Walton County Development Services Division Current Planning Department Staff Report

To: Through: From: Re: Walton County Development Services Division Current Planning Department Staff Report Board of County Commissioners Mac Carpenter, Manager Melissa Ward, Project Manager Meeting Date: September 8, 2009 Petition for Abandonment to privatize the streets within Paradise Retreat Subdivision Applicant: Paradise Retreat Homeowners Association Board of Directors, 12815 Highway 98 West, Suite 100, Miramar Beach, Florida 32550, Phone (850) 837-1071, Fax (850) 654-1932. Agent: Location: Request: Project Number: 09-008-00002 Public Comment: Eddie R. Grant, President of Paradise Retreat Homeowners Association Board of Directors, 460 Sand Cay Drive, Miramar Beach, Florida 32550, Phone (850) 598-9801, Fax (850) 654-9802, e-mail ergrant@cox.net. The proposed roads for privatization by the abandonment of rights by Walton County are located within the Paradise Retreat Subdivision, more specifically known as Sandy Cay Drive, Secret Harbor Drive, and Marigot Bay Drive. Parcel identified by tax ID number 30-2S-21-42790-AAA- AAAA. The Homeowners Association of Paradise Retreat request the County to abandon the public rights as dedicated in the plat thereof recorded in Plat Book 15, Page 72-72C, in the public records of Walton County, Florida. The request presented asks to allow the Association to install entrance gates on Sandy Cay Drive, on either end of the subdivision only, to impede through traffic from US Highway 98 and Scenic Gulf Drive within the subdivision. Staff has received nine (9) letters in opposition to the privatization. Additionally, the Association has provided three (3) votes opposing the proposed abandonment and subsequent gating of the subdivision. However, staff has received two (2) letters in favor of the privatization; and, additionally, the Association has provided ninety-nine (99) votes in favor of the proposed abandonment and subsequent gating of the subdivision. Technical Review Committee: The Technical Review Committee unanimously voted to move this petition for abandonment to privatize the streets within Paradise Retreat Subdivision forward to the Planning Commission for recommendation to the Board of County Commissioners. 1

Planning Commission: The Planning Commission, at public hearing on August 13, 2009, entertained a motion to recommend the Board of County Commissioners conditionally approve the privatization of the common areas within Paradise Retreat at Miramar Subdivision. The motion failed for lack of majority vote. Commissioners Patton, Gardner, and Maxson vote for and Commissioners Terrell, Merrifield, and Marse voted against. 1 Finding of Facts: A petition for privatization must meet the minimum requirements of F.S. 336.12 and 336.125. Having met those minimum requirements, this petition is forwarded, ultimately, to the Board of County Commissioners for decision. This report attempts to delineate the issues to be decided without assuming the authoritative role of decision maker. Suggested conditions introduced for consideration in the decision making process: a) If abandonment is not approved, County considers placing speed limit signs and notices to public at the entrance to the subdivision; b) Enter into development agreement with the County to ensure the Association will maintain the stormwater facilities as required by development order for Seashells on the Beach PUD and all subsequent development orders in relation to Paradise Retreat Subdivision; c) Provide clarification of the extent or limitations for privatization on Secret Harbor Drive by submitting a survey with necessary legal description for recording with the adopted resolution to abandon; d) Record an ingress/egress easement over all sidewalks within Paradise Retreat at Miramar subdivision to Walton County for the benefit and use of the public; e) Record any necessary easements for access and utilities within common areas of the Paradise Retreat at Miramar subdivision to Walton County; f) All proposals for gating the community must be approved by the Planning Department and obtain all necessary permits prior to construction; g) The Association must obtain and subsequently provide the County copies of all agreements with the other remaining developers / parcel owners included in the original Seashells on the Beach PUD, outside the residential subdivision known as Paradise Retreat, for operation and utilization of stormwater management facilities and / or privatized streets; h) Provide necessary entry gate information to Walton County Emergency Operations and the South Walton Fire District (all proposal must be approved by these entities prior to application to the Planning Department or permitting); and 1 Copy of Planning Commission minutes are attached as an exhibit. 2

i) Provide the Planning Department a copy of the recorded amended covenants and restrictions for Paradise Retreat. DISCUSSION/FINDINGS Pursuant to Florida Statutes 336.12 and 336.125, the Board of County Commissioners of Walton County, Florida, have the authority to abandon public rights for ingress and egress on rights of way dedicated in recorded subdivisions while conveying the rights to the roads to the homeowners association. The following criteria apply to such applications. 336.125 Closing and abandonment of roads; optional conveyance to homeowners' association; traffic control jurisdiction.-- (1) (a) In addition to the authority provided in s. 336.12, the governing body of the county may abandon the roads and rights-of-way dedicated in a recorded residential subdivision plat and simultaneously convey the county's interest in such roads, rights-of-way, and appurtenant drainage facilities to a homeowners' association for the subdivision, if the following conditions have been met: 1. The homeowners' association has requested the abandonment and conveyance in writing for converting the subdivision to a gated neighborhood with restricted public access. On April 24, 2009, the Paradise Retreat owners association submitted a completed petition for abandonment to the Planning Department 2. 2. No fewer than four-fifths of the owners of record of property located in the subdivision have consented in writing to the abandonment and simultaneous conveyance to the homeowners' association. On June 17, 2009, the association provided votes exceeding 82% of owners in favor of the petition to abandon 3. 99 YES Graph of Paradise Retreat Vote 18 PENDING 3 NO 3. The homeowners' association is both a not-forprofit corporation organized and in good standing under chapter 617, and a "homeowners' association" as defined in s. 720.301(9) with the power to levy and collect assessments for routine and periodic major maintenance and operation of street lighting, drainage, sidewalks, and pavement in the subdivision. Staff ascertained that Paradise Retreat at Miramar Beach Home Owners Association, under document number N02000002001, date filed 03/13/2002, is an active not for profit organization in the State of Florida 4. 2 A copy of the submitted application is on public record in the Planning Department. 3 See attached spreadsheet of calculated votes. The actual vote sheets are in the public record on file in the Planning Department. 4 Copy of the report attached as an exhibit from the website www.sunbiz.org for reference. 3

4. The homeowners' association has entered into and executed such agreements, covenants, warranties, and other instruments; has provided, or has provided assurance of, such funds, reserve funds, and funding sources; and has satisfied such other requirements and conditions as may be established or imposed by the county with respect to the ongoing operation, maintenance, and repair and the periodic reconstruction or replacement of the roads, drainage, street lighting, and sidewalks in the subdivision after the abandonment by the county. The Association submitted Covenants and Restrictions as filed with the Clerk of Court of Walton County, Florida in Official Records Book 2561, Page 875, on November 10, 2003. Additionally, staff recommends a developer agreement between the Association and the County establishing the Association s responsibility for maintenance within the private subdivision 5. (See attached memo from Public Works.) (b) The homeowners' association shall install, operate, maintain, repair, and replace all signs, signals, markings, striping, guardrails, and other traffic control devices necessary or useful for the private roads unless an agreement has been entered into between the county and the homeowners' association, as authorized under s. 316.006(3)(b), expressly providing that the county has traffic control jurisdiction. The developer installed required infrastructure for Paradise Retreat; however, staff recommends that Public Works department review for any current deficiencies to the Code or Plan by completing a final inspection. Thereafter, the development agreement should reflect all necessary modifications made by the Association prior to completion of the abandonment 6. (2) Upon abandonment of the roads and rights-of-way and the conveyance thereof to the homeowners' association, the homeowners' association shall have all the rights, title, and interest in the roads and rights-of-way, including all appurtenant drainage facilities, as were previously vested in the county. Thereafter, the homeowners' association shall hold the roads and rights-of-way in trust for the benefit of the owners of the property in the subdivision, and shall operate, maintain, repair, and, from time to time, replace and reconstruct the roads, street lighting, sidewalks, and drainage facilities as necessary to ensure their use and enjoyment by the property owners, tenants, and residents of the subdivision and their guests and invitees. The provisions of this section shall be regarded as supplemental and additional to the provisions of s. 336.12, and shall not be regarded as in derogation of that section. Staff notes the Associations desire to maintain the streets and stormwater management facilities for the subdivision. The Association submitted on June 23, 2009, a copy of the 5 A copy of the recorded covenants and restrictions are attached to this report as an exhibit. Note that the stormwater management facilities are not mentioned. 6 The engineering review memo by Robert G. Horner, P.E. erroneously reflects a future plat, however the plat for Paradise Retreat has already been accepted and recorded. 4

minutes and budget approved by the Association board for maintenance/upkeep of the facilities 7. HISTORY: Seashells on the Beach PUD approved with development order number 1369 as approved and issued by the Board of County Commissioners of Walton County, Florida (herein referred to as County ). The developers subsequently amended their PUD by development order 1431 and 05-001-00067. Subsequent development orders are 1423 for Beach Retreat Condominium, 1488 for Paradise Retreat Subdivision, 1551 for Cottage Retreat and 1701 a temporary trailer for Paradise Retreat. March 13, 2002, Paradise Retreat at Miramar Beach Homeowners Association, Inc. (herein referred to as Association ) filed for their Florida Non Profit Corporation name and remains in good standing as required to be a corporation not for profit organized and in good standing under chapter 617, and a "homeowners' association" as defined in s. 720.301(9) with the power to levy and collect assessments for routine and periodic major maintenance and operation of street lighting, drainage, sidewalks, and pavement in the subdivision. The Association asked the County to take over maintenance of the public dedicated rights-ofway; however, the request was denied because the developer installed improvements below County standards 8. In other words, the County does not maintain public roads where pavers are installed instead of asphalt. This reason, along with other factors, is the basis of the County s lack of interest in taking over the maintenance of Sandy Cay Drive, Secret Harbor Drive, and Marigot Bay Circle. In light of that, the Association asked the County to allow them to gate the roadways to slow or stop through traffic on their subdivision streets from US Highway 98 to Scenic Gulf Drive (a/k/a Old Hwy 98). The 7 A copy of that submittal is attached to this report as an exhibit. This in no way reflects the County s acceptance or approval of this budget or reported financial projection. 8 See the attached Exhibit letter dated June 24, 2008 from Aaron Warren with the four options offered the HOA. 5

request to gate Sandy Cay Drive was denied because Florida Statute prohibits obstruction of public roads / access. Planning Commission Meeting Discussion: Several issues were brought up in the Planning Commission meeting addressed in this report: The petitioners primary concern in requesting the abandonment/privatization is safety issues. The petitioners allege that the amount of cars using the subdivision streets is so voluminous that it impedes their use and enjoyment of the residential streets. Further, the petitioners allege that because a number of lots / houses in the subdivision are rental properties, and because they cannot control the number of or size of vehicles per house, some residents/renters are parking in such a manner that blocks traffic within the streets. A public comment 9 suggested that if the roads are gated, the police and emergency vehicles will not be able to get to the homes in the subdivision. Permits for gates are reviewed by the emergency responders (such as the Fire District) and applicants must supply entry codes, ensure proper spacing for emergency vehicle entry and identify points of contact for all emergency personnel. One concern is that if the petition for abandonment/privatization is not approved, then the County will automatically be responsible for maintenance and accidents. However, the County is, in no way, responsible for maintenance of the roadways. The rights-of-way and common areas are owned by the homeowners association. They are maintained by the Association. Though the roadways have a granted public access, the County has not accepted maintenance, responsibility or deed of the roadways at this time. If this abandonment request is denied, the Association will continue to maintain the roadways, stormwater facilities and other common areas. Public comment was made in regard to impeding traffic flow from US Highway 98 through the subdivision to Scenic Gulf Drive. Some comments were made regarding the commercial out parcels along US Highway 98 in opposition of the obstruction of through traffic because the appraised value of the property was considered based upon these access points. 9 Copies of public comment are attached as exhibit. 6

BOUNDARY SURVEY: The applicant submitted a copy of the recorded plat for the subdivision Paradise Retreat. The proposed privatization area is entirely within the platted boundaries as shown in Plat Book 15, pages 72-72C, more specifically known as Sandy Cay Drive, Secret Harbor Drive, and Marigot Bay Drive. The petitioners will apply for the proposed gates only if the abandonment or privatization is approved with the subsequent resolution recorded. It is important to realize that the roadways on this plat are the rights-of-way which include the area where the sidewalks are installed. If the Commission by majority vote abandons the public s interest in the roads, the public s access over the sidewalks needs to be addressed. An easement recorded in favor of the County may be required prior to the recordation of the abandonment resolution. Map of directions to proposed abandonment area. 7

SITE INSPECTION: Upon site inspection on May 26, 2009, staff noted pavers installed at entrances on Sandy Cay Drive and at the roundabouts or intersections with Marigot Drive. Staff noted that homes appeared to be built very close to the right of way lines. During the drive through the subdivision, service vehicles were parked in the roads, blocking traffic. The front yards appeared shallow with some tandem parking hanging over into the roads. The north end of Sandy Cay Drive, intersecting with Highway 98, bisects the commercial out parcels of the Seashells PUD. Both east and west portions of the property on the north entrance are, at the time of this report, vacant. The subdivision entry sign is located substantially south from US Highway 98, at the actual entrance into the subdivision. The sidewalks appear constructed entirely within the right-of-way per the approved plans. CURRENT USE: The area proposed for privatization is located in Walton County, on the south side of U.S. 98 near the Okaloosa County line, situated between Emerald Shores Subdivision and Maravilla Subdivision extending south to Scenic Gulf Drive (Old U.S. Highway 98). The development of Seashells is a phased, planned unit development and situated on approximately 47.76 acres designated coastal center on the future land use maps of Walton County, Florida. The 50-foot rights-of-way, as platted in Plat Book 15, Pages 72-72C, dedicated to the public. The installation of asphalt paving in the rights-of-way complies with the development order. The developer installed pavers without prior approval by the County. The roads currently serve as traffic interconnectivity between Scenic Gulf Drive and US Highway 98, per the approved Seashells PUD. Phases I, II, IV, V, and VII are complete. The land allocated for Phases III and VI has been cleared and rough graded. All stormwater management facilities and internal roadways are complete. 8

The Association shall install, operate, maintain, repair, and replace all signs, signals, markings, striping, guardrails, and other traffic control devices necessary or useful for the private roads [F.S. 336.12.2] as a part of this process for privatization. Staff commented that the Association shall place in writing their intent to comply with this statutory provision; however, the Association has not submitted to date documentation of association meetings, minutes, notes, or documentation of discussion of the requirement. During review, staff noted that the Covenants and Restrictions do not mention the maintenance of the stormwater facilities or roads. The Association must revise their covenants and restrictions to reflect that responsibility or enter into a developer agreement with the County of such maintenance and record the same with the Clerk of Court of Walton County, Florida. FUTURE USE: The subject property is located at the far western end of Walton County, Florida, south of US Highway 98. The subject property has a land use designation of coastal center. This land use category primarily is residential in character with some supporting uses. A development in this category must connect to public facilities, designed with Scenic Corridor Guidelines in mind, to be compliant with the code and plan of Walton County, Florida. Based upon the Land Development Code requirements in section 2.06.00, with regard to planned unit developments, that the general intent to provide flexible land use and design regulations, to permit planned diversification, and integration of uses and structures, for the benefit of the public health, welfare and safety (emphasis added). Specifically, the approved development showed intent to integrate the commercial component with the residential, improve public welfare and safety by inclusion processes in traffic mitigation, and compliance to general intent with the planned unit development concept. This development planned to be a connector between US Highway 98 (and its commercial components) and Scenic Gulf Drive (as well its commercial components) for both the development s expected residential use and for the public in surrounding and adjacent uses/properties. The privatization of the roadways, gating of the interconnection platted and improved, and disconnect from the surrounding uses is not in keeping with intent of the Planned Unit Development concept or the approved design. Another aspect of the privatization is the amendment to the planned unit development for Seashells. Per section 2.06.02 C. Substantial Deviations to PUD Conceptual or Detailed Plans. A substantial deviation to a PUD Conceptual or Detailed Plan shall be deemed to occur if any of the following criteria are triggered: 3) An increase in off site trip generation of more than 15 percent; 5) Any modification of the conditions of approval that results in a significant impact on surrounding properties. If a substantial deviation occurs, that part of the PUD plan, which has been deviated from, shall be resubmitted for review and approval as outlined above. Plans shall be reviewed subject to the comprehensive plan land development code in place at the time of resubmittal (emphasis added). The Association has not applied for a deviation from the original PUD at this time. Staff requested a revised traffic study to reflect any increase in traffic being pushed out onto the existing overburdened roadways, in conjunction with the amount of traffic that may not be allowed to access interconnection because of the gate, to qualify if a significant increase is noted in comparison to the traffic analysis originally submitted. The Association has 9

not submitted the revised analysis; however, it is noted, cross access is a priority of Walton County. Future closure of this cross circulation route, while providing traffic calming along this busy locally designed right-of-way, shall impact cross access and traffic circulation with a de minimus impact on traffic circulation anticipated. 10 This land use category, for property exceeding 40 acres, intended for mixed-use projects. The commercial component of the developments in coastal center require access to commercial and workplace use in projects located along US 98 and US 331 be subject to the minimum spacing standards, joint driveway provisions and cross access easement of the Walton County Scenic Corridor Guidelines, as provided in Chapter 13 of the Code. The property developed in conjunction with approved development orders for Seashells Planned Unit Development, which development includes a residential component, platted as Paradise Retreat. The developer by plat dedicated all roadways, along with common areas and preservation areas, throughout the subdivision to the public. Since the improvements of the roadways by the developer, the public freely traversed through the development as designed by the traffic circulation plan approved in the planned unit development. While staff perceives the public need for interconnectivity, the apparent current and future best use of these particular rights-of-way are best determined by the Board of County Commissioners. Objective C-4.7: Level of Service Standards: The County will not issue development orders for any development that result in the reduction of the level of service standards as identified in Policy C-4.6.1. Upon review by Walton County Public Works, the engineer noted as a concern that the original PUD traffic report utilized the fact that the entire PUD would be accessing US 98 and CR 2378; therefore, closing the interconnecting roadway to the public may reduce the level of service standard as reported. Objective T-1.3: Rights-of-Way - The County shall protect existing and future rights-of-way from encroachment in order to ensure the safe and efficient operation of the transportation system. Upon review by Walton County Public Works, the engineer noted as a concern that the original PUD and subsequent plat support the interconnection of US Highway 98 and CR 2378. The Association s plans of gating the roadway effectively encroaches into the public access road and impedes public vehicular circulation for that route possibly reducing levels of service and operation of the transportation system. However, staff s observations of the tandem parking encroaching into the public roadway in addition to the service vehicles parking along the edges of the roadway should reflect the complexity of this issue. Policy T-1.5.2: Review of development proposals and plans for all single family subdivisions, multifamily residential, commercial, office or industrial uses shall include appropriate consideration of transportation impacts through the submission of a circulation, parking and access plan. The approved Seashells development was determined compliant with this provision because the traffic report submitted by the developer made use of the fact that the entire development accesses US 98 and CR 2378. Distribution of development traffic to these roadways along with redistribution of traffic through the subdivision is inclusive in the calculation for traffic concurrency; therefore, closing the roadway does not consider the 10 July 27, 2009, memo to Mac Carpenter from Robert G. Horner, P.E., Engineering Department/Public Works Division, regarding Paradise Retreat Petition for Abandonment (ENG-1987N-Final) [Exhibit to Report] 10

transportation impacts associated with the privatization. Further, during the design plan, in relation interconnectivity, neither the County nor the engineer of record proposed to plan the lots on side streets to reduce entry onto the main public roadway through the proposed subdivision. The maintenance of the public roadway known as Secret Harbor Drive must be considered in relation to the approximately 38 driveways entering the roadway approximately 10-feet apart. Policy T-1.6.1: Through the updated Land Development Regulations, require private developers to address pedestrian and bicycle circulation including internal walks, bicycle paths and storage areas, as well as linkage to other projects and transportation modes where possible. The approved Seashells development was determined compliant with this provision because the traffic report submitted by the developer made use of the fact that the entire development accesses US Highway 98 and CR 2378. Conversely, the development cannot be compliant with this provision for linkage to other projects and transportation modes where possible if the privatization, with subsequent gating, is approved. Staff would, however, recognize compliance if the Association entered into a development agreement with the County to ensure that the sidewalk and paths are not obstructed by any future proposed gates for the community. Exhibits to Report: A. Engineer s Memo B. South Walton Fire District (conditional approval) C. Subdivision Aerials / Photos (set of 9) D. Copy of Plat E. Parcel / Vote Map F. Map/Depiction of proposed gating by the HOA G. Minutes and Budget proposed by HOA H. Paradise Retreat at Miramar Beach HOA, Inc. Entity Name Sheet I. Planning Commission Meeting Minutes J. Letter From Aaron Warren dated June 24, 2008 K. Public Comments 11

Public Works Division Engineering Department 97 Montgomery Circle, DeFuniak Springs, Florida 32435 Phone 850-892-8109 Facsimile 850-892-8402 Date: July 27, 2009 To: Mr. Mac Carpenter Development Services Manager From: Robert G. Horner, P.E. Engineering Department Subject: Paradise Retreat, a Request for Abandonment (09-008-00002) of Rights-of-way. Engineering Technical Review ENG-1987N - FINAL Paradise Retreat was approved as a part of a Planned Unit Development (PUD) that included various landuse in differing phases. The Paradise Retreat Plat dedication declares that all streets, common areas, common preservations, and easements are dedicated to the public. The following engineering observations are made regarding the privatization of the streets. 1. Clarify limits of the Sandy Cay right-of-way to be privatized. Public access or an access agreement between all parcel owners that were included in the approved PUD parcels may be warranted specifically as it pertains to frontage lots in the commercial / retail type parcels. 2. Privatization of the paver street rights-of-way will provide a public clarification of maintenance responsibilities of the paver street materials. 3. The common areas and the stormwater management facilities associated with the PUD and the privatized rights-of-way should be converted to private dedication along with the streets. In this way the same entity is responsible for operation and maintenance of both components of the road system and its requisite stormwater management plan. 12

4. Clarify through developer agreement as necessary with the other parcel owners that were included in the approved Conceptual PUD, how the operation and utilization of the stormwater management facilities and streets to be privatized will be handled as a part of this abandonment. 5. Cross access across properties is a priority of the Walton County. Future closure of this cross circulation route, while providing traffic calming along this busy locally designed right-of-way, shall impact cross access and traffic circulation with a deminimus impact on traffic circulation anticipated. CONDITIONS The following Conditions shall apply to the Development Order and require no action at this time. They are provided at this time for informational purposes only. 1. A recorded copy of the Homeowner Association Documents with a responsible maintenance entity identified for the proposed stormwater management system shall be provided to Walton County Engineering prior to sign-off of the final plat. 2. The conditions and requirements of all previously approved Development Orders and changes shall remain in effect. cc: Janice Floyd Engineering Dept. Engineering Tech 1 Allen Brown, Assistant Director, Walton County Public Works Melissa Ward - Project Manager with Walton County 13

1 14