D.R. Horton challenging Osceola Commission vote to reject proposed 320-home community

Homebuilder D.R. Horton is expected to file an appeal with the Florida Department of Administrative Hearings (DOAH) after Osceola County Commissioners refused to reconsider a 3-2 vote to deny a 320-home subdivision.

Commissioner Fred Hawkins said the project, slated for 92 acres on Pine Grove Road, was incompatible with the surrounding neighborhood, even though the project met the county’s own strict development guidelines.

The Pine Grove Preliminary Subdivision Plan was recommended for approval by the county’s staff, the school district and the Planning Commission.

It had the proper zoning and land use for Low Density Residential (LDR) development and exceeded the mandated number of product types in the county’s updated subdivision siting standards. The density of 3.88 units per acre was less than half the maximum allowable, and the developer increased the front, side and rear yard setbacks, including maintaining a 40-foot buffer between the new community and its neighbors to the south.

Hawkins made the motion to deny the project because the adjacent neighborhood had larger lots than would be allowed in LDR zoning. He noted that Horton initially sought to annex into the city of St. Cloud, but withdrew the request after the city’s Planning Commission voted to recommend denial.

“We only have one chance to get this right,” he told his colleagues at the Dec. 9 meeting, persuading Commissioners Brandon Arrington and Peggy Choudhry to join him in blocking the project.

Land use attorney Jo Thacker, a partner with Nelson Mullins, represented D.R. Horton through the lengthy permitting process. She argued that the project met the legal requirements for approval. The question of compatibility was decided in 2014, when the board approved the LDR zoning, she said.

“As far as compatibility, the (comprehensive) plan is the compatibility. It’s LDR to LDR. It’s not lot size," she said in the Dec. 9 meeting. “You require three different product types. They’ve given you four different types. They’ve followed all the rules. They haven’t asked for any variances.”

Hawkins suggested Horton should have bought development rights from another property owner and redesigned the subdivision at a lower density — with larger lots and larger homes.

Dave Tomek, Osceola County’s Community Development Director, said the county’s LDC makes allowances for developers to submit projects below the minimum density requirements in LDR if the surrounding area has established neighborhoods with larger lot sizes. He declined to comment specifically on the Pine Grove case, citing the pending appeal.

Thacker sought a reconsideration vote from the board last week, noting that commissioners had approved two plat applications at the same meeting that were designed with similar densities to the Pine Grove project.

“Given that issues of density and lot size were not relevant for other plat applications, it begs the question as to why such matters were relevant to the subject PSP,” she wrote to the board.

But Hawkins said he wouldn’t agree to rehear the case without a court order or a redesign.

Nelson Mullins notified the county in January that is would seek relief under the state’s Land Use and Environmental Dispute Resolution statute, which calls for the DOAH to appoint a special magistrate to attempt to mediate a resolution between the county and the land owner/developer.

Thacker was similarly unsuccessful in winning board approval for a controversial subdivision on Boggy Creek Road in January. Ashton Woods was seeking a major amendment to the Marina Bay Planned Development to allow for construction of 429 homes in the third phase of the PD. The proposed density was well within the standards for LDR land use, but commissioners unanimously denied the project.

Tomek said the Marina Bay project was different because in that case, the property already had entitlements at a lower density that would have maintained the same lot sizes as the first two phases of the community.

“Nobody was forcing them to come in and amend it to today’s standards,” Tomek said. “We worked hard with them to try to get it cleaned up. We got them to preserve more of the shoreline and protect the trees. The one piece they just couldn’t get to was the product type mix so it was more conducive to what was around it.”

Lee Steinhauer, government affairs liaison for the Greater Orlando Builders Association, said the recent votes on Marina Bay and Pine Grove highlight the conflicts between the county’s code and political expediency. The decisions often feel arbitrary, he said.

“From our perspective, it’s certainly sending mixed messages,” he told GrowthSpotter. “They’re ignoring their own land development code, and it was just updated a couple of years ago.”

Commissioner Brandon Arrington made a similar lot-size argument last June when he made the motion to deny a rezoning application and PSP for a townhouse project called Salinas. In that case, the applicant, Bellavista Building Group, had initially sought a Medium Density Residential zoning but revised the application to LDR to comply with the future land use.

“I’m glad the folks in that community are OK with townhomes,” Arrington said, “but if you get a chance, just look at the aerial and look at the lot sizes of what’s around it.”

The official reason Arrington and the other commissioners cited for denying the project was that the schools and roads could not handle the influx of vehicles and students from the 86 townhomes. The school district estimated that the entire project would generate 25 students.

The project is just north of Lennar’s 992-home Storey Creek community now in development, which will stretch from Ham Brown Road to Pleasant Hill and would supply more than 10-times the number of students to the same middle and high schools. The elementary school serving Salinas would have capacity, according to the district.

Bellavista CEO Aldo Martin declined to comment on the case, noting that the commission has scheduled a reconsideration in March. But Steinhauer said it illustrates the inconsistent decision-making by Osceola Commissioners.

“It lacks a certain fairness,” Steinhauer said. “As an industry, we’d like to know what the rules are, and when we follow them to not be denied on an arbitrary basis.”

Decisions like the one denying the Salinas project prompted Osceola’s School Board to call a joint workshop with county commissioners last September where they advised the board not to use school capacity as a reason to deny new residential development.

EDITOR’S NOTE: An earlier version of this story misstated the commission district where the Salinas project is located. It is in Commissioner Choudhry’s district.

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