HomeMy WebLinkAbout2010 01 25 Regular 604.1 Referr to the LPA (Local Planning Agency)Draft Ordinance Regarding Amendment to the City's Tree Code COMMISSION AGENDA
Consent
ITEM 604.1 Informational
Public Hearing
Regular x
January 25, 2010 MG /DEPT.
Regular Meeting Authorization
REQUEST: The City Attorney requests that the City Commission consider referring to the LPA for
recommendation a draft ordinance regarding an amendment to the City's tree code to address energy
devices based on renewable resources.
EXECUTIVE SUMMARY: Recently, a resident made the City Commission and staff aware that he
recently installed solar collectors to provide energy to his home (See Agenda Item 604.2). In light of this
information, the City has had to consider the impact the installing of solar collectors may have on
provisions of the City's tree code. Florida law preempts municipal ordinances that prohibit or have the
effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices based on
renewable resources. In light of the above, the City Commission should consider a legislative
amendment to the City's tree code.
CONSIDERATIONS:
1. Section 163.04 prohibits governing bodies from adopting ordinances that prohibit or have the
effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices
based on renewable resources.
2. The current tree code does not expressly address renewable energy devices, and the recent
situation with a resident has brought this issue to the forefront. Given the current climate of
green policies and initiatives, the impacts of this statute on municipal ordinances (including the
tree code) may become more prevalent in coming, years. The City Commission may wish to
proactively address this issue to facilitate the intent of the statute, which encourages renewable
energy devices.
3. The draft ordinance as written expressly provides criteria and review standards that address
section 163.04, Florida Statutes.
4. The legislative intent of the statute is to prohibit driving the costs of owning and operating
commercial or residential property beyond the capacity of private owners to maintain. It is the
City Attorney's opinion that section 163.04, Florida Statutes is not intended to strictly prohibit
the application of all municipal ordinances. However, given the current statutory language and
GENERAL MEETING JANUARY 25. 2010
REGULAR AGENDA 11 EM "604.1"
PAGE 2 OF 2
the lack of legal authority interpreting the same, it is difficult to discern when the statute would
preempt a municipal ordinance. The draft ordinance addresses this difficulty by authorizing trees
to be removed when trees prohibit or have the effect of prohibiting the installation of solar
collectors clotheslines, or other energy devices based on renewable resources and by waiving the
requirements for tree replacement and tree bank contributions.
FISCAL IMPACT:
Given section 163.04, Florida Statutes, the draft ordinance may have a negative impact on future tree
bank contributions.
COMMUNICATION EFFORTS:
1. The ordinance will be subject to two advertised public hearings before the LPA and the City
Commission.
2. Related agenda items will be posted at City Hall and on the City's website.
RECOMMENDATIONS:
The City Attorney recommends that the draft ordinance be referred to the LPA for review and
recommendation so that this issue may be further analyzed and addressed legislatively.
ATTACHMENTS:
Draft Ordinance
Text of section 163.04, Florida Statutes
ORDINANCE NO. 2010-04
AN ORDINANCE OF THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA, AMENDING THE
CRITERIA AND REVIEW STANDARDS FOR A TREE
REMOVAL PERMIT IN FURTHERANCE OF SECTION
163.04, FLORIDA STATUTES, RELATING TO ENERGY
DEVICES BASED ON RENEWABLE RESOURCES;
AMENDING SPECIFICATIONS FOR TREE REPLACEMENT
WAIVERS; PROVIDING FOR THE REPEAL OF PRIOR
INCONSISTENT ORDINANCES AND RESOLUTIONS;
INCORPORATION INTO THE CODE; SEVERABILITY; AND
AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority, under 2(b), Art. VIII of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, Section 163.04 encourages the development and use of renewable resources;
and;
WHEREAS, Section 163.04 prohibits governing bodies from adopting regulations that
prohibit or have the effect of prohibiting the installation of certain energy devices based on
renewable resources;
WHEREAS, the City Commission finds that there are environmental and economic benefits
related to encouraging the development and use of renewable resources; and
WHEREAS, the City Commission finds that its tree protection guidelines should be
amended to contain provisions encouraging the development and use of certain energy devices based
on renewable resources;
WHEREAS, on February 3, 2010, the Planning Zoning Board (Land Planning Agency)
conducted a public hearing on this ordinance and recommended approval to the City Commission;
and
WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this
ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter
Springs.
City of Winter Springs
Ordinance No. 2010 -04
Page 1 of 6
NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by
reference as legislative findings of the City Commission of Winter Springs.
Section 2. Code Amendment. The City of Winter Springs City Code, Sections 5 -4 and
5 -9 are hereby amended as follows (underlined type indicates additions and strikcoat type indicates
deletions, while asterisks indicate unchanged text. It is intended that omitted text, denoted by
asterisks, shall remain unchanged from the language existing prior to adoption of this Ordinance.
CHAPTER 5. TREE PROTECTION AND PRESERVATION
Sec. 5 -4. Permit required for tree removal and land clearing; separate violations; criteria;
contractor permit required.
(a) Permit required. No person shall engage in tree removal or engage in land clearing located within
the city, without first obtaining a permit as provided in this chapter. If a property owner has retained
a contractor to perform the land clearing or tree removal, the contractor shall be responsible for
obtaining the permit required by this chapter prior to the land clearing or tree removal. It shall be a
separate violation of this chapter for each tree removed and each day a person is engaged in land
clearing without a permit.
(b) Criteria. Upon receipt of a completed application and verification on -site by the city forester, a
permit may be issued for tree removal under any one of the following conditions:
(1) Trees located on building and construction sites as shown on city approved plans,
provided said trees are replaced elsewhere on the property in accordance with section 5 -9 of
this chapter.
(2) Trees located within ten (10) feet of a structure or other improvement, provided said trees
are replaced elsewhere on the property in accordance with section 5 -9 of this chapter.
(3) Trees severely diseased, severely injured or dead.
(4) Trees that interfere with the construction or repair of public infrastructure and facilities.
(5) Undesirable trees, per Appendix A.
(6) Trees removed by the city or other governmental agency and which are located within a
City of Winter Springs
Ordinance No. 2010 -04
Page 2 of 6
public road, drainage rights -of -way, or permanent utilities and drainage easements.
(7) Trees that have been approved by the city forester and which shall be replaced elsewhere
on the property.
j8) Trees that prohibit or have the effect of prohibiting the installation or operation of a solar
collector. clothesline. or other energy device based on a renewable resource.
(-j191All trees and plants, within a licensed tree nursery, planted for harvest shall be exempt
from the terms and provisions of this chapter only if trees are planted and growing on the
premises of the licensee and are for sale or intended for sale in its ordinary course of
business.
(c) Review standards. When making a determination on whether a tree meets one of the conditions
set forth in section 5 -4(b) and therefore, whether to approve or deny an application under this
chapter, the city shall apply one (1) or more of the following standards of review deemed relevant:
(1) Necessity to remove trees which pose a clear and obvious safety hazard to pedestrian or
vehicular traffic or threaten to cause disruption to public services or a significant obstacle to
accessing and utilizing public easements and rights -of -way.
(2) Necessity to remove trees which pose a clear and obvious safety hazard to buildings and
other improvements on a lot or parcel of land. Ordinary small cracks or uplifts in pavement,
sidewalks, and non occupied structures that are typically caused by settling and small roots
shall not be considered a safety hazard.
(3) Necessity to remove diseased trees or trees weakened by age, storm, fire or other injury
or trees with severe structural defects that pose a clear and obvious safety hazard to people,
buildings or other improvements on lot or parcel of land.
(4) Necessity to remove trees which prohibit or have the effect of prohibiting the installation
or operation of a solar collector. clothesline. or other energy device based on a renewable
resource. The applicant shall submit operating instructions or other manufacturer guidance
setting forth the amount of sunlight exposure required for proper operation of the energy
device or other such evidence of the necessity to remove trees.
(4) al The extent to which tree removal is likely to result in damage to the property of other
owners, public or private, including damage to lakes, ponds, streams, or rivers through runoff
or erosion.
(5) L6j Any proposed landscaping including plans whereby the applicant has planted or will
plant trees to replace those that are proposed to be cleared.
6) al Topography of the land and the effect of tree removal on erosion, soil retention and
the diversion or increased flow of surface water.
City of Winter Springs
Ordinance No. 2010 -04
Page 3of6
(-7-) in Good forestry practices, such as the number of healthy trees that a given parcel of
land will reasonably support and the proven techniques that sustain healthy trees.
(8)Necessity to remove trees in order to construct, approved and permitted improvements
to allow economic enjoyment of the property, including:
a. Need for access around the proposed structure for construction equipment
(maximum of ten (10) feet).
b. Need for access to the building site for construction equipment.
c. Essential grade changes.
d. Need for locating street or road rights -of -way, utilities, drainage ways, as well as
the need to provide reasonable use and property access.
(9) (10) The extent of any damage or demonstrated hardship which would result to the
applicant from a denial of the requested permit.
(-}•8)-(111 The species and size of the trees proposed for removal.
(11) (12) The following factors shall also be considered:
a. Trees forming the current canopy.
b. Preservation of the next generation of trees.
Sec. 5 -9. Tree replacement guidelines.
(a) Tree replacement. All trees that are removed or destroyed and subject to replacement by this
chapter shall be replaced by a species of tree cited in Appendix B, desirable trees or such other trees
properly approved by the city forester. Replacement shall occur prior to the issuance of acertificate
of occupancy (if approval is pending) or within thirty (30) days of removal or destruction, whichever
date is earlier, unless a greater replacement period is provided for good cause by permit.
(b) Criteria for replacement trees is as follows:
(1) Characteristics of replacement trees. The replacement tree(s) shall have at least equal
shade potential, screening properties, and /or other characteristics comparable to that of the
tree(s) requested to be removed.
City of Winter Springs
Ordinance No. 2010 -04
Page 4 of 6
(2) Size of replacement trees. Replacement tree(s) are to be made according to the tree
replacement standards set forth in Table 1 [at the end of this section]; or (2) otherwise agreed
upon by the city commission and applicant.
(3) Tree species. Relocated or replacement trees shall include only species and sizes defined
as desirable trees (Appendix B) under this chapter.
(4) Transplanting and maintenance requirements. All trees transplanted pursuant to this
chapter shall be maintained in a healthy, living condition. Any such trees which die shall be
replaced and maintained by the property owner. The city shall retain jurisdiction for one (1)
year to ensure compliance with this chapter.
(5) Waivers of replacement tree(s) specifications.
(a) General waivers. The number of required replacement trees may be waived by
the city commission, if the city commission determines that the remaining number
of trees to be preserved on site are of sufficient number and quality to substantially
comply with the purpose and intent of this chapter and a tree replacement fee is paid
to the city's "tree bank," which is hereby established. Monies collected in the tree
bank shall be used for enhancement and maintenance of trees on public lands. The
contribution to the tree bank may be waived by the city commission for individual
homeowners, on a case -by -case basis, if the homeowner can demonstrate that the
payment of the fee will cause the homeowner an undue economic hardship.
Substitute tree(s) allowed under this waiver provision must have the approval of the
city commission. The amount to be paid into the tree bank shall be set forth in Table
1 and should be based upon wholesale market value of the trees being replaced, plus
installation and maintenance costs to establish the tree.
(b) Renewable resource waivers. The tree replacement and tree bank requirements
of this section shall not apply if a permit based on sections 5- 4(b)(8) and 5- 4(c)(4)
is issued. If the permittee does not maintain and operate the permitted energy device
for at least three (3) years. the permittee must replace the removed trees or pay a tree
replacement fee to the city's tree bank as required by this section.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the
Winter Springs City Code and any section or paragraph, number or letter, and any heading may be
changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like
City of Winter Springs
Ordinance No. 2010 -04
Page 5 of 6
errors may be corrected and additions, alterations, and omissions, not affecting the construction or
meaning of this Ordinance and the City Code may be freely made.
Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this ordinance.
Section 6. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to the City
Charter.
ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular
meeting assembled on the day of 2010.
JOHN F. BUSH, Mayor
ATTEST:
ANDREA LORENZO LUACES
City Clerk
APPROVED AS TO LEGAL FORM AND SUFFICIENCY
FOR THE CITY OF WINTER SPRINGS ONLY.
ANTHONY A. GARGANESE
City Attorney
First Reading:
Second Reading:
Effective Date:
City of Winter Springs
Ordinance No. 2010 -04
Page 6 of 6
Statutes Constitution :View Statutes >2009- >Ch0163- >Section 04 Online Sunshine Page 1 of 1
Select Year: 2009 Go
The 2009 Florida Statutes
Title XI Chapter 163 View Entire
COUNTY ORGANIZATION AND INTERGOVERNMENTAL Chapter
INTERGOVERNMENTAL RELATIONS PROGRAMS
163.04 Energy devices based on renewable resources.-
(1) Notwithstanding any provision of this chapter or other provision of general or special law, the
adoption of an ordinance by a governing body, as those terms are defined in this chapter, which
prohibits or has the effect of prohibiting the installation of solar collectors, clotheslines, or other energy
devices based on renewable resources is expressly prohibited.
(2) A deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the
effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources
from being installed on buildings erected on the lots or parcels covered by the deed restriction,
covenant, declaration, or binding agreement. A property owner may not be denied permission to install
solar collectors or other energy devices by any entity granted the power or right in any deed restriction,
covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of
property with respect to residential dwellings and within the boundaries of a condominium unit. Such
entity may determine the specific location where solar collectors may be installed on the roof within an
orientation to the south or within 45° east or west of due south if such determination does not impair
the effective operation of the solar collectors.
(3) In any litigation arising under the provisions of this section, the prevailing party shall be entitled to
costs and reasonable attorney's fees.
(4) The legislative intent in enacting these provisions is to protect the public health, safety, and
welfare by encouraging the development and use of renewable resources in order to conserve and
protect the value of land, buildings, and resources by preventing the adoption of measures which will
have the ultimate effect, however unintended, of driving the costs of owning and operating commercial
or residential property beyond the capacity of private owners to maintain. This section shall not apply to
patio railings in condominiums, cooperatives, or apartments.
History. -s. 8, ch. 80 -163; s. 1, ch. 92 -89; s. 14, ch. 93 -249; s. 1, ch. 2008 -191; s. 3, ch. 2008 -227.
Copyright 1995-2010 The Florida Legislature Privacy Statement Contact Us
http: /www.leg.state.fl.us/ STATUTES /index.cfm? App _mode= Display_Statute &Search_St... 1/15/2010