§ 110-173. Abandonment of right-of-way within existing subdivisions.

(a)

The city may abandon the roads and rights-of-way dedicated in a recorded residential subdivision plat and/or convey the city's interest in such roads, rights-of-way, and, if applicable, appurtenant drainage facilities to a homeowners' association for the subdivision, if the following conditions have been meet:

(1)

The homeowners association has requested the abandonment and/or conveyance in writing for the purpose of converting the subdivision to a gated neighborhood with restricted public access.

(2)

No fewer than four-fifths of the owners of record of property located in the subdivision have consented in writing to the abandonment and/or conveyance to the homeowners' association.

(3)

The homeowners' association is both a corporation not for profit organized and in good standing under F.S. Ch. 617, and a "homeowners' association" as defined in F.S. § 720.301(7), with the power to levy and collect assessments for routine and periodic major maintenance and operation of street lighting, drainage, sidewalks, and pavement in the subdivision.

(4)

The homeowners' association has entered into and executed such agreements, covenants, warranties, and other instruments; has provided, or has provided assurance of, such funds, reserve funds, and funding sources; and has satisfied such other requirements and conditions as may be established or imposed by the city, including, but not limited to, compliance with the regulations set forth in this chapter and with respect to the ongoing operation, maintenance, and repair and the periodic reconstruction or replacement of the roads, drainage, street lighting and sidewalks in the subdivision after the abandonment by the city.

(5)

A title commitment and summary of how the city acquired the right-of-way to be abandoned and/or conveyed shall be provided by the homeowners' association. Also, a boundary survey and legal description of the rights-of-way and roads to be abandoned must be provided by the homeowners' association.

(6)

An explanation which identifies why the proposed use of the land to be abandoned and/or conveyed is of more benefit to the community under private ownership than retention of the land as public right-of-way shall be provided by the homeowners' association.

(7)

It is a condition precedent to the abandonment of rights-of-way within an existing subdivision that the provisions of this chapter shall be complied with and imposed upon the property owners and HOA of the subdivision.

(8)

It is further a condition precedent to the abandonment and/or conveyance of rights-of-way within an existing subdivision that the HOA, and the individual lot owners of the subdivision, jointly and severally, shall release, defend, indemnify, and hold the city and its elected and appointed officials, officers, contractors, consultants and employees harmless from any and all costs, expenses, suits, claims, demands, liabilities, damages, injuries, tort liability or award of damages or otherwise, including attorneys' fees and costs, in connection with, related to, or otherwise arising out of the abandonment and/or conveyance of rights-of-way, improvements or facilities within the subdivision.

(9)

A plat or replat or such other documentation as may be required by the city shall be submitted to the city combining the abandoned right-of-way into the adjacent platted lots and subsequently conveying such right-of-way to the HOA. Such plat or replat or documentation shall be submitted to the city prior to abandonment. Abandonment of right-of-way shall not be considered complete until such plat or replat or other documentation has been prepared in accordance with the provisions of this chapter, approved by the planning and zoning board and city commission, and recorded in the public records of Orange County, Florida.

(b)

Procedure. Formal application for abandonment and/or conveyance of rights-of-way and roads shall be made in the manner prescribed by the city and the required survey and supplementary material shall be processed and considered in accordance with the provisions of this chapter. The city commission shall have the final authority to approve or deny an abandonment request. Applications shall be submitted to the planning and zoning department.

Approval of a conditional abandonment and/or conveyance is valid for six months from the date of city commission approval and shall always be subject to compliance with the provisions of this section. Reapproval of an abandonment by the city commission may be applied for at any time subsequent to the date such abandonment becomes invalid. If the city commission or planning and zoning board should deem changes necessary in the reapproval of an abandonment in light of new or significant information or requirements, it shall so inform the applicant. An ordinance of abandonment and/or conveyance shall not take effect until such time as compliance with the provisions of this article have been met.

(c)

Effect. Upon conveyance of the roads and rights-of-way to the homeowners' association, the homeowners' association shall have all the city's right, title, and interest in the roads and rights-of-way, including all appurtenant drainage facilities, as were previously vested in the city. Thereafter, the homeowners' association shall hold the roads and rights-of-way in trust for the benefit of the owners of the property in the subdivision, and shall operate, maintain, repair, and, from time to time, replace and reconstruct the roads, street lighting, sidewalks, and drainage facilities as necessary to ensure their use and enjoyment by the property owners, tenants, and residents of the subdivision and their guests and invitees.

The act of the city in abandoning any such road or rights-of-way, or in renouncing or disclaiming any rights in any land delineated on any recorded map as a road, shall abrogate the easement theretofore owned, held, claimed or used by or on behalf of the public and the title of fee owners shall be freed and released therefrom, subject to rights of reversion, if any; the same will be thereby surrendered and will vest in the abutting fee owners to the extent and in the same manner as in case of termination of an easement for road purposes.

(Ord. No. 04-19, § 2(Exh. A), 6-10-04)