21-002397 Lake Nellie Crossing, Llc vs. Lake County, Florida Status: Closed Recommended Order on Thursday, January 6, 2022.

Summary: Petitioner demonstrated that denial of the Rezoning Application would be unreasonable or would unfairly burden the use of the owners' property.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L AKE N ELLIE C ROSSING , LLC,

Petitioner ,

vs. Case No. 2 1 - 2397

L AKE C OUNTY , F LORIDA ,

Respondent .

___________________________ ________ ____/

S PECIAL M ASTER Ô S R ECOMMENDATION TO THE

L AK E C OUNTY B OARD OF C OUNTY C OMMISSIONERS

On December 22, 2021, a land use and environmental dispute resolution

proceeding was, pursuant to notice, convened by Zoom conference before

E. Gary Early, an Administrative Law Judge of the Division of

Administ rative Hearings , serving as Special Magistrate pursuant to section

70.51, Florida Statutes .

A PPEARANCES

For Petitioner: Cecelia Bonifay , Esquire

Thu Pham, Esquire

Akerman LLP

420 South Orange Avenue , Suite 1200

Orlando, Florida 32 801

For Respondent: Da vid Langley, Esquire

Lake County AttorneyÔs Office

315 West Main Street

Tavares, Florida 32778

A number of non - party participants appeared at the Zoom conference and

were permitted to offer documents and testimony pursuant to limitations

established in t he November 4, 2021 , Notice of Hearing Before a Special

Magistrate.

S TATEMENT O F T HE I SSUE S

The information - gathering hearing was convened for the purpose of

determin ing the impact of Lake CountyÔs Order denying a rezoning

application (ÑRezoningÒ) for th e Lake Nellie Crossing Planned Unit

Development, Lake County Case No. RZ - 20 - 39 - 23 (ÑPUDÒ) , whether the

denial of the rezoning application was unreasonable or unfairly burden ed the

real property subject to PetitionerÔs rezoning application, and whether some

modification of PetitionerÔs proposed use of the property or adjustment to the

denial of the rezoning application could be reached.

P RELIMINARY S TATEMENT

On July 6, 2021 , the Lake County Board of County Commissioners

(ÑBOCCÒ) entered an Order denying th e rezoning application for the Lake

Nellie Crossing PUD . Thereafter, on August 3, 2021, Lake Nellie Crossing,

LLC (ÑLake NellieÒ) , filed a Petition for Section 70.51, Florida Statutes, Relief

with Respondent, Lake County, Florida (ÑLake CountyÒ).

An info rmation - gathering and dispute resolution proceeding was

scheduled for September 16, 2021. Prior to the commencement of the

proceeding, written comments were received from Lake County residents

Dean and Donna Bingaman ; Marcia and Thomas Cerzan ; Kevin and Li nda

Gilbert ; and Peter Stauder. The parties filed their Stipulated Facts on

September 15, 2021.

The proceeding was convened as scheduled. At the commencement of the

proceeding, the parties announced that a tentative resolution had been

reached, which incl uded a draft Ordinance 2021 - XX for consideration by the

BOCC. By the afternoon of September 16, 2021, the parties filed an executed

Settlement Agreement. Pursuant to Lake County Land Development Code

(ÑLD C Ò) s ection 14.17. 22.B, a n abbreviated Special Magis trateÔs

Recommendation was entered and submitted to Lake County.

On October 29, 2021, Lake County filed a Motion to Re - open Case based

on the denial of the proposed S ettlement Agreement by the BOCC. All

procedural issues having been met by the parties, th e case was re - opened,

and the information - gathering proceeding was scheduled for December 22,

2021. On December 14, 2021, a Procedural Order was entered that

established the order of presentation for the parties and public participants.

In accordance wit h the notice, t he information - gathering hearing was

held on Wednesday, December 22, 2021, by Zoom conference . Given the

failure of the previous efforts at settlement, the mediation and facilitation

phase of the proceeding was dispensed with, and the case p roceeded with the

information gathering phase. See LD C §§ 14.17.15 through 14.17.17.

At the information - gathering hearing , Petitioner, Lake Nellie , presented

the testimony of Alex Stringfellow, who was found to have the knowledge,

skill, experience, train ing, or education to qualify as an expert in urban

planning ; and Mohammed Abdallah , who was found to have the knowledge,

skill, experience, training, or education to qualify as an expert in traffic

planning . Lake Nellie Ôs E xhibits A through S were received in evidence.

Respondent, Lake County, presented the testimony of Janie Barron, who

was found to have the knowledge, skill, experience, training, or education to

qualify as an expert in land use and zoning ; and Jeff Earhart, P . E ., who was

found to have th e knowledge, skill, experience, training, or education to

qualify as an expert in traffic planning and engineering . Lake County Ôs

Exhibits A through E were received in evidence.

The following non - parties were allowed to participate and testify at the

proc eeding : 1 Donna Bingaman ; Peter G. Stauder ; Forrest Harvey ; Kim

Cudmore ; and Karen Rodriguez .

The record was held open until January 5, 2022 , 2 to allow the parties to

provide proposed reco m mendations . On January 5, 2022, Lake County

requested an additional day within which to file a proposed recommended

order. That Motion is granted, and the date for closing the record has been

extended to January 6, 2022. Both parties thereafter timely submitted

proposed recommendations which have been considered in the d evelopment

of this Recommendation to the Lake County Board of County Commissioners.

S UMMARY OF T HE T ESTIMONY A ND E VIDENCE

Stipulated Facts

1 . The subject property, parcel identification numbers

14325000100001300 (alternate key 1813107), 1325000200005000 ( alternate

key 3863032) , and 132325000100000600 (alternate key 1405351)

(collectively, Ñ Property Ò ), is approximately 117.05 acres in unincorporated

Lake County, and is subject to Lake County Ô s Comprehensive Plan

( Ñ Comprehensive Plan Ò ) and L DC .

2 . Petitione r, Lake Nellie, is an Ñ Owner , Ò as the term is defined under

s ection 70.51(2)(d). Lake Nellie has a legal or equitable interest in the

1 W ritten statements submitted by Dean and Donna Bingaman; Marcia and Thomas Cerzan;

Kevin and Linda Gilbert; and Peter Stauder prior to the September 16, 2021, hearing were

received in evidence and are part of the record of this proceeding.

2 The Procedural Order initially set December 28, 2021 , as the date for filing proposed

recommendations and closing the record . T he parties subsequently agreed to keep the record

open until Januar y 5, 2022, to file their proposed recommendations.

Property and is the applicant for the Lake Nellie Crossing P UD , Case No. RZ -

20 - 39 - 2 3 .

3 . The Rezoning Application involve s a request to develop 102 residential

units on 117.05 acres.

4 . The Property has a future land use designation of Rural Transition and

zoning designation of Urban Residential District (R - 6).

5 . The proposed Rezoning is consistent with all elements of the

Comprehensive Plan.

6 . The future land use designation, zoning, and existing uses for the

properties immediately adjacent to the Property are:

Direction Future Land Use Zoning Existing Use

North Rural Transition PUD and R - 6 Residen tial Ï Single - Family

and Urban Low Dwelling Units (Vista Grande

Density Phases II and III, and

Highland Groves Phase III

consisting mostly of lot sizes

approximately 0.33 acres)

South Rural Transition PUD and R - 6 Residential Ï Single - Family

and Rural Dwelling Units (Lake Nell ie

Shores, Vista Grande Phase

I, and Hills of Lake Louisa

consisting of lot sizes ranging

between 0.2/ - to 0.5 / -

acres)

East Rural Transition CFD and R - 6 Worship Hall (Liberty Baptist

Church) and Residential -

Single - Family Dwelling Units

(Beverly Est ates, Aurora

Homes, and Saw Mill Run

consisting of lot sizes

approximately 0.6 / - acres)

adjacent to Lakeshore Drive

West Rural Transition AR and A Residential Ï single - family

dwelling units

7 . The Rural Transition land use allows a maximum residentia l density of

one (1) dwelling unit per one (1) net buildable acre, provided that the

subdivision is developed as a clustered Rural Conservation Subdivision

utilizing a PUD zoning, and that at least fifty (50) percent of the net

buildable area is dedicated in perpetuity as common open space with a

conservation easement.

8 . The proposed development of the Property (102 units on 117.05 acres),

as depicted in the Concept Plan (the ÑProjectÒ) , meets the Comprehensive

Plan Ô s density requirements and 50 percent c ommon space requirement for

the Rural Transition future land use designation.

9 . The development is consistent with the concept of orderly and logical

development pattern. The proposed development is of similar character and

development pattern as existing single - family developments in the area, as

previously approved by the County, and consistent with the immediately

surrounding parcels, also zoned R - 6 and PUD with densities equivalent to or

in excess of the proposed project. The surrounding development ra nges from

two dwelling units per acre all the way down to 1.1 dwelling units per acre.

The proposed development is one dwelling unit per acre.

10 . The Rezoning Application satisfies the procedural requirements of

LDC section 14.03.00.

11 . The general tre nd in Lake County (based on the University of Florida,

College of Liberal Arts and Sciences, Bureau of Economic and Business

Research, Florida Estimates of Population 2020) is a 23.5 percent population

increase over a ten - year period (2010 - 2020) , resulting in an increased

demand for additional housing of all types.

12 . The County Ô s Public Works Department has reviewed the traffic study

provided by Lake Nellie for the proposed development and has concluded that

the relevant segment of Lakeshore Drive will n ot be over capacity.

13 . Lakeshore Drive appears to have reached a steady state of traffic

volume. The historical traffic data indicates that the traffic volume has

stayed at a steady rate. The traffic volume for Lakeshore Drive has flattened

or decayed.

14 . Per Lake County Ô s policy, roadways can function at a Level of Service

( Ñ LOS Ò ) D.

15 . Lakeshore Drive is currently LOS D.

16 . The traffic analysis, included as Exhibit I in the Petition, complied

with Lake County Ô s requirements for traffic reports ne cessary for

consideration of rezoning applications.

17 . The posted speed limit for Lakeshore Drive is 40 miles per hour.

18 . The empirical traffic data for Lakeshore Drive supports a conclusion

that , by and large, the public is abiding by the speed limit on Lakeshore

Drive. There is no empirical data to support a conclusion that Lakeshore

Drive is designed such that it is more conducive for speeding.

19 . The empirical data supports a conclusion that most of the accidents on

Lakeshore Drive resulted from h uman errors and other external influences

such as drugs and alcohol.

20 . There is data to support a conclusion that the proposed development

will not contribute to any alleged speeding problems or cause increased

accident risks.

21 . A four - foot paved sho ulder is proposed to be constructed on Lakeshore

Drive along the entire length of the Property as part of the off - site

improvements for the proposed development in addition to the construction of

a left turn lane. The construction of the four - foot paved sh oulder and left turn

lane enhance safety conditions on this section of Lakeshore Drive.

22 . The Lake County School Board has indicated that there is sufficient

school capacity to accommodate the proposed development.

23 . Central water is available for th e proposed development.

24 . Sewage created from the proposed development will be treated

utilizing a Ñ Distributed Wastewater Treatment System Ò ( Ñ DWTS Ò ), which is a

newly - defined category of Ñ Domestic Wastewater Treatment Facility, Ò

recently approved (in 2 019) by the Florida Department of Environmental

Protection ( Ñ FDEP Ò ). A DWTS consists of multiple individual Ñ Distributed

Wastewater Treatment Units Ò ( Ñ DWTU Ò ), each of which are Ñ treatment

plants Ò (as defined in Florida Administrative Code R ule 62 - 600.200(6 9)) that

treat domestic waste to secondary treatment standards, and all of which are

(1) commonly owned, (2) wirelessly networked together and individually

(remotely) controllable (e.g. though a SCADA system), (3) operated and

maintained by licensed wastew ater operators, and (4) subject to the standard

inspection, monitoring , and reporting requirements in c hapter 62 - 600.

25 . The DWTS is not an individual septic tank system. It is functionally

equivalent to a central wastewater treatment system, utilizing s imilar

technology as that employed by municipal wastewater treatment plants, and

is regulated by FDEP as a central wastewater treatment system. The

individual DWTU processes the wastewater via an activated sludge

sequencing batch reactor process to remove approximately 90 percent of the

nitrogen. DWTU s are much more efficient than an individual septic system,

which uses an anaerobic process and is only capable of removing

approximately 30 percent of the nitrogen from the wastewater.

26 . LDC s ection 14.03.0 3(j), which states that the B O CC Ô s decision may be

based on Ñ [a]ny other matters that may be deemed appropriate by the Lake

County Planning and Zoning Board or the Board of County Commissioners,

in review and consideration of the proposed rezoning, Ò does n ot contain any

objective standards or criteria.

27 . Specific technical details related to alleged issues from pesticides or

fertilizers or water load for the adjacent water body, as well as roadway

design details and resultant traffic impact, are required to be submitted as

part of a Preliminary Plat Review, not for a rezoning.

Facts Adduced at the Hearing

28 . As acknowledged by the parties, the sole basis for denial of the request

for rezoning is related to the issue of transportation safety as affect ed by the

addition of vehicular traffic from the 102 proposed residential units.

Compliance, C onsistency , and C ompatib ility

29 . The Property was previously used for agriculture, like ly citrus

production. It has not been used for agriculture for many years, with the

most recent evidence of such use being a 2004 aerial photograph that depicts

trees planted in rows. Such are now long gone. U nder current residential

zoning, sustained and continuous agricultural use would be allowed , even

though non - conforming . However, after 15 years without active agricultural

use, it is no longer an allowable use of the Property. The most persuasive

evidence indicates that the only currently allowable use of the Property is

residential.

30 . The Comprehensive Plan provides for three allowable development

density alternatives under the Rural Transition future land use designation :

a) one dwelling unit per five acres, with no open space requirement; b) one

dwelling unit per three net buildable acre s with 35 percent of the propert y

dedicated to open space; and c) one dwelling unit per net buildable acre with

50 percent of the property dedicated to open space.

31 . The Project meets the Comprehensive Plan requirement of a

maximum residential density of one dwelling unit per net buil dable acre,

developed as a clustered Rural Conservation Subdivision utilizing a PUD

zoning, and with the 50 percent open space being perpetu ally protected with

a conservation easement. Furthermore, the open space will be subject to the

Plat.

32 . Total acre age of the Lake Nellie property is 117 acres. Of that,

102 acres Ñare high and dry.Ò The remaining 15 acres, which are open water

or wetlands, are preserved from development, but are not included as Ñopen

spaceÒ for density calculations. 3 Thus, under the o ne dwelling unit per net

buildable acre , the Project is limited to a maximum of 102 dwelling units.

33 . All development is to be between Lakeshore Drive and Royal Vista

Drive . A pproximately 32 acres of the open space land , in a single block e ast of

Royal Vista Avenue , will be used for passive open space , and will be

maintained in a native vegetative state. No development will occur on the

P roperty east of Royal Vista Avenue .

34 . The residential subdivisions that surround the Pr operty were

constructed prio r to the adoption of Lake CountyÔs 2 011 Comprehensive Plan.

T he surrounding developments are , for the most part, of a substantially

higher density than the Project . For example, the three phases of Vista

Grande , taken together, consist of 232 dwelling unit s on 113.74 acres, a gross

density more than twice that of the Project. See Lake Nellie Ex. B, page 2 of

12, para . C.

35 . Other than the smaller Highland Groves PH III development

( 53 percent open space, much of which is open water), the residential

subdiv isions that surround the Project have substantially less open space,

ranging from no open space to 41 percent open space. See Lake County Ex. D .

36 . The buffers proposed by Lake Nellie match those of the contiguous

developments to its north, south, and ea st.

37 . The Project includes five lakeview lots. Those lots do not have private

access to Little Lake Nellie. Thus, the Project will not include docks or

shoreline structures.

38 . Use of native vegetation associated with stormwater facilities was

discussed by Mr. Stringfellow and determined to be beneficial where

practical.

3 Wetlands and open water areas in developments surrounding the Project have previously

been considered by Lake County as open space. Thus, for example, the Highland Groves PH

III subdivision is calculated to have 53 percent open space, despite much of that consisting of

a pond at the eastern end of the subdivision. See Lake County Ex. D.

39 . The evidence regarding the Lake County land use standards,

including the facts stipulated by the parties, indicates that all standards of

density have been met .

40 . Furthermore, the parties stipulated that the treatment of domestic

wastewater by means of the proposed OnSyte DWTS meets or exceeds the

standards established by the Lake C ounty Code and FDEP. The efficacy of

the OnSyte system was acknowledged at the June 22, 2021 , meeting of the

B OCC , during which it was described as Ñ the wave of the future for sensitive

areas. It fits the comp plan. Ò

41 . Lake Nellie provided convincing testimony that the density proposed

for the project is financially and practically necessary to warrant the use of

the more centralized OnSyte system , with its requirements for ongoing

maintenance and monitoring , as well as its substantial investment cost of

roughly $1,600,000 . A development of lesser density would not be able to

absorb that cost, and would likely be served by less effective septic tanks, as

is the case with the surrounding developments.

42 . The evidence in this proceeding demonstrated that the Project m e ets

all requirements for development , including availability of central water,

solid wast e capacity, availability of fire safety and rescue services, and

capacity of schools . The Project is consistent with the concept of an orderly

and logical development pattern , is of similar character and development

pattern as existing approved single - fami ly developments in the area, and is

consistent with surrounding parcels, also zoned R - 6 and PUD , w ith densities

generally in excess of the Project .

43 . Reports issued by county staff concluded that the project m e et s the

Ñthree CsÒ of review, mea n ing that t he Project was found to be in compliance

and consistent with the Lake County Code and Comprehensive Plan , and

compatible with surrounding development . As a result, t he Planning and

Zoning Commission unanimously recommended approval of the PUD. Those

concl usions and recommendation are supported by the evidence adduced in

this information - gathering proceeding.

Traffic

44 . The Project, at build - out, is expected to generate 1,0 59 daily vehicular

trips. Of that number, 78 trips are expected to be within the mor ning peak

hour (with 20 vehicles entering the Project, and 58 vehicles exiting the

Project), and 104 trips are expected to be during the evening peak hour ( with

66 vehicles entering the Project, and 38 vehicles exiting the P roject) .

45 . Lakeshore Drive is segmented in the Lake County concurrency

database. The segment of Lakeshore Drive that includes the Project

boundary has capacity for the projected traffic from the Project at build - out ,

and will not be over capacity.

46 . Except for the segment of Lakesh ore Drive north of the Property from

Harder Road to Lake Louisa Road, particularly at the bridge that crosses the

channel between Lake Minnehaha and Lake Susan and near the intersection

with Hammock Ridge Road where the four - lane road pinches down to two

l anes (the Ñbridge segmentÒ), Lakeshore Drive is LOS D .

47 . Roadways are designed to operate at or near capacity , and can

function at LOS D . Operating at less than capacity is, given the costs of

constructing roadways, considered to be a waste of public res ources.

Lakeshore Drive near the Property, at LOS D, is consistent and in

compliance with Lake County policy .

48 . The bridge segment exc eeds capacity at peak hour and , at LOS F , is

considered to be ÑbackloggedÒ due to traffic volume at peak traffic hour ,

r esulting in a 40 - to 80 - second delay .

49 . The bridge segment is more than two miles north of the boundary of

the Pr operty . Generally, Lake County planning staff reviews traffic numbers

for an area from one mile to three miles from a proposed project. A th ree - mile

study area would be appropriate for projects much larger than Lake Nellie,

which Mr. Earhart characterized as a small project. He stated that Lake

County does not generally perform a safety standard review for an area more

than one mile from a pro posed project. Mr. Earhart testified that he was not

aware of any project in Lake County having previously been denied for traffic

concerns occurring more than two miles away.

50 . Lakeshore Drive has signaled intersections at Log House Road and

Harder Road , north of the P roperty .

51 . The traffic analysis provided with the R ezoning Application indicates

that peak hour traffic from the Project Ñis projected to consume

approximately 3% of the [bridge] segmentÔs capacity .Ò

52 . The traffic study prepared by La ke Nellie was developed using the

data and the methodology provided by Lake County. Annual traffic counts

are provided by Lake County, and are required to be used as collected. Lake

Nellie used the traffic counts provided by Lake County.

53 . There was a fa ir amount of discussion as to the degree to which

changes in traffic volumes resulting from the Covid - 19 restrictions may have

affected the traffic volumes measured in Lake CountyÔs data and, therefore,

Lake NellieÔs traffic study. The evidence indicated t hat initial study data was

collected prior to the onset of the Covid - 19 pandemic. Data was collected in

2020 to substantiate that data. The study began with existing conditions

based on application of Lake County required methodology, and using Lake

County supplied trip counts . That Lake Nellie used Lake County data was

confirmed by Mr. Earhart. Mr. Earhart also confirmed that an applicant for a

development order i s only required to use current application year data.

Mr. Abdallah concluded that, given the r equirement that Lake County data

be used as collected, if adjustments were needed they could only be made by

Lake County. No such adjustments were requested or made. Mr. AbdallahÔs

description of the process was not rebutted. Thus, Lake Nellie cannot be

fa ulted for performing its traffic study as directed.

54 . Lake Nellie also independently collected data that was not collected

during the pandemic. The Lake Nellie data included intersection volume data

for intersections that mark the ends of the designated roadway segments.

There was no suggestion that the intersection data was inaccurate or

unnecessary.

55 . The testimony provided by Mr. Abdallah suggested that in 2020, the

LOS for Lakeshore Drive was LOS C Ñacross the board.Ò Nonetheless, the

parties stipul ated that Lakeshore Drive is LOS D but for the LOS F bridge

segment . In either event, the evidence establishes that the LOS for

Lakeshore Drive is, but for the bridge segment , at acceptable levels of use,

even with the addition of trips projected for the P roject.

56 . The fact that the parties stipulated to the primary conclusions of the

traffic study, i.e., that Lake CountyÔs Public Works Department concluded

that the relevant segment of Lakeshore Drive will not be over capacity , that

Lakeshore Drive has r eached a steady state of traffic volume , that Lakeshore

Drive can function at its current and projected LOS D , and that the Lake

Nellie traffic study complied with Lake CountyÔs requirements for traffic

reports necessary for consideration of rezoning appli cations , is strong

evidence of the validity of the findings and conclusions reached in the study.

57 . The study projected traffic conditions to b uild - out in 2024 or 2025 , and

found that the Project would not result in exceedances of allowable traffic

stand ards. The evidence was persuasive that the traffic study prepared by

Lake Nellie is accurate, and fairly accounts for the traffic trends along

Lakeshore Drive .

58 . The evidence was not sufficient to establish any correlation between

the additional trips ge nerated from the Project and safety - related concerns on

Lakeshore Drive. At most, the additional peak hour trips might exacerbate

the inconvenience of peak hour congestion in the Lakeshore Drive bridge

segment, though with a three percent peak hour contrib ution in volume, such

would be slight at most.

59 . T hough the bridge segment of Lakeshore Drive is at LOS F for peak

hours, there was no evidence that peak hour traffic congestion resulted in

adverse safety impacts. Though there were accidents along Lakesh ore Drive ,

most were south of the signaled intersection at Harder Road and the LOS F

bridge segment. See Lake County Ex. C. Furthermore, t here was no evidence

as to whether the accidents occurred at peak hours, whether there were non -

traffic related causes for the accidents, e.g., drug or alcohol use, or whether

the accidents were related to traffic congestion that warranted the LOS F

designation. 4

6 0. The evidence established, and it was so stipulated, that for the most

part, speed limits on Lakeshore Driv e are observed. There is no data to

suggest that Lakeshore Drive is designed to encourage speeding. However, as

with any road, there are incidents of speeding, carelessness, and reckless

behaviors. There was no evidentiary basis upon which to conclude that such

behaviors would be increased by the Project.

61 . The traffic study included Lake County crash data that showed there

were 58 crashes along the 3.7 mile stretch of Lakeshore Drive from the

CR 561/Lakeshore Drive intersection south of the Property, to the Hammock

Ridge Road/Lakeshore Drive intersection north of the Lake Minnehaha/Lake

Susan bridge, over a three - year period from November 2018 through

October 2021. The evidence demonstrated that the crashes occur at a rate

that is not inconsistent with ot her comparable -- though certainly not

identical -- roads in Lake County. Mr. Earhart did not disagree with

Mr. AbdallahÔs crash study.

62 . The denial of the Rezoning, based on concerns with safety, was largely

the result of concerns expressed by residents of adjoining or nearby

subdivisions who, as might be expected, would prefer to live near a less -

traveled roadway. The testimony, taken at the May 5, 2021 , Planning and

Zoning Board meeting, the June 22, 2021 , meeting of the BOCC, the hearing

4 A number of the accidents near the Harder Road intersection were Ñrear - endersÒ for which

a reasonable inference could certainly be drawn that they were the result of inattentiveness

to the traffic light at that intersection. Such is not likely to be affected by the expected three

percent increase in volume from the Project.

in this proce eding, and as referenced as a basis for the development decision

in Lake CountyÔs Proposed Recommended Order, was largely anecdotal,

supported by no specific evidence of time, place, or circumstance, and

occasionally based on a misunderstanding of the scop e of the Project itself.

Such evidence, as it is, may nonetheless be considered as competent

substantial evidence in land use proceedings before a county commission. See

Marion Cnty. v. Priest , 786 So. 2d 623, 626 - 62 7 (Fla. 5th DCA 2001).

However, what dis tinguishes this matter from Marion County is that Lake

County has an established, required, and data - driven procedure for

objectively determining both levels of service and traffic impacts. The traffic

study was prepared using the methodology required by L ake County and

data provided by Lake County. No witness credibly disputed the conclusions

of the report, and such were generally stipulated. The report concluded that

the Project will not result in adverse traffic impacts along the Lakeshore

Drive corridor . A Rezoning denial here requires that the required traffic

report, the accuracy of which is substantiated, be ignored. Under the

circumstances, such would be an unreasonable result.

63 . In order to address safety concerns that might logically arise from t he

Project, Lake Nellie has agreed to the construction of a four - foot paved

shoulder on Lakeshore Drive along the entire length of the Property. The

shoulder will provide a countermeasure to off - road crashes, allowing for

vehicles that may drift off - road t o recover. The efficacy of paved shoulders is

demonstrated by Lake CountyÔs construction of paved shoulders along bends

in Lakeshore Drive north of the Project, one near Hull Road , and the other

near Kingfisher Drive ( see Lake Nellie Ex. P) , which are sche duled for

completion in March 2022.

64 . Lake Nellie has agreed to the construction of a left turn deceleration

lane for southbound traffic turning into the Project, the resurfacing of

Lakeshore Drive within the limits of the Project, and construction of

sidewalks along Lakeshore Drive and Royal Vista Avenue within the limits of

the Project.

6 5 . Finally, Mr. Earhart confirmed that Lake Nellie agreed to align its

entrance road with that of the subdivision across from it on Lakeshore Drive.

That continuity will also enhance safety.

6 6 . In sum, Lake Nellie agreed to all of the roadway improvements

requested by Lake County staff. The parties stipulated that the construction

of the improvements will enhance safety conditions at the Project segment of

Lakeshore Drive.

6 7 . In addition to the foregoing, Lake Nellie will, as is the case with all

new development, contribute to the Lake County Capital Improvement

Program, which includes road improvements, through payment of the

required traffic impact fee.

6 8 . Mr. Ear hart also suggested that a right turn deceleration lane for

northbound traffic turning into the Project would also enhance safety.

M r. Abdallah testified that such could be examined. Such an improvement

warrants study and consideration.

69 . Lake County is interested in constructing roundabouts at the

Lakeshore Drive intersections at Hammock Ridge Road, State Road 561,

Autumn Lane, and Osprey Point Boulevard, which would constitute safety

improvements. Obtaining right - of - way for a roundabout is a significant cost

for such a project.

Public Comment

7 0 . The written comments of Dean and Donna Bingaman; Marcia and

Thomas Cerzan; Kevin and Linda Gilbert; and Peter Stauder are included in

the record.

7 1 . Mr. and Mrs. Bingaman , who reside at 97 29 Royal Vista Avenue ,

objected to the R ezoning, but erroneously believed that the Rezoning

Application included a variance and a rezoning to Urban Low density. 5 Their

objections were directed to an increase in traffic resulting from the Project,

the effect of additional child ren on local schools, the use of the Property by

gopher tortoises, and the impact of the Project on the residents of Vista

Grande. Mr. and Mrs. Bingaman proposed limiting the development of the

Property to 40 homes.

7 2 . Mr. and Mrs. Cerzan , who reside at 9 717 Royal Vista Avenue , objected

to the impact of the Project on their view of Little/Big Lake Nellie and the

grove of pine trees on the Property. They argued that Ñ[v]acant land should

be left for the next generation to enjoy.Ò They objected that the area around

their property in Vista Grande Ñalready has too many developments and too

much traffic.Ò Mr. and Mrs. Cerzan proposed limiting the development of the

Property to one home per five acres.

7 3 . Mr. and Mrs. Gilbert , who reside at 9 424 Ivywood Street , objected to

the impact of the Project on their view of the Ñvalley and pondÒ on the

Property, and off to the west to the Disney Fireworks. They also objected that

Lakeshore Drive has areas of congestion. Mr. and Mrs. Gilbert oppose the

Rezoning.

7 4 . Mr. St auder, who resides at 11637 Grand Bay Boulevard , objected to

the number of residences to be allowed on the 117 gross acres of the Property .

His objection gen erally misperceived how density is calculated in a clustered

Rural Conservation Subdivision . He als o objected that he would be looking at

houses across his back yard. It should be noted that his residence is west of

Royal Vista Avenue and abuts the 32 acres of the vegetated passive open

space land east of Royal Vista Avenue that is proposed to be mainta ined

under a conservation easement. Finally, Mr. Stauder objected to the traffic on

Lakeshore Drive, noting several instances of reckless driving.

5 An earlier request to amend the Comprehensive Plan Future Land Use designation to

Urban Low Density with a substantially higher number of residential units was withdrawn,

and the Project was redesigned to its current iteration. See Lake Nellie Ex. L, p. 5.

7 5 . Testimony was received at the information - gathering proceeding from

Donna Bingaman, Peter Stauder, Forres t Harvey, Kim Cudmore, and Karen

Rodriguez.

7 6 . Ms. BingamanÔs comments were consistent with her written

comments, though more focused on increased traffic on Lakeshore Drive , and

on Royal Vista Avenue from residents living at the east end of the Project.

She also noted her concern with environmental issues related to residential

uses of pesticides and fertilizers. As stipulated, such environmental issues

are required to be addressed as part of a Preliminary Plat Review, not as part

of the R ezoning .

7 7 . Mr . StauderÔs comments were generally consistent with his written

comments regarding the proposed density of the Project. He also expressed

his desire that Lake Nellie provide sidewalks and bike paths. 6

7 8 . Mr. Harvey , Ms. Cudmore, and Ms. Rodriguez each sp oke in support of

the Project. Mr. Harvey and Ms. Cudmore stated that Pillar Homes is a

reputable and locally - owned company that has a history of well - planned

quality development s . Ms. Rodriguez noted that Lake Nellie had agreed to all

of Lake CountyÔs req uests and that, in her view, the Project, as conditioned,

fulfills a legitimate public purpose, and its denial would be arbitrary and

unreasonable.

A PPLICABLE L AW

79 . This proceeding is governed by s ection 70.51 and LDC sections

14.17.00 through 14.17.24 .

8 0 . S ection 70.51(18) provides that:

The circumstances to be examined in determining

whether the development order or enforcement

6 The testimony at hearing established that Lake Nellie planned to include sidewalks as part

of the Project, but their extent was somewhat unclear. However, t he minutes of the Planning

and Zoning Board meeting includes a notation that Lake Nellie Ôs representative mentioned

Ñthat sidewalks would be required within the development and along Lakeshore Drive and

Royal Vista Avenue.Ò Lake Nellie Ex. L, p. 8.

action, or the development order or enforcement

action in conjunction with regulatory efforts of

other governmental parties, is unreasonable or

unfairly burdens use of the property may include,

but are not limited to:

(a) The history of the real property, including

when it was purchased, how much was purchased,

where it is located, the nature of the title, the

composition of the property, and how it was

initially used.

(b) The history or development and use of the real

property, including what was developed on the

property and by whom, if it was subdivided and

how and to whom it was sold, whether plats were

filed or recorded, and whether infrastructure and

other public services or improvements may have

been dedicated to the public.

(c) The history of environmental protection and

land use controls and other regulations, including

how and when the land was classified, how use was

proscribed, and what changes in classifications

occurred.

(d) The present nature and extent of the real

pr operty, including its natural and altered

characteristics.

(e) The reasonable expectations of the owner at

the time of acquisition, or immediately prior to the

implementation of the regulation at issue,

whichever is later, under the regulations then in

ef fect and under common law.

(f) The public purpose sought to be achieved by

the development order or enforcement action,

including the nature and magnitude of the problem

addressed by the underlying regulations on which

the development order or enforcement action is

based; whether the development order or

enforcement action is necessary to the achievement

of the public purpose; and whether there are

alternative development orders or enforcement

action conditions that would achieve the public

purpose and all ow for reduced restrictions on the

use of the property.

(g) Uses authorized for and restrictions placed on

similar property.

(h) Any other information determined relevant by

the special magistrate.

8 1 . The standards established in section 70.51(18) are substantially

mirrored in LDC section 14.17.2 2.

8 2 . Sect ion 163. 3180(2) , Florida Statutes, provides, in pertinent part, that

Ñ[a] local government may meet the concurrency requirement for sanitary

sewer through the use of onsite sewage treatment and disposal systems

approved by the [FDEP] to serve new developme nt. Ò The OnSyte DWTS

meets the standards approved by FDEP, and is far superior to the use of

septic tanks as have been approved for all of the surrounding subdivisions.

8 3 . With regard to t ransportation concurrency, section 163.3180(5)

provides, in pertine nt part, that:

(5)(a) If concurrency is applied to transportation

facilities, the local government comprehensive plan

must provide the principles, guidelines, standards,

and strategies, including adopted levels of service

to guide its application.

(b) Loc al governments shall use professionally

accepted studies to evaluate the appropriate levels

of service. ...

(c) Local governments shall use professionally

accepted techniques for measuring levels of service

when evaluating potential impacts of a propose d

development.

* * *

(h)2. An applicant shall not be held responsible

for the additional cost of reducing or eliminating

deficiencies. When an applicant contributes or

constructs its proportionate share pursuant to this

paragraph, a local government may not require

payment or construction of transportation facilities

whose costs would be greater than a developmentÔs

proportionate share of the improvements necessary

to mitigate the developmentÔs impacts.

* * *

b. In using the proportionate - share formula

provided in this subparagraph, the applicant, in its

traffic analysis, shall identify those roads or

facilities that have a transportation deficiency in

accordance with the transportation deficiency as

defined in subparagraph 4. The proportionate -

share fo rmula provided in this subparagraph shall

be applied only to those facilities that are

determined to be significantly impacted by the

project traffic under review. If any road is

determined to be transportation deficient without

the project traffic under r eview, the costs of

correcting that deficiency shall be removed from

the projectÔs proportionate - share calculation and

the necessary transportation improvements to

correct that deficiency shall be considered to be in

place for purposes of the proportionate - share

calculation. The improvement necessary to correct

the transportation deficiency is the funding

responsibility of the entity that has maintenance

responsibility for the facility. The developmentÔs

proportionate share shall be calculated only for the

needed transportation improvements that are

greater than the identified deficiency.

* * *

3. This subsection does not require a local

government to approve a development that, for

reasons other than transportation impacts, is not

qualified for approval p ursuant to the applicable

local comprehensive plan and land development

regulations.

4. As used in this subsection, the term

Ñtransportation deficiencyÒ means a facility or

facilities on which the adopted level - of - service

standard is exceeded by the exist ing, committed,

and vested trips, plus additional projected

background trips from any source other than the

development project under review, and trips that

are forecast by established traffic standards,

including traffic modeling, consistent with the

Univ ersity of FloridaÔs Bureau of Economic and

Business Research medium population projections.

Additional projected background trips are to be

coincident with the particular stage or phase of

development under review.

8 4 . The primary bas es for the denial of the R ezoning w ere safety concerns

on Lakeshore Drive as a result of the addition of peak hour trips from the

Project on the LOS F bridge segment. That segment experiences delays at

peak hours of between 40 and 80 seconds.

8 5 . Concerns were also expressed that Lakeshore Drive is, more generally,

busy and heavily trafficked . Nonetheless, the evidence was uncontradicted

that it meets accepted LOS designations at all segments except for the bridge

segment.

8 6 . There was no competent substantial evidence that any traffic

accidents were the direct result of peak hour congestion at the bridge

segment or at any other segment of Lakeshore Drive. There was no

competent substantial evidence that safety, as opposed to convenience, was

affected at the LOS F bridge segm ent . More importantly, t here was no

competent substantial evidence that safety would be affected by the projected

three percent contribution from the Project.

8 7 . Section 70.51(18)(a) and LDC section 14.17.22.D.1. allow for

consideration of where the Prop erty is located, and how the Property was

initially used. The Property is located in the midst of previously approved

residential subdivisions of substantially greater density, and containing

substantially less open space. The Property was previously used for

agriculture, a use that is no longer allowed under current comprehensive

plan and LDC regulations. The only allowable use of the Property is

residential.

8 8 . Section 70.51(18)( c ) and LDC section 14.17.22.D. 3 . allow for

consideration of t he history of l and use controls and other regulations,

including how and when the land was classified, how use was proscribed, and

what changes in classifications occurred. As indicated, the Property in 2004

was previously agricultural land as was, by photographic eviden ce, the

surrounding Vista Grande PH I and Highland Groves PH III subdivisions.

The land uses have since, both as a matter of fact and law, changed to

residential use.

89 . Section 70.51(18)( d ) and LDC section 14.17.22.D. 4 . allow for

consideration of the pre sent nature and extent of the Property, including its

natural and altered characteristics. The Property is former agricultural land

that is gradually being replaced by scrub, bushes, and emergent pine. The

Property is suitable for residential development. The open waters and

wetlands, including the shoreline of Little Lake Nellie, are subject to

protection, and will not be developed.

9 0 . Section 70.51(18)( f ) and LDC section 14.17.22.D. 6 . allow for

consideration of :

T he public purpose sought to be achieved b y the

development order or enforcement action, including

the nature and magnitude of the problem

addressed by the underlying regulations on which

the development order or enforcement action is

based; whether the development order or

enforcement action is n ecessary to the achievement

of the public purpose; and whether there are

alternative development orders or enforcement

action conditions that would achieve the public

purpose and allow for reduced restrictions on the

use of the property.

The public purpos e to be achieved as expressed at the BOCC meeting and in

this proceeding is the protection of public safety by limiting the added

vehicular trips onto Lakeshore Drive from the 102 - residence Project. As

established herein, the evidence was not sufficient to demonstrate that the

addition of peak hour trips into and out of the Project , or for that matter more

routine trips during less travelled hours of the day, will have any effect on

public safety. While the approximately three percent contribution of peak

h our trips to the LOS F bridge segment of Lakeshore Drive may result in

some indeterminant increase in ÑbacklogÒ and the existing 40 - to 80 - second

peak hour delay within that segment, there was no evidence that the

contribution will affect the number or sev erity of traffic accidents, or the

incidence of speeding or reckless driving. Furthermore, t he conditions agreed

upon by Lake Nellie, including road resurfacing, shoulder construction , left

turn deceleration lane, and others described herein, are designed to, and

should achieve , the public purpose of alleviating traffic safety issues related

to the Project.

9 1 . Section 70.51(18)( g ) and LDC section 14.17.22.D. 7 . allow for

consideration of the uses authorized for , and restrictions placed on , similar

propert ie s by Lake County. As set forth herein, Lake County has, over time,

authorized the development of subdivisions o f substantially greater density,

and with substantially less open space, th at literally encircle the Property .

9 2 . Section 70.51(18)( h ) and LDC s ection 14.17.22.D. 8 . allow for

consideration of a ny other information determined relevant by the special

magistrate or agreed upon by the parties. In this case, the evidence, both as

stipulated and as developed by evidence adduced at the hearing ,

demonstra tes that the Project meets every standard for approval of the

Rezoning that is not related to traffic, including the effective handling of

domestic wastewater generated by the proposed Project. Traffic - related

issues are addressed elsewhere herein. The res triction proposed, i.e.,

limitation of the Project to one residence per three acres, is unnecessary to

achieve compliance and consisten cy with the Lake County Code and

Comprehensive Plan, and would result in a development that is not

compatible with surrou nding development.

9 3 . The competent, substantial evidence in this proceeding as described

herein established that the denial of the Rezoning is unreasonable or unfairly

burdens use of the property , even under the deferential standard well -

articulated in L ake CountyÔs Proposed Recommended Order. The evidence

was not sufficient, in the view of the undersigned, to warrant the denial of

the Rezoning under the color of advanc ing Ñthe public health, welfare, safety,

or morals of the community .Ò

9 4 . The purpose of this proceeding is to develop a Recommendation to the

BOCC based on the standards established in section 70.51(18) and LDC

section 14.17.22. Lake Nellie provided legal argument in its Proposed

Recommended Order based on , inter alia , issues of impermissi ble spot zoning

and deprivation of Lake NellieÔs constitutionally protected property rights .

Lake Nellie also argued that the application of section 163.3180 prohibits

Lake County from denying the Rezoning based on pre - existing transportation

deficiencies. Lake NellieÔs arguments are not without merit but, in the view

of the undersigned , go beyond the scope of the information - gathering hearing

and factual Recommendation authorized by section 70.51 and the LDC . Thus,

this Recommendation is limited to the fac ts and conclusions set forth

previously .

R ECOMMENDATION

Based upon the foregoing Stipulated Findings , the Findings Adduced at

Hearing, and the Public Comment , the undersigned concludes that the

proposed Rezoning satisfies the requirements of the Lake Cou nty

Comprehensive Plan and Land Development Code, that there is no reason

related to transportation safety to deny the R ezoning , and that the denial of

the Rezoning , under the circumstances presented here, is unreasonable or

unfairly burdens use of the P ro perty . Therefore, it is recommended that the

Lake County Board of County Commissioners approve the application for the

Lake Nellie Crossing Planned Unit Development, Lake County Case No.

RZ - 20 - 39 - 23, subject to the conditions previously agreed upon by L ake Nellie ,

and the following:

1 . Stormwater facilities shall be vegetated with native species where

possible.

2. Sidewalks shall be constructed within the Project and along the

ProjectÔs frontage on Lakeshore Drive and Royal Vista Avenue.

3 . In addition t o the left turn lane for southbound traffic, Lake Nellie and

Lake County shall examine the feasibility of a right turn deceleration lane

into the Project for northbound traffic on Lakeshore Drive . If determined to

advance safety on Lakeshore Drive, t he rig ht turn lane shall meet Florida

Department of Transportation specifications for design and length for a

40 MPH road. Land necessary for the construction of a right turn

deceleration lane shall not be deducted from the open space calculation

qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50

percent open space requirement.

4 . If Lake County determines in the future that a roundabout at the

entrance to the Project would facilitate traffic flow and enhance safety, Lake

Nellie, or its successor homeownersÔ association or maintenance entity , shall

donate land within its ownership and control to Lake County for use as right -

of - way for the roundabout. That donation shall not be deducted from the open

space calculation qualifying Lake Nellie for 102 units under the one dwelling

unit per acre/50 percent open space requirement.

D ONE A ND E NTERED this 18th day of January, 2022 , in Tallahassee, Leon

County, Florida.

S

E. G ARY E ARLY

Special Magistrate

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Fil ed with the Clerk of the

Division of Administrative Hearings

t his 18th day of January, 2022 .

C OPIES F URNISHED :

Melanie N. Marsh, Esquire Cec elia Bonifay, Esquire

Lake County Attorney's Office Akerman Senterfitt

Post Office Box 7800 420 South Orange Avenue, Suite 1200

Tavares, Florida 32778 Orlando, Florida 32801

Thu Pham, Esquire Nicole Blumenauer, Esquire

Akerman LLP Lake County Attorney's Office

420 South Orange Avenue , Suite 1200 315 West Main Street

Orlando, Florida 32801 Tavares, Florida 32778

David Langley, Esquire Sean M. Parks , Chairma n

Lake County Attorney Office Board of County Commissione rs

315 West Main Street Lake County, Florida

Tavares, Florida 32778 315 West Main Street

Tavares, Florida 32778

Jennifer Barker, Interim County Manager

Lake County, Florida

315 West Main Street

Tavares, Florida 32778