§ 34-280. General.

(a)

The Orange County Comprehensive Policy Plan (CPP) and Subdivision Regulations promote interconnectivity of streets and roadways to allow for vehicular and pedestrian mobility within the county. Although Orange County recognizes that there is a market demand for subdivision communities having limited access by the public through the utilization of entryway gates, such limited access communities may interfere with interconnectivity and vehicular and pedestrian mobility. However, Orange County recognizes that "gated communities" may be appropriate in certain locations in certain limited circumstances. Some locations and/or circumstances in which gated communities may be appropriate are:

(1)

Where the parcel of land on which the subdivision is located is physically isolated or separated from other parcels of land by water bodies, wetlands, limited access highways, or other physical barriers such that interconnectivity would be impracticable to achieve;

(2)

Where the parcel of land on which the subdivision is located is surrounded by existing development such that interconnectivity would be impracticable to achieve; or

(3)

Where the subdivision is a phase of a larger subdivision where an earlier phase or phases have already been approved as gated communities, and it would be impracticable to separate the drainage of the new subdivision and/or interconnectivity in the new subdivision would be impracticable to achieve.

(b)

Gated communities will be specifically prohibited:

(1)

In areas designated in the CPP or chapter 38 of the Orange County Code as Village PD;

(2)

In areas designated in the CPP or chapter 38 of the Orange County Code for new urbanism development; and

(3)

In areas designated in the CPP or chapter 38 of the Orange County Code for transit-oriented development.

(4)

Where retained and/or detained stormwater from the private drainage system would be commingled with retained and/or detained stormwater from any public streets, other public facilities, or other private facilities not governed by the same homeowners' or master property owners' association.

(c)

The use of gates as a means of limiting access by the public necessitates that streets and drainage systems for a gated community be privately owned and maintained. However, the public's interest is served only if gated communities and the accompanying private streets and drainage systems are allowed as a privilege, not a right, of the developer and subsequent property owners, and only if the improvements within a gated community comply with the minimum standards of the subdivision regulations and are maintained in a manner consistent with the existing standards established for similar facilities maintained by Orange County for the public good. Therefore, this article acts as a contract among the developer, the HOA (both as hereinafter defined), and Orange County, by which Orange County allows a developer to create a gated community and allows the developer and the HOA to keep the subdivision as a community with gates that restrict access by the public, so long as the developer and the HOA substantially comply with the requirements of this article. Substantial compliance with the requirements of this ordinance gives the developer the contract right to create a gated community and gives the developer and the HOA the contract right to keep the subdivision as a community with gates that restrict access by the public.

(d)

This article applies to all subdivisions for which a gated community was requested by a developer, not by an existing homeowners' association, and approved by the board of county commissioners prior to platting. This article applies to gated communities requested by existing homeowners associations and approved by the board of county commissioners after the subdivision plat was recorded, but only if and to the extent required by the resolution of the board of county commissioners vacating the rights-of-way or by other instruments relating to the vacation of rights-of-way.

(e)

For the purposes of this article, "developer" is defined as (i) the person or entity that is the original declarant which records the declaration and/or plat for a gated community or (ii) the person or entity that succeeds to the rights and liabilities of the person or entity which is the original declarant, or (iii) in the absence of a written assignment of developer rights recorded in the public records of Orange County, Florida, the person or entity that materially or substantially exercises the rights and liabilities of the original declarant including, but not limited to controlling the board of directors of the HOA as hereinafter defined.

(f)

For the purposes of this article, "turnover of control of the HOA" (also referred to as "turnover") is defined as that point in time that members of the HOA (other than the developer, builders, contractors, or others who purchase property in the subdivision for the purpose of constructing improvements thereon for resale) are entitled to elect at least a majority of the board of directors of the HOA, and such election has occurred.

For the purposes of this article, "transfer of control of subdivision infrastructure" is defined as that point in time that maintenance and repair of the subdivision infrastructure as hereinafter defined becomes the responsibility of the HOA. Except as otherwise provided in this article, turnover of control of the HOA and transfer of control of subdivision infrastructure shall occur simultaneously.

(g)

For the purposes of this article, "HOA" shall mean a mandatory community association in which the owners of all lots, blocks, and tracts in the subdivision are required by the terms of the declaration to be members, as contemplated by section 720.301(7), Florida Statutes (2002), with the ability and duty to impose and collect on assessments.

(h)

For the purposes of this article, "project" shall mean all real property that is or will be subject to the declaration and will ultimately be operated by the HOA.

(i)

For the purposes of this article, "subdivision infrastructure" means those roadways, improvements, and other items which should otherwise be dedicated to the use of the public and/or the county in a typical subdivision, but which are retained for private use by the HOA or owners of lots in the gated community; however, subdivision infrastructure as used herein specifically excludes private amenities including, but not limited to entrance and exit gates, walls, swimming pools, clubhouses, parks and other recreation areas.

(Ord. No. 2002-22, § 1, 12-10-02; Ord. No. 2009-04 , § 2, 2-24-09)

Editor's note

Ord. No. 2002-22, § 1, adopted Dec. 10, 2002, repealed § 34-280 in its entirety and enacted new provisions to read as herein set out. Prior to amendment, § 34-280 pertained to similar subject matter and derived from Ord. No. 2000-14, § 1, adopted June 27, 2000.