HomeMy WebLinkAbout1997 10 01 Regular Item A
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 32708-2799
Telephone (407) 327-1800
Community Development
PLANNING AND ZONING BOARD
REGULAR AGENDA ITEM:
II. A.
HORTON ALTERATION TO GREENBRIAR AT TUSCA WILLA
FINAL DEVELOPMENT PLAN
STAFF REPORT:
APPLICABLE LAW AND PUBLIC POLICY:
Sec, 20-360(a) of the City Code states in part" Upon approval of the final development plan, the
use of the land and construction, modification or alteration of any buildings or structures within
the planned unit development shall be in accordance with the approved final development plan,
rather than with other provisions of this chapter."
Sec. 20-3 60(b) of the City Code states" After completion of construction of the area covered by a
final development plan, no changes may be made except under the procedures provided below:
(2) Any uses not authorized by the final development plan may be added to, modified
or deleted from the final development plan in accordance with the provisions of
Section 20-359."
Sec, 20-359, Alterations to the Final Development Plan,
(a) Any request for an alteration, revision, addition or deletion to the final development plan shall
be submitted to the City Clerk for review by the Planning and Zoning Board. The Board shall
review the request and make finding of fact as to whether the proposal constitutes a change in the
preliminary development plan also. If so, the request must first be processed according to section
20-358. If not, the Board shall review the proposal and the staff recommendations to determine
whther or not the proposed change is substantially consistent with the approved final development
plan, If the proposal is determined to be consistent, the Planning and Zoning Board may approve
or approve with modifications the proposed change,
(b) If the proposal is determined not to be substantially consistent with the approved final
development plan, the Board shall forward to the City Commission a recommendation for
approval, approval with modifications, or denial of the request, stating their reasons for such
action, The Commission shall then review the proposal and the recommendations of the staff and
the Planning and Zoning Board and either approve, approve with modifications, or deny the
request stating their reasons for such action.
1. BACKGROUND:
APPLICANT:
David Auld
D.R. Horton Custom Homes
6250 Hazeltine National Dr., Suite 102
Orlando, FL 32822
(407) 857-9101 X 31
OWNER:
D,R. Horton Custom Homes
(majority property owner for properties under consideration in Phase II)
(Controlling membership in Phase II Homeowners Association)
REQUEST:
For the Planning & Zoning Board to:
(1) determine that the change is substantially consistent with the approved final
development plan.
(2) approve or approve with modifications the proposed change.
PURPOSE:
The (Revised) Covenants and Restrictions for Greenbriar Subdivision Phase II are not
reflected in the City's records of the final development plan, The amendments to the
document gave architectural control to Winter Springs Development Corp. and to the
Greenbriar Home Owners Association,
PROPERTY:
Location: On the east side of Greenbriar Lane near the southern portion of Northern Way.
Legal Description: A PORTION OF "PHILIP R. YOUNGE GRANT" PLAT BOOK 1,
PAGES 35, 36, 37 LYING IN SECTIONS 7 AND 18, TOWNSHIP 21 SOUTH,
RANGE 31 EAST, CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA.
[GREENBRIAR SUBDIVISION PHASE 2 CONTAINING 18.68 ACRES]
ACREAGE:
1.74 acres = total area under consideration encompassing Lots 91 to 118 inclusive. (See
colored portion of lots on map)
EXISTING LAND USE OF SUBJECT PROPERTY:
Some lots have existing single family residential and some are vacant.
CHRONOLOGY OF SUBJECT PROPERTY:
October 11, 1971
April 22, 1985
May 30, 1985
September 4, 1985
September 4, 1985
December 12, 1988
December 19, 1988
December 19, 1988
(Date not given)
December, 1995
June, 1996
December, 1996
January, 1997
FUNDING:
Tuscawilla annexation ordinance # 64 adopted.
Greenbriar Phase I Plat approved.
Greenbriar PUD private covenants recorded.
Greenbriar Phase I Final Plat recorded.
1st amendment to private covenants.
Greenbriar Phase 2 plat approved.
Developer recorded supplement to private covenants.
Greenbriar Phase 2 Final Plat recorded.
Subsequent amendment (not provided) gives the HOAJARB power
to reduce setback to 30 feet.
Building permit issued for Lot 103,
Certificate of occupancy issued for Lot 103.
Building permits issued for structures encroaching into 401 buffer.
Building permits issued for structures encroaching into 401 buffer.
No monies from the City are required.
II. CONSIDERATIONS:
I, No Preliminary Development Plan of Greenbriar Phase 2 exists.
2, There is no indication of a forty (40) foot buffer on the Final Development Plan for
Greenbriar Phase 2.
3, There is indication of a forty (40) foot buffer on the development plan for
Greenbriar Phase 1 community swimming pooL
4, The document titled First Amendment to Declaration of Covenants, Conditions,
and Restrictions Greenbriar (Also known as Greenbriar at Tuscawilla) [signed
June, 20, 1985]states in Article VIII Architectural Review Board, Section 2.
Review by the Architectural Review Board "Nothing herein shall authorize the
ARB or Developer to issue a waiver of any provision, section or requirement of
the Code of Ordinances for the City of Winter Springs, Florida." (page 5)
Section 3. Rules. Statements of Policy. and Effect of ARB Approvals. states "The
ARB shall have no authority to promulgate a rule, statement or policies in conflict
or inconsistent with the Code of Ordinances of the City of Winter Springs,
Florida. "
5. In Section 25. Rules and Regulations. It states "The Association, from time to
time, may adopt, alter, amend and rescind reasonable rules and regulations
governing the use of the Lots, parking of vehicles on Lots and of the Common
Area, which rules and regulations shall be consistent with the rights and duties
established by this Declaration."
6. The document titled Declaration of Covenants, Conditions, and Restrictions
Greenbriar, in Section 31. Specific Lot Restrictions and Covenants. It states
[Seminole County recordation book 1642 on Page 1989; recorded May 29, 1985]
" (a) Building setback requirements along the perimeter of the subdivision shall be
as follows:
(1) Twenty-five (25) feet from Greenbriar Lane, a sixty foot (60) right-of-way
to be constructed and dedicated to the Public.
(2) Twenty-five (25) feet from the Florida Power Corporation Easement which
is recorded in Official Records Book 183, Page 130 of the Public Records
of Seminole County, Florida.
(3) Forty (40) feet along the golf course.
(4) One hundred (l00) feet from the centerline of Howell Creek."
7. Letter to John Goveruhk, City Manager, dated May 30, 1995, from William
Barfield claiming that D.R. Horton, Inc. Has obtained an assignment of
developer's rights concerning the Greenbriar at Tuscawilla Property. The
document "Partial Assignment of Developer's Rights" has stated [on Official
Records Book 2923, Page 1582 of Seminole County] in 32. Specific Lot
Restrictions and Covenants. (a) Building setback requirements along the perimeter
of the subdivision shall be as follows: (3) Forty (40) feet along the Golf Course.
However the ARB in conjunction with the ARB of Winter Springs Development
Corp. Shall at its discretion approve encroachments from a forty (40) foot setback
to a thirty (30) foot setback along the Golf Course.
8. Letter to Robert Guthrie, City Attorney, dated August 29, 1997 from William
Barfield. (Enclosed)
III. ANALYSIS OF REQUEST FOR PLANNING & ZONING
BOARD INTERPRETATION:
THE FOLLOWING SUMMARIZES THE DATA AND ISSUES WHICH STAFF ANALYZED
IN REVIEWING THIS APPEAL TO THE P & Z BOARD FOR INTERPRET A TION.
A. JUSTIFICA TION FOR REQUEST:
I. The applicant believes that the 40 foot setback is unduly restrictive considering the
type of houses being built in Phase 2. The houses built in Phase I are
2. Staff believes that a reduction of the buffer from 40 feet to 30 feet would not
negatively impact the Golf Course, nor the functional and aesthetic enjoyment of
properties adjacent to the Golf Course.
3. Granting of the reduction in the forty (40) foot buffer to thirty (30) feet by the
Planning & Zoning Board is not in conflict with the covenants and restrictions of
Greenbriar at Tuscawilla, since the document of covenants and restrictions allows
for modifications.
B. POTENTIAL NEGATIVE EFFECTS TO SURROUNDING PROPERTIES:
1. Possible potential negative effect might be that purchasers of lots along the Golf
Course in Phase 1 may object claiming preferential treatment. The practical effect,
in the view of owners in Phase 1, may be that the functional use of their property is
not on equal basis as those properties in Phase 2.
2. Phase 1 property owners along the Golf Course may seek to have their buffer
reduced from the forty (40) feet to what is now requested in Phase 2 - thirty (30)
feet.
III. FINDINGS:
*
No Preliminary Development Plan of Greenbriar Phase 2 exists.
*
There is no indication of a forty (40) foot buffer on the Final Development Plan for
Greenbriar Phase 2.
*
There is indication of a forty (40) foot buffer on the development plan for
Greenbriar Phase 1 community swimming pool.
*
The applicant must present the proposed change to reduce the forty (40) foot
buffer for those properties bordering the Golf course to thirty (30) feet, per Sec.
20-360 and Sec. 20-359 of the Code of Ordinances of the City of Winter Springs.
* Staff believes that a reduction of the buffer from 40 feet to 30 feet would not
negatively impact the Golf Course, nor the functional and aesthetic enjoyment of
properties adjacent to the Golf Course.
* The document titled First Amendment to Declaration of Covenants, Conditions,
and Restrictions Greenbriar (Also known as Greenbriar at Tuscawilla) [signed
June, 20, 1985]states in Article VIII Architectural Review Board, Section 2.
Review by the Architectural Review Board "Nothing herein shall authorize the
ARB or Developer to issue a waiver of any provision, section or requirement of
the Code of Ordinances for the City of Winter Springs, Florida." (Page 5)
Section 3. Rules, Statements of Policy, and Effect of ARB Approvals. states "The
ARB shall have no authority to promulgate a rule, statement or policies in conflict
or inconsistent with the Code of Ordinances of the City of Winter Springs,
Florida. "
IV. STAFF RECOMMENDATION:
Staff recommends the Planning & Zoning Board determine that the proposed change:
(1) does not constitute a substantial or substantive change in the approved Final
Development Plan; and,
(2) that the change is substantially consistent with the approved Final Development
Plan; and,
(3) approve the proposed change to reduce from forty (40) feet to thirty (30) feet the
buffer along the Golf Course in Greenbriar Phase 2.
ATTACHMENTS:
I. Greenbriar Phase 2 Final Development Plan.
2. May 30, 1995 Letter to John Goveruhk from William Barfield, including document
"Partial Assignment of Developer' s Rights".
3. Letter, dated August 29, 1997, to Robert Guthrie, City Attorney, from William
Barfield.
4. Copy of Sec. 20-359 and Sec. 20-360 of the Code of Ordinances of the City of
Winter Springs.
5. Copy of relevant sections of the document titled First Amendment to Declaration
of Covenants, Conditions, and Restrictions Greenbriar (Also known as Greenbriar
at TuscawiIIa) [signed June, 20, 1985].
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SEMINOLE co. FL.
authority to waive any provision, section or requirement of the
Code of Ordinances for the City of Winter Springs, Florida.
~ Section 2. Review by the Architectural Review Board. No
building, fence, wall, or other structure shall be commenced,
erected or maintained upon Greenbriar, nor shall any exterior
addition to or change or alteration be made to any existing
building, fence, wall or other structure, nor shall any land-
scaping be commenced or existing landscaping substantially
altered or changed, unless and until the plans and specifications
showing the nature, kind, shape, height, materials and location
of the same shall have been submitted to and approved in writing
by the ARB. The Developer and his assigns are exempt from these
requirements of prior submission to and approval by the ARB.
Nothing herein shall authorize the ARB or Developer to issue a
waiver of any provision, section or requirement of the Code of
Ordinances for the City of Winter Springs, Florida.
Section 3. Rules, Statements of Policy, and Effect of ARB
Approvals. The ARB may promulgate rules governing the form and
content of plans to be submitted for approval or requiring speci-
fie improvements on Lots or Dwelling Units, including, without
limitation, exterior lighting and planting, and may issue state-
ments of policy with respect to approval or disapproval of the
architectural styles or details, or other matters, which may be
presented for approval. Such rules and such statements of policy
may be amended or revoked by the ARB at any time, and no inclu-
sion, omission from or amendment of, any such rule or statement
shall be deemed to bind the ARB to approve or disapprove any
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4. That Section 25 of Article IX shall be deleted in its
entirety and the following inserted in lieu thereof:
"Section 25. Rules and Regulations. No Owner shall violate
the rules and regulations for the use of the Lots and the Common
Area, or any rule, regulation or code section of the Code of
Ordinances, City of Winter Springs, Florida, as the same are from
time to time adopted by the Association or the City. The
prohibitions and restrictions contained in this Article shall be
self-executing without implementation by rules and regulations;
but the foregoing shall not be construed as an implied prohibi-
tion against the Association's extending the scope of such prohi-
bitions and restrictions by, from time to time, adopting rules
and regulations consistent with this Declaration. The Associ-
~tion, from time to time, may adopt, alter, amend and rescind
reasonab+e rules and regulations governing the use of the Lots,
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parking of vehicles on Lots and of the Common A~ea, which rules
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and regulations shall be consistent with the rights .and duties
established by this Declaration."
5. That Article XII shall be added after Article XI on p~ge
37 as follows:
ARTICLE XII
COMPLIANCE WITH CODE OF ORDINANCES
CITY OF WINTER SPRINGS, FLORIDA
"The Developer and all parties to this Agreement and all
subsequent parties to this Agreement, agree that nothing herein
shall be construed as a waiver of any section of the Code of
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HIGLEY & BARFIELD; P.A.
Attorneys At Law
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JUN 0 c. 1995
The Maitland Forum
2600 Lake Lucien Drive
Suite 2',g
Maitland. Aorida 32751.7234
CITY OF WINTER SPRINGS
City Manager
Telephone (407) 875-11n
Fax (407} 875-1722
David A. Higley
William E. Barfield
May 30, 1995
John Govoruhk, City Manager
City of Winter Springs
1126 E. State Road 434
Winter Springs, FL 32708
Re: D.R. Horton, Inc.!Greenbriar at Tuscawilla Property
Dear Mr. Govoruhk:
The purpose of this letter is to confirm to you that D.R. Horton, Inc. has obtained an
assignment of developer's rights of the Winter Springs Development Joint Venture concerning their
Greenbriar at Tuscawilla Property. Pursuant to the terms and conditions of the Partial Assignment
of Developer's Rights, D.R. Horton, Inc. has acquired all of Winter Springs Development Joint
Venture's rights to control the construction activities on their property within 40 feet of the golf
course, as well as any construction activities which are undertaken within 75 feet of the boundary
of any portion of the Greenbriar at Tuscawilla Property adjoining or adjacent to the golf course
property. The Partial Assignment of Developer's Rights has been properly recorded within the
Public Records of Seminole County, Florida. I am enclosing a copy of the Partial Assignment of
Developer's Rights for your review.
If you have any questions or comments please do not hesitate to contact me.
Sincerely, c//?
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. Willia. ~ Ie .
WEB/dmd
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D.R. Horton, Inc.
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PARTIAL ASSIGNMENT OF D.EVELOPER'S RIGHTS
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This PARTIAL ASSIGNMENT OF DEVELOPER'S RlGHTS ("Assigrunent") is made and ~
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entered into as of the ~day of 111~ ' 191.L, by and between WINTER SPRINGS.
DEVELOPMENT JOINT VENTURE, a Florida general partnership (the "Developer"), and D.R.
HORTON, INC., a Delaware Corporation (the "Assignee"),
\V I T N E SSE T H:
WHEREAS, Developer's predecessor in interest, Winter Springs Development Corp.oration,
a Florida corporation subjected certain property (the "Golf Course Property") to certain coyenants,
restrictions, easements, charges and liens pursuant to that certain Declaration of Covenants and
Restrictions (the "Declaration") dated September 28, 1987, recorded September 30, 1987 in Official
Records Book 1892, Page 54, Public Records of Seminole County, Florida; and
WHEREAS, the Golf Course Property is described in the Declaration; and
WHEREAS, Assignee is the o\.vner of certain property adjacent to a portion of the Golf
Course Property, which property is described in Exhibit "A" attached hereto and expressly
incorporated herein (the "Greenbriar at Tuscawilla Property"); and
'NHEREAS, the Declaration provides in the fourth Whereas clause as the intent of the
Declaration:
. (b) To develop the Golf Course Property with a character which will assure its
being a continuing asset to the present and future owners of land in the surrounding
area. . .;
and
INSTRUMENT PREPARED BY & RETURN TO:
William E. Barfield, Esquire
2600 Lake Lucien Dr., Ste. 237
Maitland, FL 32751
(407) 875-1177
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. SEP 05 ' 97 11 : 26AM KRUP~f:~~ACHER & ASSC
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WHEREAS, Assignee intends to develop the Greenbriar at Tuscawilla Property into a
subdivision containing single family homes, some of which will be adjacent to the Golf Course
Property; and
\VHEREAS, Article III, Section 6 of the Declaration provides:
* .. '"
Section 6. Architectural Control. No building, wall, sign, flag, pennant, fence, or
other structure or improvement of any nature shall be erected, placed or altered on
any of the GolfCoW"se Property unless the construction plans and specifications ~d
specifications and plans shov,ring the location of the structure and landscaping as may
be required by the Developer have been submitted to the Developer in duplicate and
approved in v.Titing by the Developer. No building erected, placed, or altered on the
Golf Course Property shall be more than thirty.five (35) feet in height, as measured'
from the finished ground floor elevation to the peak of the finished roof. Each'
building, wall, fence, or other structure or improvement of any nature, together with
the landscaping, shall be erected, placed or altered upon the premises only in
accordance VY'ith the plans and specifications and plot plan so approved. Refusal of
approval of plans, specifications and plot plan, or any of them, may be based on any
reasonable ground provided any such disapproval shall be in v.-Titing specifying the
grounds for disapproval. Any material change in the exterior appearance of any
building, wall, sign, fence, or other structure or improvements, and any change in the
appearance of the landscaping, shall be deemed an alteration requiring approval. The
Developer shall have the power to promulgate such rules and regulations as it deems
necessary to carry out the provisions and intent of this paragraph. The Developer
may designate a representative to act for the Developer and may employ personnel
and consultants to act for it. Prior approval by the Developer shall be necessary
before any such exterior finishing color is changed.
The landscaping on the Golf Course Property, including, without lii"l1itation,
the trees, shrubs, lawns, walkways and ground elevations, shall be maintained in
accordance with said Declarations of Restrictions and Covenants as originally
installed unlrss the prior approval for any substantial change is obtained from the
Developer. '
All submittals shall be submitted to Developer in duplicate prior to any such
construction, modification, alteration or any other changes to the structures, walls,
etc. Developer shall have ten (10) working days from receipt of such submittals in
25Idr)lort\~r~~n~ibn
April 21. 199~
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which to approve or disapprove. Developer's failure to approve such submittals within said ten (10)
day period shall be deemed to be an approval;
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V/HEREAS, Article IV, Section 7 of the Declaration provides:
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Section 7. Right of Assignment. Developer may assign any and all rights, powers,
obligations and privileges under this instrument to any other corporations,
associations or persons which are a successor developer to Developer which shall be
deemed to mean a developer who is holding property for sales within Tuscawi11a in
the ordinary course of business. In the event that no such assignment is made, then
Developer may assign its rights hereunder to Owner. Such assignment must take
specific reference to this Declaration of Covenants and Restrictions and shall not
become effective until recorded in the Public Records of Seminole County, Florida:;
. ,. *
and
WHEREAS, Article IX Section 32(a)(3) of the Declaration of Covenants, Conditions and
Restrictions of Greenbriar recorded in O.R. Book 1642, Page 1958 as amended by the First
Amendment to Declaration of Covenants Conditions and Restrictions recorded in O.R. Book 1667,
Page 1321; the Second Amended to Declaration of Covenants, Conditions and Restrictions of
Greenbriar recorded in O.R. Book 1764, Page 1620; the Third Amendment to Declaration of
Covenants and Restrictions recorded in O.R. Book 1774, Page 1313; the Fourth Amendment to
Declaration of Coven~.,ts, Conditions and Rcstnctior!S record~d in Q,R. Book 1783, Pilge 0905; the
Fifth Amendment to Declaration of Covenants, Conditions and Restrictions recorded in O.R. Book
1835, Page 1596; the Sixth Amendment to Declaration of Covenants, conditions and Restrictions
I
recorded in O.R. Book 1850, Page 1967; and the Supplementary Declaration of Covenants,
Conditions and Restrictions recorded in O.R. Book 2025, Page 0785, all of which are recorded in
the Public Records of Seminole County, Florida, (hereinafter collectively referred to as "Greenbriar
Declaration" provides
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Building setback requirements along the perimeter of the subdivision fuall~
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(3) Forty (40) feet along the Golf Course. However the ARB in
conjunction with the ARB of \Vinter Springs Development Corp,
shall at its discretion approve encroachments from a forty (40) foot
setback to a thirty (30) foot setback along the Golf Course.
* ... ..
WHEREAS, Deyeloper predecessor in interest, Winter Springs Development Corp.,
subjected Greenbriar at TuscawiIla Property to certain Declarations of Covenants and Restrictions
(the "Covenants and Restrictions") dated May 29, 1985 and recorded in O.R. book 1642, Pa~e 1942
of the Public Records of Seminole County, Florida, and
WHEREAS, Article III, Section 6 provides:
'" '" *
Section 6. Architectural Control. No building, wall, sign, flag, pennant,
fence, or other structure or improvement of any nature shall be erected, placed or
altered on any of the Properties unless the construction plans and specification plans
and specifications and a plan showing the location of the structure and landscaping
as may be required by the Developer have been submitted to the Developer in
duplicate and approved in writing by the Developer. Each building, wall, fence, or
other structure or improvement of any nature, together with the landscaping, shall be
erected, placed or altered upon the premises only in accordance with the plans and
specifications and plot plan so approved. Refusal of approval of plans, specifications
and plot plan, or any of them, may be based on any ground, including purely
aesthetic grounds, which in the sole discretion of the Developer seem sufficient. Any
change in the exterior appearance of any building, wall. sign, fence, or other structure
or improvements, and any change in the appearance of the landscaping, shall be
deemed an alternation requiring approval. The Developer shall have the power to
promulgate such rules and regulations as it deems necessary to carry out the
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prOVJSIOnS and intent of this paragraph, The Developer may designate a
representative to act for the Developer and may employ personnel and consultants
to act for it.
Prior approval by the Developer shall be necessary before any such
exterior finishing color is changed. The landscaping, including, without limitation,
the trees, shrubs, lawns, walkways and ground elevations, shall be maintained in
accordance with said Declarations of Restrictions and Covenants as originally
installed unless the prior approval for any substantial change is obtained from the
Developer.
All submittals shall be submitted to Developer in duplicate prior to
any such construction, modification, alternation or any other changes to the
structures, walls, etc. Seller shall have fifteen (15) working days from receipt of such
submittals in which to approve or disapprove.
* * *
and
WHEREAS, Article IV, Section 7 provides:
* * *
Section 7. Right of Assignment. Developer may assign any and all rights,
powers, obligations, and privileges under this instrument to any other corporations,
associations or persons. Such assignment must make specific reference to this
Declaration of Covenants and Restrictions and shall not become effective until
recorded in the Public Records of Seminole County, Florida.
* * *
\VHEREAS, Developer has agreed to assign certain of i~ rights and obligations to the extent
transferable under Article III, Section 6 of the Declaration to Assignee in accordance with the terms
and provisions of Article IV, Section 7 of the Declaration; under Article IX Section 32(a)(3) of the
Greenbriar Dec1arati'ons; Article III, Section 6 of the Covenants and Restrictions in accordance with
Article rv, Section 7 of the Covenants and Restrictions; and under any other Covenants, Conditions
or Restrictions which afford Developer the right to approve or control the construction activities of
Assignee on the Greenbriar at Tuscawilla Property.
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NOW, THEREFORE, for and in consideration of$lO.OO, each to the other in hand paid~d
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acknowledged, Developer and Assignee agree as follows: :- ~
1. The foregoing recitals are true and correct and are expressly incorporated
herein by this reference.
2. In accordance with the terms and provisions of Article IV, Section 7 of the
Declaration, Developer expressly assigns to Assignee its rights, powers, obligations and privileges
and to the extent that they are transferable by Developer only under Article III, Section 6 of the
Declaration with respect to any building, wall, sign, flag, permant, fence, or other structure or
improvement of any nature to be constructed or intended to be constructed, erected, placed or altered
on Or within any portion of the Golf Course Property located adjacent to or within seventy-five feet
(75') of the boundary of any portion of the Greenbriar at Tuscawilla Property adjoining or adjacent
to the Golf Course Property. Developer is assigning its rights. powers and obligations and privileges
herein "as is" "where is'" and "with all faults" as of the date of the assignment without any
representation or warranty of any type including as to the title to the rights being assigned. Assignee
is obtaining this assignment based on its own investigations and not upon reliance upon any
information provided by Assignor or Assignor's agent.
3. Developer expressly assigns to Assignee its rights, powers, obligations and
privileges, to the ext~nt they are assignable by Developer, to control, regulate or release the setback
requirement imposed upon the Greenbriar at TuscawilIa Property pursuant to Article IX, Section
32(a)(3 ).
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4. Developer expressly assigns to Assignee all of its rights, powers, privileg~
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and obligations to the extent assignable to approve or control the construction activities of Assign~
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on the Greenbriar at TuscawilIa Property pursuant to any Covenant, Condition, or Restriction whicW
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5. In accordance with Article IV, Section 7 of the Covenants and Restrictions,
Developer expressly assigns to Assignee all of its rights, powers, obligations and privileges to the
extent they are assignable, to control, regulate or approve the construction of improvements on the
Greenbriar at Tuscawilla Property pUrsuant to Article III, Section 6 or any other Article or Section
of the Covenants and Restrictions.
6. Developer assigns all of its rights, obligations and privileges described herein
"as is" "where is" and "with all faults" as of the date of this Assignment without any representations
or warranty of any type including as to the title to or warranty of any type including as to the title
to the rights being assigned Assignee in obtaining the assignment based on its ovvn investigations
and not upon reliance upon any infonnation provided by Assignor or Assignor's Agent.
7, Developer reserves all other rights, obligations and privileges under and
pursuant to the Declaration, except as expressly assigned to Assignee hereunder, including without
limitation the right to assign the rights and obligations of Assignor to any Successor developer of
property other than the GreenbriRf at Tuscawilla Property by written instrument as contemplated
under Article IV, Section 7 of the Declaration.
8. This Assignment shall become effective upon recordation in the Public
Records of Seminol'e County, Florida.
9. Assignee hereby accepts the foregoing partial assignment and hereby asswnes
all duties and obligations of Assignor with respect to the partial assignment set forth herein arising
2$ldrhortlgreen\1l!lJign
April 21, 1995
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as of or after the date hereof or as a result of or based upon facts, circumstances or events occurring
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during Assignee's O'\l;nership, management or operation of the Greenbriar at,TuscawiIla PropertJ2
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with respect to the rights assigned hereby. Assignee hereby holds, harmless and indemnifie6
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Assignor for all losses, liabilities, damages, expenses, court costs and attorneys' fees incurred by~
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Assignor arising as of or after the date hereof or as a result of or based upon facts, circumstances oi:.,
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events occurring during Assignee's oVv11ership, management 'or operation of the Greenbriar at
Tuscawilla Property 'with respect to the rights assigned hereby from (a) this assignment; (b) any
responsibilities, obligations or duties of Assignor as Developer or otherwise under the Declaration
with regard to the Greenbriar at Tuscawilla Property; (c) Assignee's exercise of the rights assigned
to it by Assignor hereunder. It is hereby agreed and understood that by this Assigrunent Assignor
does not incur any liability or responsibility of any nature whatsoever to Assignee or to any other
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IN VIlTNESS WHEREOF. the parties have executed this Assignment as of the date and year
first \\on tten above.
DEVELOPER:
Signed, sealed and delivered
in the presence of:
WINTER SPRINGS DEVELOPMENT JOINT
VENTURE, a Florida general partnership
By: Home Capital Corporation, a California
corporation d/b/a Home Capital Development
Group, General Partner
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By: Humbolt Financial Services Corp"
General Partner
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. SEP 05 '97 11:29AM KRUP~SN~ACHER & ASSC
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STATE OF FLORIDA
COUNTY OF SEMINOLE
d ed before me this _ day of , 1995,
of Home Capital Corporation, a California
SPRINGS DEVELOPMENT JOINT VENTURE, a
partnership. He/she is personally known to me or has
as identification, and who did take an oath,
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By:
Notary Public, State of Florida
Commission No.:
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COUNTY OF 3!!lvlllJg.Id ~rfIU bJE6C> , ? ~
Theforegoing instrument W~knOWledged before me this ~ day of IY\".I( . . 1995,0:>
by ~ L..8J.j "1S I-a DG'27T, as ~ ~ S') b? AlT of Home Capital Corporation, a California
corporation, as general partner of \VINTER SPRINGS DEVELOPMENT JOINT VENTURE, a
Florida general partnership, on behalf ofrhe partnership. He/she is personally knO\\'I1 to me or has
produced ~&J~ es~ ~~Lf }L~D ~_as identification and who did take an oath.
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o ,.' " D. L. Van KoeV9r1ng~
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" TAAY PU8LIC. CALlFOANl.&.1oIIO
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Com"" Ellpjrea Ju~ 23. , ~1 ..
STATE OF ~Oyl~ C-ItLi J::::o eAJ /J:)
COUNTY OF SE:l1rr<;OLfi--S4N DI f:::.~ ()
.L 1;fegOing instrumen~aCknOWledged before me this l~.y of~. 1995,
by :/...AM 1 ('rb'~ 77 ,as ~.s: l D~AJ-r- of Hwnbolt Financial Services Corp., as
general partner of WINTER SPRINGS DEVELOPMENT JOrNT VENTURE, a Florida general
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partnership, on behalf of the partnership. He/she is personally known to me or has produced _
as identification and who did take an oath.
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STATE OF FLORlDA
COUNTY OF SEMINOLE
by ,as
general partner of WINTER SP
partnership, on behalf of the pa ner
The foregoing instl.Ument was acknowl ged before me this _ day of , 1995,
of Humbolt Financial Services Corp., as
NT JOINT VENTURE, a Florida general
Ish 's ersonally knO'Wl1 to me or has produced_
a ide ifj ation, and who did take an oath.
(SEAL)
By:
Notary Public, State of Florida
Commission No.:
STATE OF FLORIDA
COUNTY OF ORANGE
~e.fo~trument was aC,1<no'$.dgedJ>efore me this ~y of ~ . 1995,
by ,d. ,as II,(;.'<!. O'Slqeat-'of n.R. HORTON, INC., a Delaware
co.rporation. He/she is personally known to me or h::l<; pr~~d
'":: as ~RtiBbatiM, and who did take .m oath.
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i \D?-.\7T \ DAWN 11', DEmEIt
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April 21, 1995
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Lots 21, 22 and 44, Easterly 16.0 feet of Lot 45, Lots 54, 62,
63, 64 and TRACT F, GREENBRr~R SU8DIVISION PHASE IJ according to
the ~lat thereof recorded in Plet Book 33, ~ages 1 through 3,
inclusive, Public Records of Seminole County, Florida.
PARCEL B:
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Lots 87 through 206, incluSive. GREEN8~IAR SUDIVISION PHASE 2,
accordin9 to the plat thereof recorded in Plat Book 40, pages 42
through 44, inclusive, Public Records of Seminole County,
Florida.
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CITY OF WINTER SPRINGS, FLORIDA
1125 EAST STATE ROAD 434
WINTER SP~INGS, ~LO~IDA 3Z?OS.m9
, '. Te1epi'lone (0107) 3(7.1600
Suilding
Department
1'-1r. Richard Ladd
D.R. Horton, Inc.
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6250 HazeltiDe National Drive, Suite 104
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Orlando, Florida 32822
August 15, 1997
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Dear Richard:
In response to the request dated August 8. 1997 from D.R. Horton to reduce the set back
along We golf course on lot 103 Greeobriar Pbase II from 40' to 30', Section 20-359 of
the City Code of Ordinances requires aDY request for an alteratio.o, revision or deletion to
the final development plan to be submitted to the City for review by the planning and
zooiDg board, They would dete:mine if the change is consistent v.ith the approved fica!
development plan or not.
If tbe change is detenniDed to be consistent, the Planning and ZolliDg board wO"IJld tben
approve the change as requested or 'With modification.
If the change is determined not to be subswtiaJly" consistent 'with the approved final
development plan., the boud would forward me request to the City Commission wit1t their
recommendation and the commission would make the final decision. .
If you \>vish to pursue this I would make the follov.iog recommendations:
. Request the setback.reduction for all of the lots in Phase II at least.
· Obtain the blessing of the people from Phase I tllat are on the HOIDeowIler's
Assoc.iation board prior to proceeding.
The oe)Ct plaMing and ~cing board meeting.i~ September 3, 1997 at 7:00 P.M.
For inform;lcioo. regarding the specifics of the procedure. contact Don LeBlanc our Land
Development COordiostor.
~R~SP, !9~, '.'?] , . ).1: 31AM KRUPPENBACHER _& B~SC:.o~ ~6<le
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CITY OF WINTER SPRINGS, FLOAICA
1$;3e liP. 17/172/02
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 3Z7C!l.Z799
Te'ephonl/ {"07) 327.1800
Building
Depar1menl
If I can be of further assistance, please fee! free to contact mc.
5 iDcere 1)',
D.W. Houck,
Building Official
D'WWalU
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Page 2
SEP 05 '97 11:24RM KRUPPENBRCHER & RSSC
P,2/17
HIGLEY & BARFIELD, P.A.
Post Office Box 151629
Altamontc Springs, Florida 327 J 5- 1 629
324 Newbulj'port Avenue
AltamOnte Springs. FL 32701
Telephone: (407) 834-4848
Facsimile: (407) 834-8660
David A. Higley
William E. Barfield
August 29, 1997
VIA FACSIMILE 246-7767
, Robert Guthrie, Esquire
105 E. Robinson Street, Suite 20 I
Orlando, FL 32801
Re: D,R. Horton/City of Winter Springs
Dear Mr. Guthrie:
As 1 informed you in our phone conversation, D.R. Horton is the developer of Phase II,
Greenbriar, An issue has arisen between the City of Winter Springs and D.R. Horton concerning
the rear set back on a golf course lot described as Lot 103, Greenbriar, Phase II. The City has denied
D,R. Horton's building permit for the construction of a porch on Lot 103 in the area between 40 and
30 feet from the rear lot line. Mr. Houck maintains that it is a deviation from the final development
plan submitted to the City for approval which requires submission to the Planning and Zoning
Board. Mr. Houck suggests that all of the rear set backs be reduced for all of the lots in Phase II and
that D.R. Horton is required to obtain the consent of all of the people from Phase I prior to
submission to the Board. I am enclosing a copy of Mr. Houck's letter dated August 15, 1997
explaining his position. I contacted Don LeBlanc, the Land Development Coordinator, as suggested
by Mr. Houck in his letter. Mr. LeBlanc indicated that he had not taken any action with regard to
D.R. Horton's request and was unwilling to comment on Mr. Houck's position. He suggested that
I contact Frank Kruppenbacher, the City Attorney.
I attempted to explain D.R. H0l10n's position to Mr. LeBlanc however it feel on deaf earS.
Quite simply, D.R. Horton's position is that the issue of the reduction of the set back is not one
which the City should be concerned with. Specifically, according to Mr. LeBlanc, the rear set back
for Greenbriar Phase II is listed in the City records as six (6) feet. The only other limitation on rear
set backs is contained within the Covenants, Conditions and Restrictions for Greenbriar.
Specifically, Section 32 (a)(3) of Article 9 of the Covenants, Conditions and Restriction of
Greenbriar recorded at O.R. Book 1764, Page 1638, of the Public Records of Seminole County
provides that a building set back requirement along the perimeter of the subdivision shall be as
follows;
(3) Forty feet along the golf course. However, the ARB in conjunction with the ARB
of Winter Springs Development Corp. shall, at its discretion, approve encroachments from a forty
foot set back to a thirty foot set back along the golf course, These Covenants, Conditions and
SEP 05 '97 11:25RM KRUPPENBRCHER & RSSC
P.3/17
Robert Guthrie, Esquire
August 29, 1997
Page 2
Restrictions \\'ere submitted to the City for approval along with its development plans.
D.R. Horton has obtained a Partial Assigrunent of the rights of Winter Springs Development
Corporation and particularly their ARB as it relates to the regulation of the golf course lots. I am
enclosing a copy of the Partial Assignment for your review. Similarly, D,R. Horton controls the
Architectural Review Board for Greenbriar. Thus, D.R, Horton is within its rights to modify on a
case by case basis, the set backs for golf course lots to thirty (30) feet.
D.R. Horton's request does not violate any applicable City Ordinance regulating set backs
for the lots and is consistent with the plan' of the development as outlined in the Covenants,
Conditions and Restrictions. Thus, there is no need for submission of the request to the Planning
and Zoning Commission. Furthermore, there is no need to obtain the approval of other lot owners.
D.R. Horton's reduction of the set back is purely a private matter. IfD.R, Horton is violating any
of the provisions of the Covenants, Conditions and Restrictions. then the homeowners are the parties
responsible for enforcing the Covenants, not the City,
Mr. Guthrie, I would appreciate you reviewing this matter at your earliest possible
,convenience and notifying me of the City's response. J hope this matter can be resolved amicably.
...--
Sincerely,
k~
William E. Barfiel
WEB/pj s
Enclosures
cc: Mr. David Auld
(2) The concept, land uses, densities and phas-
ing of the approved preliminary develop-
ment plan;
(3) Any other pertinent ordinances or regula-
tions.
"
(b) If the planning and zoning board determines
that the proposal is not consistent with such provi-
sions, a public hearing on the request shall be
held by the city commission. Upon receipt of
recommendations from the staff and the planning
and zoning board, the city commission shall hold
a public hearing on the request and either ap-
prove, approve with modifications, or deny the
proposal stating the reasons for such action.
(c) To protect the public interest, the planning
and zoning board may, for just cause, hold a pub-
lic hearing in the process of determining that the
alterations, revisions or modifications are consis-
tent in making a recommendation to the city
cori:1mission.
(Ord. No. 367, ~ 1, Art. XIV, Part A, ~ 44.85.8,
5-11-87)
\
'_/
Sec. 20-359. Alterations to the final develop-
ment plan.
(a) Any request for an alteration, revision, ad-
dition or deletion to the final development plan
shall be submitted to the city clerk for review by
the planning and zoning board. The board shall
review the request and make finding of fact as to
whether the proposal constitutes a change in the
preliminary development plan also. If so, the re-
quest must first be processed according to section
20-358, If not, the board shall review the proposal
and the staff recommendations to determine whether
or not the proposed change is substantially con-
sistent with the approved final development plan.
If the proposal is determined to be consistent, the
planning and zoning board may approve or ap-
prove with modifications the proposed change.
(b) If the proposal is determined not to be sub-
stantially consistent with the approved final de-
velopment plan, the board shall forward to the
city commission a recommendation for approval,
approval with modifications, or denial of the re-
quest, stating their reasons for such action. The' , '
commission shall then review the proposal and,
ZONING
9 20-360
the recommendations of the staff and the plan-
ning and zoning board and either approve, ap-
prove with modifications, or deny the request stat-
ing their reasons for such action.
(Ord. No. 367, ~ 1, Art. XIV, Part A, ~ 44.85.9,
5-11-87)
Sec. 20-360. Control of development following
approval after construction com.
pleted.
(a) An approved planned unit development shall
be considered to be a separate zoning district in
which the final development plan, as approved,
established the restrictions, regulations, and dis-
trict description according to which development
shall occur. Upon' approval of the final develop-
ment plan, the use of the land and the construc-
tion, modifica~ion or alteration of any buildings
or structures within the planned unit development
shall be in a~cordance with the approved final
development plan, rather than with other provi-
sions of this chapter. ,'.
(b) After completion of construction of the area
covered by a final development plan, no changes
may be made except under the procedures pro-
vided below:
(1) If any minor extensions, alterations or modi-
fications of existing. buildings, structures
or utilities are consistent with the purposes
and intent of the final development plan,
they may be authorized by the building
code.
(2) Any uses not authorized by the final devel-
.opment plan may be added to, modified or
, deleted fron1 the final development plan in
accordance" with the provisions of section
20-359.
(3) A building or structure. that is totally or
substantially destroyed may be reconstructed
only in compliance with the final develop-
ment plan unless an amendment to the plan
is approved in accordance with the provi-
sions of this article.
(Ord. No: 367, ~ 1, Art. XIV, Part A, ~ 44.85.10,
5-11-87)
1231