Board of County Commissioners Case No. SE S. Brent Spain, Esquire Laura J. Dedenbach, AICP August 19, 2014

Special Exception Standards Under Florida Law The applicant has the initial burden of demonstrating that its request complies with all of the County’s land use regulations and is not adverse to the public interest. If the applicant fails to meet its initial burden, the burden never shifts to those opposing the request to demonstrate through competent substantial evidence that the request does not meet the published criteria.

Variance Standards Under Florida Law The applicant has the burden to demonstrate that all of the requirements for a variance have been met. The burden upon an applicant for a variance is more extensive than the burden upon a party seeking approval of a use by special exception. A prerequisite to the granting of a zoning variance is the presence of an exceptional and unique hardship to the individual landowner. The hardship may not be self-created – e.g., a voluntary agreement is self-created and provides no basis for variance (Maturo v. City of Coral Gables, 619 So. 2d 455 (Fla. 3d DCA 1993)).

Laura J. Dedenbach, AICP Planning Qualifications Master of Arts, Urban & Regional Planning – UF Master of Arts, Urban & Regional Planning – UF PhD Candidate: Urban & Regional Planning – UF PhD Candidate: Urban & Regional Planning – UF Practicing in Florida for 17 years Practicing in Florida for 17 years Member of AICP since 2001 Member of AICP since EARs, 13 Comprehensive Plans, 3 LDCs 11 EARs, 13 Comprehensive Plans, 3 LDCs Expert witness in 18 Florida counties Expert witness in 18 Florida counties Chair, Alachua County Board of Adjustment Chair, Alachua County Board of Adjustment

SE

Special Exception Criteria (Tab 9) Section – Section – The following criteria must be met for a special exception: 1) 1)The use shall be consistent with the comprehensive policy plan. 2)The use shall be similar and compatible with the surrounding area and shall be consistent with the pattern of surrounding development. 3)The use shall not act as a detrimental intrusion into a surrounding area. 4)The use shall meet the performance standards of the district in which the use is permitted. 5)The use shall be similar in noise, vibration, dust, odor, glare, heat producing and other characteristics that are associated with the majority of uses currently permitted in the zoning district. 6)Landscape buffer yards shall be in accordance with section 24-5 of the Orange County Code. Buffer yard types shall track the district in which the use is permitted. BZA Members concluded proposed special exception does not meet criteria #1, 2, 3, and 5. (Tab 13).

Criteria #1 Plan Consistency The application is inconsistent with: The application is inconsistent with: FLU B & FLU FLU B & FLU No Floor Area Ratio (FAR) established for Low Density Residential future land use category No Floor Area Ratio (FAR) established for Low Density Residential future land use category FLU 1.4.2, 1.4.4, 8.2, 8.2.1, , UD 2.2.2, & UD FLU 1.4.2, 1.4.4, 8.2, 8.2.1, , UD 2.2.2, & UD Compatibility Compatibility FLU 2.3.6(1), (2), (3), (4), (5), & (7) FLU 2.3.6(1), (2), (3), (4), (5), & (7) Criteria for residential to non-residential use conversion Criteria for residential to non-residential use conversion

Criteria #2 Similar, Compatible, & Consistent The proposed religious facility is: More intense than surrounding low-density residential uses More intense than surrounding low-density residential uses 13,000 square feet on 1.75 acres = 0.17 FAR 13,000 square feet on 1.75 acres = 0.17 FAR (9,000 square feet on 1.75 acres = 0.12 FAR) Hours of operation Hours of operation 5:30AM to 11:30PM (Summer)/6:00AM to 8:00PM (Winter) – 14 to 18-plus hours of operations 5:30AM to 11:30PM (Summer)/6:00AM to 8:00PM (Winter) – 14 to 18-plus hours of operations 143 PM Peak Hour Trips (*99 PM Peak Hour Trips) on Palm Lake Drive (versus 1 PM Peak Hour Trip for a single-family home on the site) (ITE Land Use 562 & 210). 143 PM Peak Hour Trips (*99 PM Peak Hour Trips) on Palm Lake Drive (versus 1 PM Peak Hour Trip for a single-family home on the site) (ITE Land Use 562 & 210). Not compatible – no non-residential uses on Palm Lake Dr. Not compatible – no non-residential uses on Palm Lake Dr. Building location and size not consistent with surrounding pattern of development of low density, large lot single-family homes Building location and size not consistent with surrounding pattern of development of low density, large lot single-family homes

Criteria #3 Detrimental Intrusion Site in Palm Lake Manor neighborhood Site in Palm Lake Manor neighborhood No non-residential uses on Palm Lake Drive No non-residential uses on Palm Lake Drive Access from Palm Lake Drive, a local road Access from Palm Lake Drive, a local road Hours of operation (14-to-18 hours, 7 days a week) Hours of operation (14-to-18 hours, 7 days a week) Parking area for 80 cars Parking area for 80 cars Cut-through traffic on Palm Lake Drive from Dr. Phillips Blvd. (proposed left-in, right-out and signage do not prevent this issue) Cut-through traffic on Palm Lake Drive from Dr. Phillips Blvd. (proposed left-in, right-out and signage do not prevent this issue)

Proposed Site Plan

Character of Neighborhood

Character of Palm Lake Drive Neighborhood road Low traffic volume No pavement markings Hedges and walls as buffers Shallow swales

Cut-through Traffic

Previous Denials Karam Duggal: SE Karam Duggal: SE Jain Temple: SE Jain Temple: SE Haitian Mission Baptist Church of Bethany: SE Haitian Mission Baptist Church of Bethany: SE Jaigopaul Bisnauth: SE Jaigopaul Bisnauth: SE

Karam Duggal (Tab 5) SE R/S; R-CE 3,750 sq. ft.; unpaved parking spaces; 90 seats 7 days, predominant Fri., Sat., Sun., 9:00AM to 10:00PM; applicant proposed “left-turn only” signs and moved entrance to Farley Street. “use constitutes a non-residential intrusion” (Staff Report (“SR”)) “hours of operation will disrupt the privacy of homes” (SR) “will route non-residential traffic thru residential streets” (SR) Failed to comply with 38-73(2)-(3) BZA denied special exception and variance, BOCC approved; Court overturned BOCC’s approval (Tab 10)

Jain Temple (Tab 6) SE LDR; R-CE LDR; R-CE 1,400 sq. ft. home; 7 unpaved spaces; 10 congregants 1,400 sq. ft. home; 7 unpaved spaces; 10 congregants 6:00PM to 8:00PM daily 6:00PM to 8:00PM daily “The proposed use acts as a detrimental intrusion into a residential area.” (SR) “The proposed use acts as a detrimental intrusion into a residential area.” (SR) Violates FLU “disruption of residential areas by poorly located and designed commercial activities” (SR) Violates FLU “disruption of residential areas by poorly located and designed commercial activities” (SR) Variance for unpaved parking and drive aisles did not meet variance criteria Variance for unpaved parking and drive aisles did not meet variance criteria BZA unanimously denied special exception and variance, BOCC accepted BZA’s denial. BZA unanimously denied special exception and variance, BOCC accepted BZA’s denial.

Haitian Mission Baptist Church of Bethany SE (Tab 7) LDR; R-1A LDR; R-1A 10,000 sq. ft. building; 31 unpaved parking spaces; 50 congregants 10,000 sq. ft. building; 31 unpaved parking spaces; 50 congregants Wed., Fri. 7:30PM to 10:00PM Wed., Fri. 7:30PM to 10:00PM Sun. 9:15AM to 10:00PM Sun. 9:15AM to 10:00PM “located interior to an established older neighborhood with single-family homes” (SR) “located interior to an established older neighborhood with single-family homes” (SR) “not similar or compatible with neighborhood and would impact residences along Tomoka Dr.” (SR) “not similar or compatible with neighborhood and would impact residences along Tomoka Dr.” (SR) BZA unanimously denied special exception and variance, BOCC accepted BZA’s denial. BZA unanimously denied special exception and variance, BOCC accepted BZA’s denial.

Jaigopaul Bisnauth – Temple SE (Tab 8) LDR; R-2 LDR; R-2 2,359 sq. ft; 60 seats; 20 unpaved parking spaces 2,359 sq. ft; 60 seats; 20 unpaved parking spaces Fri. 7:00PM to 9:00PM; Sun. 10:00AM to 1:00PM Fri. 7:00PM to 9:00PM; Sun. 10:00AM to 1:00PM “location is not appropriate and is an intrusion into a residential community” (SR) “location is not appropriate and is an intrusion into a residential community” (SR) “located on a residential roadway not a collector or arterial” (SR) “located on a residential roadway not a collector or arterial” (SR) “will route non-residential traffic through a residential area” (SR) “will route non-residential traffic through a residential area” (SR) “expansion will exacerbate the adverse impacts” (SR) “expansion will exacerbate the adverse impacts” (SR) BZA unanimously denied special exception and variance, BOCC unanimously upheld denial. BZA unanimously denied special exception and variance, BOCC unanimously upheld denial.

Recommendation – Affirm the BZA’s Unanimous Denial of SE Not consistent with Plan Not consistent with Plan Not similar, consistent, or compatible with the surrounding low-density, single-family residential development Not similar, consistent, or compatible with the surrounding low-density, single-family residential development Detrimental intrusion into the residential area Detrimental intrusion into the residential area Access via a local residential road – no direct access from S. Apopka-Vineland Rd. Access via a local residential road – no direct access from S. Apopka-Vineland Rd. Will route non-residential traffic through a residential area and promote cut- through traffic Will route non-residential traffic through a residential area and promote cut- through traffic

Recommendation – Affirm the BZA’s Unanimous Denial of Requested Variance The applicant has not demonstrated that its variance request complies with Section 30-43(3) The applicant has not demonstrated that its variance request complies with Section 30-43(3) The applicant’s predecessor- in-interest was paid for utility easement The applicant’s predecessor- in-interest was paid for utility easement Easement is in the public record and applicant knew or should have known of such limitations when property was purchased Easement is in the public record and applicant knew or should have known of such limitations when property was purchased Purchase price of $20k took into account limitations of easement Purchase price of $20k took into account limitations of easement

Conclusion