HomeMy WebLinkAbout2010 01 25 Regular 604.2 Edward And Nancy Riordan Request for Waiver of Arbor Permit Fee COMMISSION AGENDA
CONSENT
INFORMATIONAL
PUBLIC
ITEM 604 2
REGULAR HEARING X
January 25, 2010
M r. A /De lit.
Meeting Authorization
REQUEST:
The Community Development Department, Arbor Division, is requesting that the
City Commission consider a request of residents Edward Nancy Riordan for a
waiver of the arbor permit fee and replacement tree credits that are required by
Chapter 5 of the City's Code of Ordinances (Arbor Ordinance 2003 -22) for a tree
removal.
SYNOPSIS:
Mr. and Mrs. Riordan live at 1793 Seneca Boulevard, where they recently
installed a solar electric power recovery system. As part of the project the
homeowners completed an arbor permit application for a tree removal on the
adjoining property. Pursuant to their request, a site inspection was performed
by the City Arborist and an arbor permit was later issued for the removal. Mr.
and Mrs. Riordan are now requesting that the arbor permit fee of $25 and the
replacement requirement of three (3) tree credits be waived by the Commission in
consideration of their efforts to incorporate solar energy generating technology
into their home.
CONSIDERATIONS:
On August 25, 2009, resident Nancy Riordan completed an arbor permit
application for the removal of (1) 13" Oak Tree located on the neighbor's private property
(1795 Seneca Boulevard), which directly adjoins her residence. At the City's request, a letter of
consent for the removal was provided by the adjoining property owner.
After a visit to the site and meeting with Mr. and Mrs. Riordan, the removal was
approved by the City Arborist with three (3) replacement credits required to be replanted on their
property, the neighbor's property, or a donor site within thirty (30) days, as required by the
Arbor Ordinance (2003 -22). The option of a tree bank donation was also presented by the City
Arborist. Additionally,
Additionally, Mr. and Mrs. Riordan were reminded of an outstanding arbor permit
#200302088), where twelve (12) tree credits were unfulfilled from removals in June 2003. The
Arbor Ordinance requires that the property owner call the City for an inspection of the
replacements within thirty (30) days of tree removals. This inspection was never requested prior
to the most recent permit request on August 25, 2009.
On August 28, 2009, Mr. Riordan requested in writing to Randy Stevenson, the
Community Development Director, that the City waive the permit fee and replacement
requirements for this removal. Mr. Stevenson responded explaining the City's code
requirements, with some discussion of Florida Statute Title XI, Ch.163.04, as related to the
installation of energy devices and renewable resources.
On August 31, 2009, Arbor Ridge Tree Services, the licensed contractor hired by
Mr. and Mrs. Riordan for the requested removal, was issued an arbor permit #200901821) and
paid the permit fee of $25 as required by City Code. The permit clearly states that three (3) tree
replacement credits from the approved plant list are required to be installed within thirty (30)
days of removal as per City Code. The tree was later removed by the contractor.
Staff wishes to note that Mr. Riordan has made an additional request of the City
on January 8, 2010 to have six (6) additional trees in the front of his residence permitted for
removal with no permit fees or replacement requirements. These additional tree removals have
been requested due to the fact that Mr. Riordan feels these trees shade his solar panels from full
sun.
In summary, staff feels that Mr. and Mrs. Riordan's main concern seems to be
that, in light of the Florida Statute cited herein for renewable energy projects, the requirements of
the City's Arbor Ordinance, dealing with tree removals related to this project impose a financial
hardship that would drive the costs of owning and operating the property beyond the capacity of
private owners to maintain.
Pursuant to Section 5 -9 (5) of the City's Code of Ordinances, the City
Commission can waive the requirement for tree replacement 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 the Arbor Ordinance and a tree replacement
fee is paid to the City's tree bank. The intent and purpose of the Arbor Ordinance is detailed in
Section 5 -2 of the City's Code of Ordinances (Attachment A).
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 payment
of the fee will cause the homeowner an undue economic hardship.
Options for Resolution of the Riordan waiver request:
1. Address this issue using the current City Arbor Code. The Commission
can deny the request for a waiver. Secondly, the Commission can waive
the tree replacement requirement and require a fee to be paid to the City's
tree bank. Thirdly, the Commission can waive the fee to the tree bank if
the homeowner can demonstrate that payment of this fee will cause an
undue economic hardship. [Chapter 5, Section 5 -9 (5) of the City's Code
of Ordinances].
2. Make a determination that, in this case, Florida Statute 163.04 would
supersede the City's Arbor Ordinance and permit the waiver based on the
premise of raising the costs of owning and operating the property beyond
the capacity of the owners to maintain, and therefore prohibiting or having
the effect of prohibiting the installation of solar energy generating devices,
as detailed in FS 163.04(4).
3. Postpone the request until a proposed text amendment to the Arbor
Code (January 25, 2010, Agenda Item 604.1) is heard by the Land
Planning Agency (LPA) and acted on by the City Commission.
APPLICABLE LAW AND PUBLIC POLICY
Ordinance No. 2003 -22 City Arbor Code Chapter 5.
Sec. 5 -2. Intent and Purpose.
Sec. 5-3. Definitions.
Sec. 5 -4 Permit Required for Tree Removals
Sec. 5 -6 Permit Application
Sec. 5 -16. Waivers and Appeals.
The 2009 Florida Statutes, Title XI, County Organization and Intergovernmental
Relations, Chapter 163, Intergovernmental Programs.
163.04 Energy Devices Based on Renewable Resources
The 2009 Florida Statutes, Title XIX, Public Business, Chapter 288, Commercial
Development and Capital Improvements.
288.0415 Solar Energy; Advancement; Economic Development
Strategy
FINDINGS:
1) Typically, for a three (3) credit tree replacement the City pays around
$100, so the total cost for this permit tree removal for a retail customer
could be between $125 -250.
FISCAL IMPACT:
In addition to time and effort that has already been expended by staff and the City
Attorney's Office, granting the request for a waiver could result in a loss of $25 in arbor permit
fees and a permanent reduction in tree canopy in this area. The impact to the City's Urban Tree
Canopy is difficult to determine at this time as the future ramifications of similar waivers is
unknown.
COMMUNICATION
EFFORTS:
Staff has been in communication with Mr. and Mrs. Riordan for several months
regarding this issue including a visit to the site, on the telephone, through email and
communicating in writing.
RECOMMENDATIONS:
Staff recommends the City Commission consider all provided information and the
three (3) proposed options for the waiver request of the tree removal permit fee and replacement
requirement and take action as they deem appropriate.
ATTACHMENTS:
A. Arbor Ordinance 2003 -22 Chapter 5 (Pertinent Excerpts)
-Sec. 5 -2, 3, 4, 6, 16
B. The 2009 Florida Statutes (Pertinent Excerpts)
-Ch. 163.04, Ch. 288.0415
C. August 28, 2009 Letter from Mr. Edward Riordan, City Resident
D. October 8, 2009 Letter from Randy Stevenson, Community
Development Director
Attachment 'A'
Sec. 5 -2. Intent and purpose.
(a) Purpose. The purpose of this chapter is to establish protective regulations for trees within
the city in order to maintain and protect the city forest, to better control problems of flooding,
soil conversation, air pollution and noise, and to make the city a healthier, more attractive and
safer place in which to live.
(b) Intent. The intent of this chapter" is to encourage the ,protection.of the maximum number of
trees within the primary tree rotection zone and of large specimen trees within the secondary
tree protection zone. It is further the intent of this chapter to encourage the protection of trees
native to Central Florida and to encourage proper removal of exotic, pest trees.
To this end, it shall be unlawful to cut down, damage,, poison, or in any other manner destroy or
cause to be destroyed any treeor other vegetation as covered by the provisions of this chapter
except in accordance with the provisions set forth herein. Notwithstanding, in case of
emergencies involving natural disaster such as, but not limited to, flood, freeze or other natural
disasters, the requirements of this chapter may be temporarily waived by the city commission by
resolution.
(Ord. No. 2002 -08, 2, 4 -8 -02; Ord. No. 2003 -22, 2, 10- 13 -03)
Sec. 5 Definitions.
As used in this chapter, the following terms shall have the meanings indicated unless the context
clearly indicates otherwise:
(a) Caliper. Measurement of tree twelve (12) inches from soil level.
(b) City. The City of Winter Springs, Florida.
(c) City forest. The aggregate of all street trees and all park trees.
(d) Crown. The mass of branches, twigs and leaves at the top of a tree, with particular
reference to its shape.
(e) DBH. Diameter of trunk at breast height, (approximately four and one -half (4 1/2) feet from
the ground of a tree base).
(f) Desirable trees. Trees particularly adaptive to Central Florida identified as "desirable trees"
in Appendix B of this chapter, as may be amended by the city manager or city commission.
(g) Dripline. The vertical line running through the outermost portion of the tree crown
extending to the ground.
(h) Encroachment. The protrusion into a vehicular accessway, pedestrian -way, or required
landscape area.
(i) Heavy machinery. Mechanical land clearing, earth- moving, or earth- working equipment
with a gross weight in excess of five thousand (5,000) pounds. For purposes of this chapter, all
machinery which utilizes steel tracks for traction shall be considered to be heavy machinery,
regardless of weight.
(j) Historic tree. A tree which has been found by the city commission to be of notable historic
interest to the city based on its age, species, size, historic association or unique characteristics.
(k) Land clearing (grubbing). The disturbance or removal of vegetation using backhoes,
bulldozers, root rakes, or similar mechanical means which may kill trees or damage their roots,
branches, or trunks. Routine lawn mowing, sod replacement, planting of landscape material,
shrub pruning, and shrub removal shall not be considered land clearing and grubbing provided
no grade change occurs.
(1) Person. Any individual, firm, corporation, partnership, joint venture association, principal,
trustee, municipal corporation, political subdivision, or special district, or any agent or
representative thereof.
(m) Preferred Plant /Tree. Preferred plants shall mean the plant materials listed in Appendix B:
Desirable Trees and shall be of the size specified in the column labeled "Preferred Plant
Size /Minimum Height," which may be amended from time to time by the city manager in
writing.
(n) Primary tree protection zone. This shall mean the front, side and rear yard areas as
established and required by the Land Development Code of the city as the same may, from time
to time, be amended.
(o) Protected area. An area surrounding a protected, historic, or specimen tree within which
physical intrusion is prohibited in order to prevent damage to the tree, roots and soil around the
tree base, the dimensions of which shall be established by the city and set forth in the tree
removal permit, in according with section 5 -14.
(p) Protective barrier. Shall be a polygon of 2" x 4" wide stakes spaced a maximum of eight
(8) feet from each other at the perimeter of the tree protection zone and which extend out of the
ground at least thirty-six (36) inches, with the top four (4) inches marked by flourescent orange
paint or tape.
(q) Replacement trees. Replacement trees shall at a minimum comply with the provisions of
subsection 5 -9.
(r) Secondary tree protection zone. This shall mean all areas not included in the primary tree
protection zone. Subdivision street rights -of -way and easements are also defined as being within
the secondary tree protection zone.
(s) Silviculture. A process, following acceptable forest management principles, whereby the
crops constituting forests are tended, harvested and reproduced.
(t) Specimen tree. A tree, other than an undesirable tree, structurally unsound tree that cannot
be recovered by pruning, dead tree, or diseased tree, that has a caliper of twenty-four (24) inches
or more in diameter. Specimen trees shall not include laurel oak Quercus laurifolia sand
pine Pinus clausa or cherry laurel Prunus caroliniana
(u) Stem. The main trunk of a plant; its primary axis that develops buds and shoots instead of
roots.
(v) Transplant. The act of relocating an existing tree upon the same lot.
(w) Tree. Self supporting wood, perennial plants of species which have a trunk with a diameter
of at least four (4) inches measured at caliper and normally grow to an overall Crown height of a
minimum of fifteen (15) feet. Cabbage palm greater than fifteen (15) feet tall.
(x) Tree protection zone. Shall mean that area located around the perimeter of the tree in which
no activity such as clearing, filling, excavating, storage of materials, parking of vehicles, or any
other activity that in the opinion of the forester may damage the tree may occur. This zone is
calculated according to Appendix C to this chapter.
(y) Tree removal. Shall mean any act which will cause a tree situated on real property to die
within a period of two (2) years from the time of the act including, but not limited to, by cutting,
girdling, relocating, interfering with the water supply, applying chemicals, regrading around the
base of the tree trunk.
(z) Tree replacement assessment. Tree replacement assessment shall mean the total amount of
monetary compensation owed to the City of Winter Springs may be required by this chapter for
the replacement of trees cut, destroyed, or removed as a result of development or
redevelopment.
(aa) Tree replacement credit. The tree replacement credit shall be established by the city
commission and set forth in Appendix B: Desirable Trees.
(bb) Tree trunk. The main stem of a tree apart from limbs and roots.
(cc) Undesirable trees. All types of trees identified as "undesirable trees" in Appendix A of
this chapter as amended from time to time by the city manager in writing.
(Ord. No. 2002 -08, 2, 4 -8 -02; 2003 -22, 2, 10- 13 -03)
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 en. a a in land clearing located
within the city, without first obtaining a permit as provided in this chaster. 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 and verification on -site b the city
forester, a permit may be issued for tree removal under an one of the followin 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
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,,,
(8) All 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) 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) Any proposed landscaping including plans whereby the applicant has planted or will plant
trees to replace those that are proposed to be cleared.
(6) Topography of the land and the effect of tree removal on erosion, soil retention and the
diversion or increased flow of surface water.
(7) 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) The extent of any damage or demonstrated hardship which would result to the applicant
from a denial of the requested permit.
(10) The species and size of the trees proposed for removal.
(11) The following factors shall also be considered:
a. Trees forming the current canopy.
b. Preservation of the next generation of trees.
(d) Silviculture exemption. All trees planted specifically for silvicultural purposes shall be
exempt from the provisions of this chapter provided the property owner can provide
documentation to the city evidencing that:
(1) The property is registered as a silvicultural site with the division of forestry; and
(2) Trees of typical harvestable size and type exist on the property which are capable of being
harvested for income and that the property owner has, or intends to, generate income from the
harvested trees.
(e) Contractor license required; contractor obtaining permits. Any person or entity engaged in
the business of tree removal or pruning shall be licensed by the city on an annual basis. Licenses
may be obtained from the city by completing an application prepared by the city and paying the
required license fee. The license application shall contain at a minimum the name, address, and
telephone number of the contractor and a copy of the contractor's local business tax receipt and
proof of liability and workers' compensation insurance. It shall be unlawful for any person or
entity to engage in the business of tree removal or pruning within the City of Winter Springs
without a license required under this subsection. It shall also be unlawful for any such person or
entity to fail to obtain a permit on behalf of a property owner pursuant to section 5 -4(a) of this
chapter.
(Ord. No. 2002 -08, 2, 4 -8 -02; 2003 -22, 2, 10- 13 -03; Ord. No. 2006 -23, 4, 12- 11 -06)
Sec. 5 -6. Permit application.
(a) Filing application and payment of fees. An ap lication for removal and land clearing
shall be filed on official forms Irovided by the city's forester. The applicant shall be re uired to
pa a fee as ma be established b resolution of the cjy commission, except that no fee shall be
required for the removal of trees that are dead, diseased, suffer from severe structural defects,
pose a clear and obvious safety hazard to structures and people or removed for a public project
sponsored and paid for by the city. If the applicant is not the property owner, then the applicant
shall attach the written permission of the property owner to the application. All completed
applications shall be returned to the forester, along with the following:
(1) A tree inventory, for the portion of the site to be developed, consisting of a scaled drawing
of a scale of one (1) inch equals fifty (50) feet or less for undeveloped land or for developed
single family residential land, a sketch approximately one (1) inch equals fifty (50) feet or less
indicating:
a. Property boundaries.
b. The location of all individual trees including the tree's common or scientific name, and
caliper of trees.
c. An indication of all trees proposed for removal.
d. Within the primary tree protection zone, a plan shall designate the trees to be retained and
those proposed to be removed, relocated or replaced. Those trees proposed for removal,
relocation or replacement shall also be identified by common or botanical name.
e. Within the secondary tree protection zone, a plan shall designate the trees to be retained, and
those proposed to be removed.
f. The location of existing and proposed improvements, if any, including proposed additions to
existing buildings, existing and proposed buildings, structures, impervious surfaces (e.g. pool
decks, drives, parking areas), stormwater retention areas, utilities, and other such improvements.
g. A replacement plan indicating the means of compensating for the tree(s) to be removed
including the species and size of any replacement tree(s).
h. Location of trees preserved for replacement credit.
i. If grade changes are proposed on the site, a grading plan drawn to scale shall be provided. In
addition, a written statement shall be provided by a landscape architect or other competent
professional indicating the probability of whether the grade change will result in the death of
tree(s) intended to be preserved. Said statement shall immediately be brought to the attention of
the city forester at the time the application is filed and prominently attached to the front of the
application.
j. A protection plan describing how preserved tree(s) shall be preserved on the site and adjacent
properties during construction, tree removal, and grading.
k. An aerial photograph showing the boundaries of the subject property and adjacent properties.
(2) Valid reasons for the removal of trees.
(3) The appropriate permit fees.
(b) Time for application. Applications for a tree removal or land clearin .ermit shall be made
prior to removal or clearin•; except that in the following cases, application shall be filed when
indicated:
(1) All new subdivisions shall be required to submit an application for a tree removal or land
clearing permit, at the time of initial submittal of the subdivision plan, to the city forester so that
due consideration may be given to protection of trees during the subdivision design process.
Each application for a tree removal permit shall be subject to review under the staff development
review committee process.
(2) Any commercial, industrial, multi family or other use requiring site plan approval under the
city land development regulations shall be required to submit an application for a tree removal
and land clearing permit at the time of site plan submittal so that due consideration may be given
to the protection of trees during the site plan design process. Each application for a tree removal
permit shall be subject to review under the staff development review committee process.
(3) All new single family and duplex dwelling units shall be required to submit an application
for a tree removal and land clearing permit at the time of application for a building permit; the
tree inventory may be shown on the building permit plot plan.
(c) Exempting portion of the tree survey. Upon request, the city forester may permit an
applicant to omit certain portions of the tree inventory where compliance with the requirements
set forth herein would be unnecessarily burdensome and the exempted portions are not needed
for the city to evaluate the application.
(d) Permit fee. A nonreturnable permit fee to be established by resolution of the city
commission shall be paid for purposes of processing the application, enforcing the provisions of
this chapter, and inspecting the real property subject to the application.
(e) Posting of permit. The permit must be posted upon the property and visible from the street
to be valid.
(f) City commission approved plans, permits, and agreements. All permits issued by the city
forester under this chapter shall be required to be consistent, and not in conflict, with any plans,
permits, or development agreements approved by the city commission. All permits or portions
thereof issued by the city forester in conflict with any approval of the city commission shall be
deemed null and void and the approval of the city commission shall remain in full force and
effect.
(Ord. No. 2002 -08, 2, 4 -8 -02; 2003 -22, 2, 10- 13 -03)
Sec. 5 -16. Waivers; incentive program and appeals.
(a) Waivers. The city commission may grant a waiver to provisions of this chapter where the
applicant demonstrates that the literal inte .retation of the chapter will deny the applicant
reasonable use of the_property or where such waiver can be demonstrated to be consistent with
the purpose and intent of the chapter. The preservation of any approved tree over four (4) inches
in caliper may be considered as the basis for the granting of a waiver from the literal application
of the provisions of the city's land development regulations. If, in the determination of the city
commission, the sole basis for the request for waiver is to preserve such tree which would
otherwise have to be removed, it may direct any required waiver fee to be waived.
O pp by .retation of this chaster
A ea s. A� person adversely affected b an administrative inte
by t ty. may appeal interpretation er b _filing a _written
the c1 orester ma first that inte retation to the ci mana
noticeolappeal of said interpretation within ten 10 da s of said inte The
cib manager shall decide said a.. eal five 5 business da s. An erson adversel
by an administrative decision of the city manager under this cha. ter ma a. that
interpretation to the city commission by filing„ a written. notice of appeal of said inte retation
within thirty130) calendar days of said interpretation. Failure to file an appeal within the time
periods required by this subsection shall result in the administrative interpretation to be declared
final and shall be deemed a waiver of the person's right to further appellate review and
proceedings. The city commission shall decide said appeal within thirty (30) days of the city_'s
recut of said notice of appeal and the ci commission's decision shall be final. Except for the
mandatory time periods required for the notice of appeal, the time periods required for a decision
may be extended by mutual agreement between the city and the person filing the notice of
appeal.
(c) Incentive program. The city commission reserves the right to offer and approve incentives
for purposes of protecting and preserving mature trees and planting enhanced landscaping. Such
incentives shall have a public benefit and may include, but are not limited to, varying provisions
of the city's land development regulations (e.g. reduced parking; modified setbacks) and
providing credits to city development fees. Any incentives granted under this subsection shall be
consistent with the comprehensive plan and shall be by development agreement or other formal
approval.
(Ord. No. 2002 -08, 2, 4 -8 -02; 2003 -22, 2, 10- 13 -03)
Attachment 'B'
The 2009 Florida Statutes
Title XI Chapter 163
COUNTY ORGANIZATION AND INTERGOVERNMENTAL
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
Tots 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 ._ia.tont_ in _enacting.. iese provisions. is. to .profe t the_ licJaealth,
safety, .a. d Nelfaree_hy ncouraginge.lhe.. evel. .en an use_.Qtrenewable_resources_in
order. to conserve and protect the value of land, bui,ldings,and resources by preventing
th.e_...adaption of_ measures whit ultimate is ended, of
driving the_.costs •s *sou se
cap.a. city of._ .p[ixate__nwners...to_maintain. This section_„shall._not apply to_izatio_raiiingajn
condominiums.,__ cooperatives„or_apar ments.
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.
The 2009 Florida Statutes
Title XIX Chapter 288
PUBLIC COMMERCIAL DEVELOPMENT AND CAPITAL
BUSINESS IMPROVEMENTS
288.0415 Solar energy; advancement; economic development strategy. -The
use of solar energy is a proven, effective means of reducing air pollution, while also
creating new jobs, saving energy, lowering consumer utility bills, and stimulating
economic development. As such, this state is committed to advancing the use of solar
energy in the state. Towards this end, the state shall give priority to removing identified
barriers to and providing incentives for increased solar energy development and use. In
addition, the state shall capitalize on solar energy as an economic development strategy
for job creation, market development, international trade, and other related means of
stimulating and enhancing the economy of this state.
History. -s. 22, ch. 94 -321.
ATTACHMENT C
4 t\
Mr. Edward Riordan
1 793 Seneca Blvd
Winter Springs, FI, 32708
August 28, 2009
Hand Delivered to City Ilan
Mr. Randy Stevenson
Community Development Director
City of Winter Springs
Dear Mr. Stevenson:
At the direction of the city arborist, I am writing you to request your override of action
deemed as required by the arborist, pertaining to a permit filed for removal of a tree
adjacent to my property.
Statement of facts:
The tree in question originates on my neighbors property. although all growth
over a height of (c_D 12 feet extends into my property. Even though we would be
within our rights to cut anything within 10 feet of my home. we received a formal
letter of permission from the neighbor to remove it completely and filed for a
permit to comply with city law and to ensure the contractor hired meets all
requirements as far as licensing, bond and insurance.
The tree in question is being removed so as to expose my roof to sun at all times.
The tree cast a shadow over the front of the house in such a way that it will limit
the effectiveness of our installation of a new source of renewable energy, a grid
connected, solar voltaic cell array on the roof.
Florida State statute provides for unfettered access to the sun for the purpose of
installing energy devices based on renewable resources. It also specifically
forbids ordinances or similar binding agreements from prohibiting or limiting the
installation or use or effectiveness of solar collectors.
Florida and the federal government also provide incentives for the installation of
renewable energy projects including waivers of associated sales tax on materials
and installation, rebates, and tax credits. For these reasons the intent of the
message is clear this type of a project is to he encouraged not discouraged or
negatively impacted by the normal ordinances. association rules, covenants and
restrictions, etc.
The arborist is insisting that we pay permit fees and comply with a rule that we
replace this tree with another. In addition to this being an unreasonable request in
light of the reason for the removal. I believe that the imposition of the fee, and the
requirement to invest additional money to either replace the tree or plant one
elsewhere is a de facto restriction by ordinance to the project. This type of project
should he encouraged and not hampered due to additional cost and restrictions
imposed by the arborist or eit).
Florida statutes that are applicable include Title XI, 163.04 (exhibit attached)
In light of these facts 1 am requesting:
Waiver of the permit fee
Waiver of any requirement to plant a replacement
A prompt response since permitted installation of the solar photo voltaic cells is
planned to begin on or about Sept 8. 2009
I can be contacted at 321-303-8914 and hope you can advise me of the disposition of this
by phone initially My e-mail address is
I appreciate a prompt reply
Thank you in advance.
Sincerely.
Edward J. Riordan
*For further information feel free to search:
DSIREUSA.ORG, the database of State Incentives for Rencwables and Efficiencv.
*For more specifics. contact:
Colleen Kettles
Florida Solar Energy Research and Education Foundation (FlaSFREF)
101 Cove Lake Rd
Longwood, FL 32779
Phone 407 786-1799
Fax 407 786-1772
Emai 1
Website nun
EJR:nse
ATTACHMENT D
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS FLORIDA 32708-2799
Teic k 101; 32 (-180(..
CommunIty Development
October 8, 2009
Edward Riordan
1793 Seneca Blvd.
Winter Springs, FL 32708
RE: Status of Arbor Permit 1793 Seneca Blvd.
Dear Mr. Riordan:
Over the past several weeks we have discussed the details of an arbor permit
associated with the installation of a solar voltaic cell array on the roof of your home
located at the above referenced address. Much of this discussion has centered on the
fee for the arbor permit and the three (3) replacement credits that are a condition of the
issuance of that arbor permit.
It is my understanding that one of the trees is located on your neighbor's property and
that you submitted a formal letter of permission from your neighbor to remove this tree.
This letter states nothing about the permitting for this removal, only that you have the
neighbor's permission to remove the tree. It is unknown by this office whether or not the
neighbor was made aware of any permitting requirements for the removal of the tree.
Parts of our discussions have also included various analyses and interpretations of
Section 163.04 of the Florida Statutes (FS). In your August 28, 2009 letter to this office,
you requested a waiver of the permit fee and a waiver of any requirement to plant any
replacement credits for the tree removal. This section ielates to the installation, of
energy devices based on renewable resources. Subsection 1 of Section 163.04
contains language expressly prohibiting a governing body from adopting an ordinance
which "prohibits or has the effect of prohibiting" the installation of, among other things,
solar collectors. Finally, subsection 4 speaks to the legislative intent in enacting the
provisions, that intent being the protection of the public health, safety, and welfare by
encouraging the use of renewable resources and by 'preventing the adoption of
measures that 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."
Arbor permit number 200901821 was issued on August 31. 2009 to Arbor Ridge Tree
Services, Inc. for the removal of the aforementioned tree. The $25.00 permit fee was
paid at that time. A condition of the permit was the installation of three (3) tree credit
units from the city approved plant list. According to the City's Arborist, these credits
could be installed on your property or on another approved donor site for less than
$250.00.
The City is not prohibiting the installation of your solar voltaic cell array as an arbor
permit to take down the subject tree has been issued. I assume that a permit for the
installation itself will be forthcoming. Relative to subsection 4, it would appear that the
$250.00 replacement credit cost appears proportionately insignificant to the total cost of
the project and, therefore, would not drive the costs of owning and operating your
residential property beyond your capacity to maintain it,
Please feel free to contact me to discuss this issue in greater detail, 1 trust the City will
be receiving your permit application for the solar cell array in the near future,
Sincerely,
eRandy,Stevenson, ASLA, AICP
Community Development Director
Cc; Kevin Smith, City Manager
David Alamina, Building Official
Kim Trench, Customer Service Center Manager