Appeal, filed in Orange County circuit court, claims denial of due process, violations of city land development code and Florida annexation statutes.
The owner of an elite horse breeding and show jumping training facility on Tilden Road is appealing Winter Garden’s decision to annex and rezone the property next to hers in order to build residential homes.
That property is owned by Gotha-based developer SCMS LLC, which plans to build the housing development Tilden Club with 24 single-family homes, three of which will directly abut Crown Pointe Equestrian, owned by Anne Bingler. (Immediately to Bingler's west is Tilden Place with 55 homes.)
Attorney S. Brent Spain, who represents Bingler, on Friday took the first step in the appeal process, filing a notice in Orange County to request that the Ninth Judicial Circuit Court review the case, arguing that Winter Garden’s decision denied Bingler “procedural due process; departed from the essential requirements of law and was not supported by competent substantial evidence.”
“The Petitioner’s existing horse farm operations will be directly and adversely impacted by SCMS’s residential subdivision,” the filing states, “and the ongoing viability of the Petitioner’s agricultural operations will be directly jeopardized by the development, as proposed.”
City Manager Jon Williams did not immediately respond to an email request for comment. City Attorney Kurt Ardaman also did not return a request for comment.
Spain filed what’s called a petition for writ of certiorari, a request that a higher court review a decision by a lower court, or in this case, a government entity. With decisions involving local government, the circuit court functions as an appellate court.
Bingler had until Monday — 30 days from Winter Garden’s June 8 decision — to file her appeal. According to Winter Garden's code of ordinances, "any person aggrieved by the city commission's decision ... may challenge such decision by filing a petition for writ of certiorari ... in the circuit court of Orange County" within 30 days or lose the right to appeal.
The petition explains that attorneys typically have 70 days to file routine appeals. But with the proscribed tight deadline, Spain assembled a “bare bones” petition along with a motion to amend it once all of the documentation becomes available. The petition indicates that Spain is waiting on court reporter transcripts from three public hearings. In addition, the minutes from Winter Garden’s June 8 city commission meeting have not yet been posted on the city’s website.
Typically city commission meeting minutes are approved by the mayor and commissioners at the following meeting, two weeks later. The June 8 meeting minutes were not presented for approval at the June 22 city commission meeting.
Williams did not immediately respond to an emailed question about the delay.
Still, there’s plenty of meat on these “bare bones.” The petition argues that Bingler was denied due process because the June 8 hearing “preclud[ed] the cross-examination of any witnesses regarding the proposed annexation of SCMS’s property, including the City’s land use planner and consultant, and allow[ed] the City Attorney to act in a dual-role during the hearing.”
As reported by VoxPopuli, both City Attorney Kurt Ardaman and Assistant City Attorney Dan Langley appeared to act as both counsel to the city and advocate for SCMS. Langley testified as an expert witness for SCMS.
The petition also states that the city “departed from the essential requirements of law in annexing … SCMS’s property,” specifically violating Chapter 171 of Florida Statutes by creating an enclave of Bingler’s property — land belonging to one jurisdiction surrounded by another jurisdiction.
The city disputed that the annexation created an enclave during the May 25 reading of the annexation and rezoning ordinances, pointing to Orange County’s approval of the plan.
“If they have an issue, if they think we’re creating an enclave, they would oppose the annexation, and they have on different projects,” Planning Director Kelly Carson told the commission at that time. “We’ve analyzed it and we don’t think we’ve created an enclave, but they’re the ones who’re going to tell us whether they’re going to oppose it based on their criteria and they have not opposed it.”
The petition also argues that the proposed rezoning “violates the requirements of the City’s Land Development Code.”
Additional court documents, filed with the petition, maintain the proposed rezoning for the Tilden Club subdivision would negatively impact Bingler’s use of her horse breeding and training facility, detailing that "as a direct result of the City’s approval of the Tilden Place subdivision” she’s been unable to use a sizable portion of her property and that multiple injuries to horses and people, including Bingler, have occurred.
Carson had argued at the June 8 meeting, that building Tilden Club would not impact the equestrian training facility, telling the commission, “Based on our analysis of three big lots, single family, against the adjacent property, we did not feel that that rose to the level of interfering with the adjacent property owner’s reasonable expectation of use and enjoyment.”
Included in the court papers is a document that Spain singled out for particular attention during the hearings. He said it demonstrated the level of analysis that went into the Tilden Club project: side-by-side staff reports in which the text for the 2023 Tilden Club report was a "cut and paste" from the 2019 Tilden Place report: “The proposed PUD [planned urban development] will not substantially devalue or prevent reasonable use and enjoyment of the adjacent properties.”
Documentation of incidents since Tilden Place was built, contained in the appendix to the petition, undercuts the idea, Spain notes, that the housing development had minimal impact on Bingler's training facility.
There are photos of a horse with a severe laceration over its eye, which it got running blindly into the side of a barn after being spooked by noise coming from homes in Tilden Place. There’s a photo of the $100,000 equine exerciser that Bingler’s horses cannot use unsupervised, as intended, for fear the horses will get frightened and injure themselves while hooked up to it. And there’s a description of Bingler, who got a concussion when her horse, scared by the sudden noise of a ball hitting a PVC fence, threw her to the ground.
Lastly, the petition argues that the city commission voted to approve the annexation and rezone without evidence to support their decision.
“The record is devoid of any competent substantial evidence establishing that the annexation and rezoning of SCMS’s property complies with all of the requirements prescribed for annexations in Chapter 171, Florida Statutes, and all of the requirements for rezonings prescribed in the City’s Land Development Code."
According to additional court documents, Spain presented maps, traffic data, site plans, photographs, videos and citizen testimony, but Bingler's case was dismissed as merely "legal argument" and "not competent substantial evidence’"while the staff report was given more weight.
“[It was] suggested at the May 25 hearing that the Staff Report, in and of itself, constitutes competent substantial evidence,” additional court documents state. “It is well settled that the mere presence of materials, such as a professional staff recommendation, in the record is not sufficient to be competent substantial evidence – rather, such materials ‘must be or contain relevant valid evidence which supports the Commission’s decision.’”