Orange County commission stands up to state law

The Orange County Board of County Commissioners has decided to stand against a new state law that could invalidate growth control measures the board has approved and pause progress on ordinances. 

County staff presented the board with a series of repeal options for measures including Vision 2050, a map for comprehensive planning and growth within the county the board adopted. Ordinances staff is working on for Reams Road and the Shingle Creek and St. Johns River basins also could be impacted. 

The discussion was prompted by Senate Bill 180, signed into law June 26 by Gov. Ron DeSantis. 

Senate Bill 180 was created as an emergency management bill at both the state and local levels, especially during hurricane recovery and property damage as a result of hurricanes. It is aimed at retroactively limiting “restrictive or burdensome” rules restricting home reconstruction after hurricanes, but some amendments broadened the scope of the bill. 

Georgiana Holmes, deputy county attorney, said there are prohibitions in a section of the bill. The county may not propose or adopt any moratorium on construction, reconstruction or redevelopment of any property damaged by hurricanes Debby, Milton and Helene; counties are not allowed to propose or adopt more restrictive or burdensome amendments to its comprehensive plan or land-development regulations; counties are not allowed to propose or adopt more restrictive or burdensome procedures concerning review, approval or issuance of a site plan, development permit or development order, to the extent that those terms are defined by state law; and any moratorium or restrictive or burdensome comprehensive plan amendment, land development regulation or procedure shall be null and void.

If a resident or business owner brings civil action against the county for a violation of the section, they are entitled to a preliminary injunction preventing implementation of their claimed violation, and if successful, the resident or business owner is entitled to reasonable attorney fees and costs. The county would need to issue a notice of intent to repeal within 14 days after receipt. 

Another section of the bill focuses on the same prohibitions but provides for a different timeline as it is a one-year prohibition following a storm rather than being retroactive. One section also limits challengers to being a resident or business owner, while the other allows any person to challenge the county. 

LOCAL CONCERNS

Senate Bill 180 could have an impact on the ordinance the board directed county staff to create regarding Reams Road. In February, the board discussed Reams Road, which experienced flooding as a result of Hurricane Milton. Jon Weiss, deputy county administrator, said the ordinance would have the “effect of adopting a moratorium on wetland and floodplain impacts within the Reedy Creek sub basin” and also “implementing a more burdensome, restrictive procedure relative to applying stormwater discharge.”

Although Weiss said it might be “good to slow or possibly pause” efforts to draft the moratorium ordinance in light of the bill, the board directed staff to proceed. 

Weiss said the county will have to look into the special protection area overlays for Shingle Creek and St. Johns River basins to ensure the bill does not impact the county’s ability to develop and adopt regulatory aspects in regards to these projects.

Large concern came regarding Vision 2050, which is a multi-year project eight years in the making that would be a new comprehensive plan for the county. The plan was intended to provide efficiencies in the county’s land-development processes and encourage additional uses in certain areas.

It has been sent to the state for review and has not yet been found in compliance. 

“Vision 2050 and Orange Code were not intended to be more restrictive or burdensome, but given that you’ve got a brand new comprehensive plan, a brand new set of land development regulations and every parcel of the county was reviewed for its future land use and assigned a new future land use in the new zoning district, is it possible that there may be a property owner out there that would view Vision 2050 or Orange Code as more restrictive or burdensome?” Weiss said. 

He said the county has not received a challenge or a notice on Vision 2050, but it’s possible.  

“We had a deadline, I think it was the end of June, to actually adopt Vision 2050 or our current plan would have been out of compliance, so there are no good options with respect to Vision 2050 and Orange Code,” he said. “We find ourselves in quite the pickle because of some of the challenges and the difficulty in administering and prodding the predictability of a certain set of rules and processes.”

Weiss said no one on staff wanted to repeal Vision 2050 after the numerous hours that went into its creation and getting it to the point of adoption. 

He presented options to the board that included repealing Vision 2050 to avoid uncertainty and potential legal fees and give staff time to review the plan and Orange Code in light of Senate Bill 180 before bringing it back to the board. Another option could be delaying the implementation date of Vision 2050. 

Weiss said the commission also could approve a repeal if it receives a notice of a challenge. He said this option allows for implementation of the plan and keeps some regulations intact, but there are several disadvantages, including creating uncertainty for the county, sections of Vision 2050 and Orange code not being easily or logically severable and development could be proceeding at risk if policies and codes can’t be relied upon. 

If the county does receive a notice, it could deny a request to repeal and go to court, which could allow the courts to better define “restrictive and burdensome” and keep some regulations intact but also could be costly to defend and the county risks paying legal fees. There also is uncertainty in litigation as it could result in the entire plan or parts of it being thrown out, for example. 

Commissioners opted not to repeal Vision 2050 and Orange Code and move forward with work on ordinances relating to growth and land uses. 

Commissioner Kelly Martinez Semrad said although she doesn’t agree with some aspects of Vision 2050, she will fight to uphold the board’s decision to approve the plan. 

“If we don’t stand up now and fight Senate Bill 180, this is the domino effect, because then they say, ‘You know what? Our Amendment 10, annexation, it’s more restrictive, it’s more burdensome,’” she said. “Charter Amendment Nine, super majority to build in our parks, it’s more burdensome, it’s more restrictive. … It doesn’t stop, and it just keeps going. This is when we stand up and we fight, and we challenge the state.”

Commissioner Nicole Wilson said the bill is getting in the way of “literally life-saving measures.”

“The moratorium proposal for Reams Road, that wasn’t because of some aspirational goal of development pattern restructure out there; that’s because they are underwater,” she said. “That’s because people could not get out of their homes, businesses closed for over a month. Those are decisions that were left to the local government under the Florida constitution. … We’ve had investments in reporting and data and research and science, and we should not have to take a single half-step back on that.”

Wilson said the county having 14 days to respond to a notice of an alleged violation is intimidating and puts a target on the county’s back. 

“I cannot think of a better reason to have a target on our back than to prevent someone from drowning in their own backyard,” she said. “What we have to do is govern in a way that isn’t speculative. We have to govern in a way that I believe takes the information we’ve gotten from our public, the data and information we’ve received from our science-based reports and our urban planning experts, and then we move forward. If someone out there says we’re wrong, then we’ll argue that then. But until that time, I say that we don’t retreat one half-step on Vision 2050, on Orange Code, on any of the studies that have been included in that list of really important things for people’s safety.”

For an hour, residents urged commissioners to stand their ground and not allow the repeal of growth control measures.

Windermere’s David Gonzalez, an urban designer who during public comments of the July 15 commission meeting, said Vision 2050 “empowers and protects property owners by supporting flexible, forward-thinking land uses and development patterns.

“Abandoning these softly crafted plans now would be like scrapping a finely tuned sports car after years of careful engineering, only to continue to drive a rusty, 30-year-old clunker,” Gonzalez said during public comments. “Capitulating to the empty threats of a suburban sprawl developer would neuter not only the intent of the voter-approved run but also the authority of the board to guide responsible land use policy. Will we allow Orange County to be smothered by suburban sprawl or will we guide it towards a rich, diverse future where it’s defined by distinctive world settlements, thriving suburban neighborhoods in dynamic urban districts?”