorable Tom Gallagher

Comptroller Treasurer

The Capitol The Capitol

Tallahassee, FL 32399 Tallahassee, FL 32399

Honorable Bob Butterworth Honorable Betty Castor Attorney General Commissioner of Education

The Capitol The Capitol

Tallahassee, FL 32399 Tallahassee, FL 32399

Honorable Bob Crawford David Maloney, Esquire Commissioner of Agriculture Governor's Legal Office The Capitol The Capitol, Suite 210

Tallahassee, FL 32399 Tallahassee, FL 32399

Miranda F. Fitzgerald, Esquire Joel Prinsell, Esquire Karen M. Chastain, Esquire Assistant County Attorney Maguire, Voorhis, & Wells, P.A. Orange County

2 South Orange Avenue Legal Department

Post Office Box 633 Post Office Box 1393

Orlando, FL 32802-1392 Orlando, FL 32802-1392

Herb Langston, Jr., Esquire Mary Clark

111 South Maitland Avenue DOAH

Suite 200 The DeSoto Building

Maitland, FL 32751 Tallahassee, FL 32399

Docket for Case No: 89-005667DRI

Orders for Case No: 89-005667DRI