I write as a member of the Winter Park Planning and Zoning Board and in the spirit of the duty of the board to keep the “public informed and advised as to” matters impacting development in our city. I encourage readers to explore the various links to source information below.
Fear and frustration of many citizens was evident this past summer in the “no density” reaction to a proposed change in our comprehensive plan related to planned developments, or “PDs.” This change was not approved by the city commission. Objections to the proposed PD changes were founded in reactions to the recent developments on Denning and 17/92.
My service on the Planning and Zoning Board has increased my appreciation of the specialized knowledge required to contribute legally sound and informed judgments on these issues. I am convinced that the vast majority of Winter Park residents agree on the scope of development that fits our residential focus but that misunderstandings (some encouraged with political motive) create unnecessary discord that distracts from realizing development that actually does fit. While not the subject of this letter, that “fit” may be described as “Hannibal Square. Not Sand Lake Road.” I will offer more on this subject in subsequent writings.
The focus of this letter is to clarify what the city (your city commission) can and cannot control under existing zoning rules, and also to put this in context with both your rights as a residential property owner and recent developments on Denning Drive and 17/92.
YOUR DEVELOPMENT RIGHTS
As with commercial property, the city has a myriad of rules about single family development. As an example, a 14,000 square foot residential lot can have a house that is 4,600 square feet in size (with some adjustments depending on specific design issues) and be no higher than 35 feet (see some of the detailed requirements online).
Now, let’s say you buy a piece of residential property, submit construction plans that meet all the rules, and the city simply refuses to issue you a permit. Think about your reaction in that circumstance. What would you do next?
The answer is you would either roll over, modifying your plans to meet the arbitrary preferences of those who control approval of your construction permit, or you would sue the city for failing to allow you to build to the rules existing when you presented your plans.
If the city behaved arbitrarily in building permit approvals what do you think would happen to the value of your residential lot? Would you as a taxpayer think it appropriate to pay legal fees the city would incur fighting law suits property owners would file as a result of such arbitrary behavior? Am I presumptuous to assume the answers to these questions from the vast majority of you would be “my property value would go down,” and “no, I am not paying?”
ENTITLEMENT
Every commercial development is entitled to be heard by the Planning and Zoning Board and the City Commission (for those that require public hearings or if denied by staff) if it complies with the city’s application requirements. The developer is entitled to a building permit if the development meets the requirements of the comprehensive plan and land development code. These entitlements are valid whether the development is a single family residence or commercially zoned property.
CONDITIONAL USE
Our rules require that buildings over 10,000 square feet require a two-step “conditional use” approval (see code section 58-90). This process judges the proposed development as to conformance with the comprehensive plan policies and as to compatibility and impacts with the type and size of buildings and the character of the surrounding area.
The “conditional use” process brings a degree of judgment and negotiation to consideration of large scale developments that does not exist for typical single family residential development in Winter Park. The city’s denial of a proposed development on “compatibility” or “adverse impact” grounds where all relevant zoning rules are followed, however, is likely to result in law suits if the developer considers the denial to be arbitrary.
HISTORY OF RECENT DEVELOPMENT APPROVALS (click links for source material)
CNL Office at Denning and Morse.
This three story 88,000 square foot office building on the former State Office Building site at 941 W. Morse Boulevard received final conditional use approval in June 2012 from both the Planning and Zoning Board and the City Commission. This project received minor height and parking variances, preserved trees, and provided greater green space than required. Otherwise, all zoning rules were complied with.
Casto Apartment Project at Denning and Canton.
An original 2006 request for a 370,000 square foot 140 unit condominium project with parking garage was granted preliminary approval in January 9, 2006 and final approval on June 26, 2006. Plans to build this project were suspended after full construction plans had been submitted and approved by the city, establishing an investment backed expectation that supports the R4 zoning approved for in the 2013 apartment project. In other words, the rights to R4 zoning were effectively grandfathered as a result of the 2006 approvals and denial of the project now nearing completion would have resulted in legal action against the city.
The project approved in 2013 has 346,346 square feet and 206 units. Please see the discussion of this project as approved (Winter Park Town Center Development), referencing details of the 2006 approval. In all material respects, the 2013 project plans complied with all rules associated with its R4 zoning designation grandfathered as a result of the 2006 approvals.
Atlantic Housing Senior Apartments at Denning and Swoope.
This project was originally approved as a 105 unit apartment complex in January 2006. The parking garage shell was completed but then the project was put on hold. The project was sold to Atlantic Housing with vested zoning rights intact and the complex was approved again December 10, 2012 consistent with the original 2006 approval but a four stories instead of three and with significantly larger green space.
Lakeside Winter Park at 17/92 and Morse
This property could have been developed as a four story and almost 80,000 square foot office complex under existing entitlements. The initial request for a single story 35,500 square foot retail center on 3.86 acres was approved February 25, 2013 consistent with zoning rules, including required parking. The developer subsequently requested an additional 2,500 square feet with a parking variance that was denied January 27, 2014 (see page 6 item c) (applicant withdrew the request facing denial). The developer then entered into a contract for nearby property to provide for employee parking to meet city requirements and the additional square footage was approved. The developer failed to close on the nearby property and the certificate of occupancy for the building that was the subject of the parking variance request was withheld by the city. The developer now owns the former Mt. Vernon property across the street and is using that lot to meet city parking code. The developer has agreed to dedicate 40 spaces at the Mr. Vernon property related to parking required at the Lakeside development, 20 more spaces than required by code.
SUMMARY
The major developments constructed along Denning and 17/92 have all been within the bounds of legal entitlements from earlier approvals or otherwise built within all material limitations of our building codes and zoning rules. Neither the current Planning and Zoning Board nor City Commission has granted any material variances for any of these projects. In other words, the “density” of these projects (however defined) does not exceed the entitlements and in some cases the actual size of the structures is materially less than the maximum entitlement.
It is constructive for each of us to ask, “What does “no density” mean?” Does it mean that we elect people to the commission who will refuse to approve development that is allowed by our zoning rules and thereby subject all residents to the attendant legal costs and consequences? I don’t think so.
I think “no density” means that we want commercial development in Winter Park to complement the residential character of our city and add to the amenities and quality of life we each seek in choosing the live here.
The way to get there is to carefully assess what we get under our current rules (the developments you see along Denning and 17/92) and revise these in ways that avoid down zoning (taking away property rights at cost to the residents), while encouraging a better “fit” with Winter Park. While a difficult needle to thread, I believe we can end up in a better place by working together on this challenge.
Yours Truly, Peter J. Weldon
Is it not incumbent on the buyer of residential/ commercial property to assess the acceptability of the property’s use prior to purchase?
Sounds like the investor gets victim status simply because an investment is made.
Why not have a review process available, prior to purchase, advising the prospective buyer as to the likelihood of Commission approval? (please excuse my ignorance is this process already exists)
What protection does the community have other than “the code”? Potential lawsuits are not a strong argument for disapproving weak design and inappropriate use of Winter Park land.
What is to prevent Developers with deep pockets from buying up any/all available property and bet that their lobby will usually prevail?
Thanks for your respone.
Brian, you offer some great questions.
I will give you my understanding on these subjects based on my 40 years of business experience and as member of the Planning and Zoning Board. Readers with legal expertise in this area are encouraged to comment and clarify.
Is it not incumbent on the buyer of residential/ commercial property to assess the acceptability of the property’s use prior to purchase? The permitted uses are spelled out in our code by zoning district. Read this for our C3 Zoning District as an example. If you intend to use your property for a use described in our code for the zoning that exists for your property you can be assured of approval of that use. If your use is only allowed under “Conditional Uses” the city may deny your application if it can demonstrate incompatibility with the surrounding area. There are standards for what constitutes incompatibility.
Why not have a review process available, prior to purchase, advising the prospective buyer as to the likelihood of Commission approval? We do have that for many developments. The codes are written to allow both residential and commercial property owners a reasonable level of assurance that when they purchase a property they can do what they intend with the property consistent with the code (that is why the code is written down in the first place). For certain cases including developments over 10,000 square feet a rather elaborate two step “Conditional Use” process is used that includes notice requirements to neighbors (and sometimes the entire city) and includes multiple public hearings. All of this is precisely to evaluate a development’s consistency with code, to evaluate any variance requests subject to public scrutiny, and to judge whether the project is compatible with the surrounding area. Property owners know this process exists before they purchase a property or propose a development. Also, many proposed developments do come to the city when a prospective purchaser has acquired an option to purchase the property, which option may be contingent on city approval. This is normal business practice.
What protection does the community have other than “the code”? Potential lawsuits are not a strong argument for disapproving weak design and inappropriate use of Winter Park land. The city should only be subject to a credible law suit if it takes away rights or value. The code IS the controlling factor. If the code says you can build a ten story building then that would be allowable. The city cannot control “design” of a project unless it can be reasonably judged to be egregiously incompatible or is subject to previously defined design guidelines in the code. Developers by definition invest money as you do in your home. If you wanted to build a new home that met all existing residential code but some people objected to your design, any denial of your construction permit would be arbitrary and you would have a reasonable case to sue the city. We will not get an “inappropriate use” where the actual use requested is allowed in our code (“inappropriate” is a matter of personal opinion).
With all this said, the “Conditional Use” process provides leverage for the city to make requests of a developer, and, some areas of the city (Park Ave., Hannibal Square, and Morse Blvd.) are currently subject to design standards in our codes. As an example, the new “Whole Foods” project that may be coming out of the ground in the near future was approved last year as it met all the code requirements. Because it was a “Conditional Use” approval the city was able to ask for and received changes in the building layouts, upgraded landscaping (including shade trees), pedestrian/biclycle access, decorative lighting to Winter Park standards, and bricking to bring a “Winter Park” image to the development (among other changes to the developer’s original plans). Note that the city can only push this cart so far before impacting the owner’s property value and subjecting the city to risk. The idea of working with the developer on a “Conditional Use” approval in my view is to improve compatibility and add value for both the city and the developer in the process.
Our codes can be changed by a vote of our elected officials. This is a key reason we call our form of government “self-government.”
A good case is the R4 zoning on Denning that was approved by the commission in 2006. The Comprehensive Plan existing in 2006 allowed the commission to apply R4 zoning with 4 stories and 25 residential units per acre on Denning (that is no longer the case). When the 2006 commission approved that zoning (and the property owner spent material dollars, creating what is called “an investment backed expectation”) the R4 status of that property became a grandfathered right. Now, the city could certainly have rejected the current R4 development now nearing completion but the property owner would have sued because such a denial would have been a clear case of devaluing his property.
What is to prevent Developers with deep pockets from buying up any/all available property and bet that their lobby will usually prevail? Thinking as an investor I offer that no one would put their money at risk in Winter Park (buy Winter Park property) in contemplation of changing the codes through political influence. Your question does not reflect any possible reality I have known or can contemplate in Winter Park. An essential right of property owners is to NOT sell their property and the market dynamics of any possible efforts to aggregate land in Winter Park would make such aggregation very difficult. On the other side of your question is the reality that the city (over many city commission cycles) has tried to motivate land aggregation and redevelopment on Fairbanks between 17-92 and I4 with no significant success so far (although some quality redevelopment under existing codes has taken place (4 Rivers, new McDonalds, new Lombardi’s Seafood as examples).
I hope this gives you a better sense of the issues. Please keep in mind that everyone on city staff and the commission are acutely sensitive to these issues and consider new development proposals very carefully within the context of all these complexities and realities. The bottom line is that we (as a city) have a responsibility to work with property owners but no need to give stuff away. In my experience over the past nine years I have seen decisions I disagreed with but nothing I could fairly call a giveaway to a developer.