§ 34-290. Requirements.

From time to time, the board of county commissioners may grant to a developer the privilege of platting and developing a residential subdivision as a "gated community" in which the subdivision infrastructure may be located on privately controlled easements or tracts, not public rights-of-way. The privilege of having a gated community runs with the land, but is subject to forfeiture for failure to comply with any of the following requirements. Upon a forfeiture of the privilege, the county may prohibit the closure of gates. Thereafter, if and when the subdivision rights-of-way are dedicated or otherwise conveyed to the county, the county shall assume responsibility for street and drainage-system maintenance.

All gated communities approved by the board of county commissioners must comply with the following:

(a)

Streets and stormwater detention/retention areas must be platted as separate tracts.

(b)

Streets and stormwater detention/retention areas must be owned and maintained by an HOA.

(c)

Access-easement rights over the platted roadway right-of-way tracts must be dedicated or otherwise granted to the owners of each lot within the subdivision and to all their successors in interest.

(d)

The developer shall construct the streets and drainage systems to county standards and shall comply with the provisions of Orange County Code sections 34-203 and 34-204 regarding letters of credit, certificates of completion and approval for maintenance as if the subdivision infrastructure were "public improvements," except that letters of credit required under sections 34-203 and 34-204 shall be payable to the board of county commissioners for the benefit of the HOA.

(e)

Entryway gates must be equipped with an audio (siren) override device to allow emergency access to the subdivision by fire/rescue, sheriff and other emergency-response personnel. The audio-override device must be submitted to the fire and rescue department for inspection, and the entrance gates may not be closed unless and until the department determines that the device is acceptable and in good working order.

(f)

The entryway gate must include a box, labeled "Orange County," with a master-keyed padlock, and the box must contain a key, a card-key, a code, a remote-control device, or some other means by which mosquito control, animal control, code enforcement, environmental protection and utility workers may gain access to the subdivision. The means of access must be approved by the mosquito control division, and if the subdivision is served by county utilities, the utilities department and the box must be installed prior to the county's issuance of the certificate of completion for the subdivision infrastructure. Any other utilities serving the subdivision must have similar access, and the names of such utilities must be on the outside of the box containing the means of access.

(g)

Prior to recording of the plat, a traffic law enforcement agreement pursuant to section 34-290(h)(15) between Orange County and the owner of the private streets within the gated community must be executed and approved by the board of county commissioners.

(h)

Simultaneous with the recording of the subdivision plat, the developer must record in the public records of Orange County, Florida, a document or documents (referred to in this article as the "declaration"). The declaration shall govern all platted lots within the subdivision, shall impose requirements and restrictions that run with the land, and shall address the responsibilities for the ongoing maintenance and repair of the subdivision infrastructure. The terms of the declaration shall be, to the county's satisfaction, legally sufficient and enforceable to accomplish or otherwise ensure, at a minimum, the following:

(1)

Require the establishment and maintenance of an HOA account for annual routine maintenance and repair of the streets, sidewalks, and drainage system, including stormwater detention/retention areas (referred to in this article as the "routine-infrastructure-maintenance account"), and impose the restrictions and requirements set forth in section 34-291 regarding that account.

(2)

Require the establishment and maintenance of an HOA account for major capital repair and replacement of the subdivision's streets (referred to in this article as the "capital-repair/streets account"), and impose the restrictions and requirements set forth in section 34-291 regarding that account.

(3)

Require the establishment and maintenance of an HOA account for major capital repair and replacement of the subdivision's stormwater retention/detention facilities (referred to in this article as the "capital-repair/drainage pond account") and impose the requirements and restrictions set forth in section 34-291 regarding that account.

(4)

Require the establishment and maintenance of an HOA account for major capital repair and replacement of other subdivision infrastructure such as sidewalks, stormwater conveyance systems, curbing, bike paths, etc., (referred to in this article as the "capital-repair/other infrastructure account") and impose the requirements and restrictions set forth in section 34-291 regarding that account.

(5)

Require the establishment and maintenance of an HOA account for storm debris clean-up and removal, such as clearing downed trees, landscape, and other storm-created debris from the subdivision's streets, sidewalks and drainage facilities, (referred to in this article as the "storm debris removal account") and impose the requirements and restrictions set forth in section 34-291 regarding that account.

(6)

Establish the point at which the developer must turn over control of the HOA. Turnover may occur no sooner than the point in time at which certificates of occupancy have been issued for seventy (70) percent of the platted lots in the project, and must occur no later than the point in time at which certificates of occupancy have been issued for ninety (90) percent of the platted lots in the project. Notwithstanding the foregoing, if a project contains individually-platted subdivisions, each with its own HOA and declaration (which may also be a part of a master association under a master declaration), different turnover dates may be established in the declaration for each separate HOA.

(7)

Establish the point at which the developer must turn over control of the subdivision infrastructure. Where a phased project contains individually-platted subdivisions which are subject to a common declaration and/or HOA, the date of transfer of control of subdivision infrastructure for each individually-platted subdivision may occur no sooner than the point in time at which certificates of occupancy have been issued for seventy (70) percent of the platted lots in the subdivision, and must occur no later than the point in time at which certificates of occupancy have been issued for ninety (90) percent of the platted lots in the subdivision.

(8)

Provide that:

a.

Until turnover of the HOA and/or transfer of control of subdivision infrastructure, all maintenance and repair of streets, sidewalks and the drainage system, including stormwater detention/retention areas, is the responsibility of the developer;

b.

Prior to turnover of the HOA and/or transfer of control of subdivision infrastructure, the developer may expend monies in the routine-infrastructure-maintenance account for such maintenance and repair, but only with the written consent of the board of directors of the HOA; and

c.

Insufficiency of monies in the routine-infrastructure-maintenance account shall not act to relieve the developer of any responsibility to maintain and repair the streets, sidewalks, and drainage system (including stormwater detention/retention areas) properly prior to turnover of the HOA and/or transfer of control of subdivision infrastructure.

(9)

Require that:

a.

No earlier than one hundred eighty (180) days before turnover of the HOA and/or transfer of control of subdivision infrastructure, the HOA must retain the services of a Florida registered engineer experienced in subdivision construction (other than the engineer of record for the subdivision as of the date of the county's approval of the subdivision infrastructure construction plans, and engineers who are principals of, employed by, or contractors of the same firm as the engineer of record) to inspect the streets, sidewalks and drainage system, including stormwater detention/retention areas in accordance with the existing approved plans, and prepare a report recommending the amount of scheduled maintenance and unscheduled repair that likely will be needed each year for the streets, sidewalks and drainage system (including stormwater detention/retention areas), in accordance with standards that may be established and revised from time to time by the County Engineer or his or her designee, which recommends the amounts of money that should be deposited each year in the routine-infrastructure-maintenance account, and determining what repairs, if any, are needed prior to turnover of the HOA;

b.

The report be signed and sealed by the engineer;

c.

The HOA pay the cost of this initial engineer's report, and the HOA may pay such cost from the routine-infrastructure-maintenance account;

d.

A copy of the initial engineer's report be provided to all owners of lots, blocks, and tracts in the subdivision and to the County Engineer within fifteen (15) days after it is completed;

e.

Any needed repairs or replacements identified by the report be completed by the developer, at the developer's sole expense, prior to either the developer's turnover of the HOA to the property owners of the subdivision or transfer of control of subdivision infrastructure to the HOA, whichever occurs first; and

f.

If turnover of the HOA and/or transfer of control of subdivision infrastructure occurs and the foregoing requirements have not been fulfilled, the rights of the HOA, any of its members, and any and all owners of land in the subdivision to enforce these requirements against the developer shall survive the turnover of the HOA, with the prevailing party to be entitled to attorneys' fees and costs.

(10)

Require that, after turnover of control of the HOA, or turnover of control of the subdivision infrastructure:

a.

The HOA obtain an inspection of the streets, sidewalks and drainage systems, including stormwater detention/retention areas, by a Florida-registered engineer experienced in subdivision construction no less frequently than once every three (3) years after the initial engineer's inspection; and

b.

Using good engineering practice, and in accordance with standards that may be established and revised from time to time by the County Engineer or his or her designee, or in accordance with such other standards as may be adopted from time to time by the HOA, or in accordance with such standards as the HOA's engineer may determine to be appropriate, the inspection determine the level of maintenance and repair (both scheduled and unscheduled) needed, the amounts of funding needed each year for the next three (3) years in the routine-infrastructure-maintenance account to pay for such maintenance and repair, and any repairs then needed;

c.

That the inspection be written in a report format; and

d.

A copy of each engineering report be provided to each owner of property in the gated community within fifteen (15) days of completion of the report; and

e.

Within one hundred eighty (180) days of receipt of each tri-annual engineering report, the HOA complete all remedial work identified and recommended by the engineer.

(11)

The developer (so long as the developer retains control of the board of directors of the HOA) and the HOA expressly indemnify and hold Orange County and its officers and employees harmless from any cost of maintenance, repair, and reconstruction of, or tort liability or award of damages related to or arising in connection with, the streets, sidewalks, drainage system (including stormwater retention/detention area), and/or any other subdivision infrastructure.

(12)

Expressly declare that property owners receive no discount in property or other taxes because of private streets or drainage system.

(13)

Require that each initial purchaser of a residential lot in a gated subdivision for the personal or family use of the purchaser receive a copy of the declaration at or prior to the time the sales contract is executed, together with the current budget for the HOA, including a schedule disclosing the then-existing amounts of the periodic assessments for each of the HOA accounts required by section 34-291 and a copy of the most recent year-end financial statement for the HOA, and if none are then existing, a good faith estimate of the HOA operating budget, along with a form to be signed by such initial purchaser acknowledging receipt of a copy of the declaration, budget, financial statement or good faith estimate, and that the original of the form acknowledging receipt of a copy of the declaration is to be attached to the sales contract as an exhibit or appendix. In addition, the declaration shall conspicuously set forth the ten (10) disclosures provided in the disclosure statement required in section 34-290(k).

(14)

Declare that upon any default by the HOA or the developer in any requirements of either this article or the declaration required under this article, the county, at its option and after due notice of its declaration of a default and a reasonable time to cure, may prohibit closure of the gates and, upon dedication or conveyance of the rights-of-way to the county, assume responsibility for maintenance, using all HOA monies on deposit in the routine-infrastructure-maintenance account and the several capital-repair accounts or, if no monies exist or if an insufficient amount exists, using such other revenues or financing methods as the county may elect, including (but not limited to) special assessments against the subdivision lots, blocks, and tracts.

(15)

Require that the HOA carry an insurance policy insuring itself from liability for damages related to or arising in connection with the streets, sidewalks, drainage system (including detention/retention areas). The minimum amount of insurance required shall be established by resolution of the board of county commissioners.

(16)

Require that enforcement of traffic laws within the gated community, as requested by the HOA, shall be by the sheriff and that all costs of enforcement incurred by the sheriff shall be paid by the HOA.

(17)

Provide a procedure for nonbinding mediation in the event of a dispute between any homeowner and the developer, or between the HOA and the developer, with respect to the repair and maintenance of the streets, sidewalks, and drainage system and/or funding for such maintenance and repair.

(18)

Provide that:

a.

The HOA, any member of the HOA, and any and all owners of land in the subdivision shall have the right jointly and severally to enforce against the developer the requirements of this article and the provisions of the declaration required hereunder, with the prevailing party being entitled to attorney's fees and costs;

b.

Any member of the HOA and any and all owners of land in the subdivision shall have the right to enforce against the HOA the requirements of this article and the provisions of the declaration required hereunder, with the prevailing party being entitled to attorneys' fees and costs; and

c.

Venue for any such enforcement action shall be in the Ninth Judicial Circuit of Florida, in Orange County.

(19)

Provide that, if and when the subdivision is annexed to a municipality, the rights and privileges inuring to the county's benefit under this article shall be deemed assigned to the municipality and shall inure automatically to the municipality's benefit.

(20)

Require that at the time of sale to the initial homebuyer, a schedule disclosing the then-existing amounts of the periodic assessments for the HOA accounts required by section 34-291. Such schedule must also state that the periodic assessments for the HOA accounts required by section 34-291 do not include assessments for either the routine maintenance of or the capital repair and replacement of HOA facilities not related to subdivision infrastructure (such as common area landscaping, entrance and exit gates, walls, swimming pools, clubhouses, parks, other recreation areas, etc.).

(21)

Provide that any transfer of subdivision infrastructure (including the property on which the subdivision infrastructure is located) to Orange County or other governmental entity is prohibited without the concurrence of the owners of two-thirds ( 2/3 ) (or such higher percentage as the declaration may provide) of the platted lots.

(i)

The declaration setting forth the gated community requirements in this article must be in form acceptable to the county and in substance consistent with and in compliance with the minimum requirements of this article. The declaration must be submitted for review by the county prior to plat recording. Nothing in this article precludes the declaration from addressing other matters so long as the substance of each part of the declaration is not inconsistent with the requirements of this article.

(j)

This article does not require the establishment of accounts for either the routine maintenance or the capital repair and replacement of private amenities not related to subdivision infrastructure, including, but not limited to common area landscaping, entrance and exit gates, walls, swimming pools, clubhouses, parks, other recreation areas, etc., but such accounts may be required by the declaration or may be established at the discretion of the HOA.

(k)

No contract for the sale and purchase of a residential lot or home in a gated subdivision shall be effective until a gated community cost disclosure statement ("disclosure statement") in substantially the following form has been provided to and executed by such purchaser:

Gated Community Cost
Disclosure Statement

If you are buying a lot or home in a private gated community in Orange County you should know these basic facts:

1.

Orange County is prohibited from paying to maintain the roads, sidewalks and drainage and may not be permitted to remove storm debris in this community because the roads, sidewalks, and drainage are private property and the general public cannot access the community.

2.

Although the cost of properly maintaining and repairing roads, sidewalks and drainage systems can be very high, only the owners of homes and lots in this community will share these expenses. Tax dollars will not be used. The members must also pay for the cost of liability insurance and traffic enforcement on the community's roads.

3.

Under Florida law, no reduction in your tax burden will result from living in this community.

4.

Members of this community, through their mandatory homeowners' association, must set aside adequate reserves to pay for storm debris removal in the event of tornado, hurricane, or other major storm event, to properly maintain, repair and replace the roads, sidewalks, and drainage system, and must have a professional engineer regularly inspect the roads, sidewalks and drainage system and report what work is necessary to maintain and/or repair them. The mandatory homeowners' association is obligated to do the necessary work reported and the members of the homeowners' association pay for the work through their assessments.

5.

The extra expenses you incur to maintain the roads, sidewalks and drainage in your community are in addition to other expenses charged by your homeowners association to pay for private recreational, security and other amenities and services the community may offer, including the community's gates.

6.

As with any assessment, the failure or inability to pay may lead to a lien being placed on your home. If a lien is placed and foreclosed, you could lose your home.

7.

The homeowners association is also required to maintain liability insurance adequate to pay claims for injuries and property damage arising on the private roadway, sidewalks, drainage ponds, and other common areas in the neighborhood.

8.

If Orange County determines that the community is not meeting its obligations, it may revoke the community's privilege to close its gates so that the roads in the community become available for public use.

9.

If the community fails to maintain its roads, sidewalks and drainage system, the county may require that the gates be removed. In the event the gates are removed, and the HOA dedicates the roads and other infrastructure to the county, all costs and expenses which Orange County incurs for such maintenance are recoverable from the community. Funds which have been set aside by the community may become the property of Orange County, and the roads in your community shall permanently become open to the public. Orange County will not maintain your recreational, security and other amenities under any circumstances.

10.

Before you sign a contract be sure that you receive written information about the costs of living in this community.

I have read and understand the disclosures provided in this disclosure statement prior to execution of a contract to purchase any lot in the [insert name of development] subdivision.

[signature of purchaser]   [signature of purchaser]

[print name of purchaser]   [print name of purchaser]

The disclosure statement shall be in conspicuous type and shall be contained in a single document which shall be provided to the purchaser separately from the contract for purchase and sale and the other documents required by section 34-290(h)(12). The disclosure type shall be conclusively deemed conspicuous if it is all uppercase letters and typed in at least twelve-point typeface. In the case of sale and purchase of multiple lots to a single purchaser in a gated subdivision, execution of a single disclosure statement is sufficient, provided that all lots are listed on the disclosure statement either by legal description or by street address.

(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 § 34-290, in its entirety and enacted new provisions to read as herein set out. Prior to amendment, § 34-290 pertained to conditions of approval and derived from Ord. No. 2000-14, § 1, adopted June 27, 2000; and Ord. No. 2002-08, § 1, adopted June 25, 2002.