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HomeMy WebLinkAbout2002 03 11 Public Hearings B First Reading - Ordinance 2002-09 Removal of Dead, Damaged, or Diseased Trees COMMISSION AGENDA ITEM B Consent Informational Public Hearing X Regular March 11. 2002 Meeting )IV- Mgr. / Att. / Dept. REQUEST: The Community Development Department and the City Attorney present to the City Commission for a first reading Ordinance No. 2002-09 amending Chapter 13 of the City Code to require the removal of dead, damaged or diseased trees which constitute a hazard to life and property, PURPOSE: The City Commission is considering amending Chapter 5 ofthe City Code. The proposed ordinance, entitled Tree Protection Ordinance, does not provide for a mechanism requiring the removal of dead, damaged, or diseased trees. The perpetuation of such trees would constitute a nuisance as they are hazardous to the health, welfare, safety and property of the Citizens of the City of Winter Springs. Staff felt it would be appropriate to require the removal of these types of trees, and for penalties where the tree is not so removed, under Chapter 13 of the City Code. APPLICABLE LAW AND PUBLIC POLICY: Section 2(b), Article VIII, of the State Constitution, CONSIDERA TIONS: The current Arbor Ordinance provides for the required removal of dead, damaged or diseased trees. Page 1 of 2, . The new proposed Ordinance, amending Chapter 5, is designed for the protection of trees and does not touch upon required removal. The perpetuation of dead, damaged, or diseased trees cause a danger to the safety and welfare of both the citizens of Winter Springs, and to their property. This Ordinance will clearly provide that the maintenance of such a tree is unlawful and that such constitutes a nuisance. The Code Enforcement Department then will have a clear enforcement mechanism to use to abate such a nuisance under Chapter 13, Additionally, this Ordinance also provided an opportunity to fine tune Chapter 13, by providing for a definitions section, adding a procedure for appeals before the City Commission. STAFF RECOMMENDATION: The Community Development Director and City Attorney recommend the City Commission approve this Ordinance for a second reading and public hearing. ATTACHMENT: Ordinance No.: 2002-09 COMMISSION ACTION: F:\Lawyer\jeflb\City of Winter SpringslAgenda Sheets\Tree - Dead Tree,wpd Page 2 of 2 ORDINANCE NO. 2002-09 AN ORDINANCE OF THE CITY COMMISSION OF, THE CITY OF WINTER SPRINGS, FLORIDA AMENDING THE CITY OF WINTER SPRINGS CODE OF ORDINANCES, CHAPTER 13, ENTITLED NUISANCES; PROVIDING FOR DEFINITIONS; PROVIDING FOR THE REQUIRED REMOVAL OF DEAD, DAMAGED, OR DISEASED TREES WHICH CONSTITUTE A HAZARD TO LIFE AND PROPERTY OF THE CITIZENS OF WINTER SPRINGS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCORPORA TION INTO THE CODE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR 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, the City of Winter Springs adopted Ordinance No. 711 on March 22, 1999 entitled Arbor, codified as Chapter 5 of the City Code of Ordinances, providing for among other things that property owners remove dead, damaged or diseased trees which constitute a hazard to life and property; and WHEREAS, the City of Winter Springs has repealed Chapter 5 in its entirety and replaced it with a new Chapter 5, entitled Tree Protection Ordinance, which does not provide for the removal of dead, damaged or diseased trees which constitute a hazard to life and property; and WHEREAS, the City of Winter Springs finds that dead, severely damaged or diseased trees constitute a hazard to the health, welfare, safety and property ofthe citizens of and visitors to the City of Winter Springs. Such a determination, in accordance with this Ordinance and applicable sections of the City Code, shall constitute a nuisance which shall be abated; 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. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: City of Winter Springs Ordinance No, 2002-09 Page I of 8 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by the reference as legislative findings of the City Commission of Winter Springs. Section 2. The City of Winter Springs Code Chapter13 entitled Nuisances is hereby amended as follows: (underlined type indicates additions and stIikeout type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 13. It is intended that the text in Chapter 13 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance) CHAPTER 13 - NUISANCES ARTICLE I: IN GENERAL * * * Sec. 13-1. General prohibition. Nothing may be done on any lot which may become an annoyance or nuisance to the neighborhood. No refuse pile" or unsightly objects. or dead. damaged or diseased trees. that may pose a health. welfare and safety threat in the discretion of the city forester or code enforcement manager. shall be allowed to be placed or suffered to remain thereon. In the event the owner shall fail or refuse to keep premises free of refuse piles" or other unsightly objects or growths. or dead. damaged or diseased trees, then the city. upon reasonable notice to the land owner. commission may enter upon such land and remove the same, or contract with a third party for the removal of the same. at the expense of the owner and such entry shall not be deemed a trespass. Sec. 13-1.5 Definitions. For purposes of this Ordinance. the following terms. phrases. words and their derivations shall have the meanings given. Where not inconsistent with the context. words used in the present tense include the future tense. words in the plural number include the singular number. and words in the singular number include the plural number. The words "shall" and "will" are mandatory. and "may" is permissive, Words not otherwise defined shall be construed to mean the common and ordinary meamng 1. "City" shall mean the City of Winter Springs. a Florida municipal corporation. ~ "Lot" shall have the same meaning provided with Chapter 20 of the City Code of Ordinances. 1. "Neighborhood" shall mean any area of the City where people live In close proximity of one another. but shall not require a defined geographic area, 4. "Parcel" shall mean a contiguous quantity ofland in the possession of. owned by. or recorded as property of an individual or legal entity. City of Winter Springs Ordinance No. 2002-09 Page 2 of 8 i. "Tract" shall mean a lot. piece. or parcel of land. the term not importing upon itself. any precise dimension. 6. "Tree" shall mean woody perennial plant having a single usuallv elongate main stem generally with few or no branches on its lower part Sec. 13-2. Prohibitions Littel ;II~. (a) It shall be unlawful for any person to place or throw, or cause to be placed or thrown, any paper, bottles or pieces thereof, tin cans, garbage, glassware, refuse, debris or any other offensive, unwholesome or unsightly matter whatever in or on any street, road, sidewalk, alley, playground, vacant property or any other public grounds, or in or on the bank of any canal, stream, lake, watercourse or pool within the city. (b) It shall be unlawful for any person to cause or permit junk, scrap metal, scrap lumber, wastepaper products, discarded building materials, or any unused abandoned vehicle, or abandoned parts, machinery or machinery parts, garbage, trash or other waste materials to be in or upon any yard, garden, lawn, outbuildings or premises owned, rented, leased or otherwise occupied by him/her in the city unless in connection with a business enterprise lawfully situated and licensed for the same. (c) The existence of excessive accumulation or untended growth of weeds, undergrowth or other dead, or living plant life; or stagnant water, rubbish, garbage, refuse, debris, trash, including but not limited to household furnishings, and all other objectionable, unsightly or unsanitary matter upon any lot, tract or parcel of land within this city be it uncovered or under open shelter, to the extent and in the manner that such lot, tract or parcel of land is or may reasonably become infested or inhabited by rodents, vermin or wild animals, or may furnish a breeding place for mosquitoes, or threatens or endangers the public health, safety, or welfare, or may reasonably cause disease, or adversely affects and impairs the economic welfare of adjacent property, or any other objectionable, unsightly substance or material tending by its existence and/or accumulation to endanger or adversely affect of health, safety, lives, and/or welfare of the citizens of the city, is hereby prohibited and declared to be a public nuisance and unlawful. @ It shall be unlawful to allow any dead. damaged or diseased tree to remain upon private or public property within the city. when the same constitutes a hazard to the health. welfare. safety. and property of the citizens of and visitors to the city. It shall be further unlawful for property owners to not keep tree limbs and shrubs overhanging public rights-of-way trimmed or pruned so to not interfere with any streetlight or obstruct the view of any street intersection thereby creating a hazard to vehicular or pedestrian traffic. Wtd1 It shall be the duty of the owner of each lot, tract, or parcel of land within the city to City of Winter Springs Ordinance No, 2002-09 Page 3 of 8 reasonably regulate and effectively control excessive growths and accumulations, as enumerated in subsection (c), and/or dead, damaged or diseased trees as enumerated in subsection (d), on the property and on the portion of the adjoining public right-of-way between the property and the street. It shall also be the duty of the owner to drain, regrade or fill any lot, tract or parcel, including swimming pools thereon, which shall be unwholesome or unsanitary, have stagnant foul water thereon, or be in such other condition as to be susceptible to producing disease or danger to the citizens of the city. illfe1 If the dil ectol of code enforcement manager or his/her designee finds and determines that the conditions a public nuisance as described and declared in subsections (c), (d), and (e) hereof exists, and that such conditions constitute a public nuisance, he/she shall so notify the record owner of the offending property and demand that such owner cause the condition to be remedied. The notice shall be given by both physical posting on the property in the name of the property owner( s) and by personal delivery or certified mail to the owner or owner(s) as their names and addresses are shown upon the record of the Seminole County tax assessor. Notice shall be deemed complete and sufficient when so physically posted and personally delivered or mailed. The notice required by subsection illfe1 shall be no less than eleven (11) inches by seventeen (17) inches and shall be of a bright color, attached to a wooden stake, and placed in front of the property visible from the roadway, and contain the following: (1) N ames( s) and address( es) of the owner( s) of the property, according to public records of Seminole County, Florida. (2) Location of the property on which the violation exists, (3) A statement by the code inspector that the property has been inspected pursuant to section 13-2 and that a violation of subsections (c), (d), and (e) has been determined to exist on the property, which violation constitutes a public nuisance. (4) A description of the condition which causes the property to be in violation. (5) A requirement that the record owner of the property remedy the violation within fifteen (15) days from the date of the notice, failing which the city may will remedy the condition and assess against the record owner the cost thereof plus an administrative charge, (6) A statement that, if the costs and administrative charge are not paid within fifteen City of Winter Springs Ordinance No, 2002-09 Page 4 of 8 .Lill thirtJ (30) days of invoice date, a lien will be placed on the property which is enforceable by foreclosure on the property. (7) A schedule of the charges which may be assessed against the record owner if the city has to remedy the violation. (8) An estimate of the total cost, based on the schedule of charges, if the violation is remedied by the city. Such estimate is not to be interpreted or construed as the final cost which may be assessed, but only as a good faith approximation of such cost. The final assessable cost may be greater or lesser than the estimate. (9) A statement that the record owner of the property has a right to appeal the determination. of the existence of a public nuisance. by the code enforcement manager and may, within fifteen (15) days from the date of the notice, submit a written appeal, to the code enforcement manager. from the determination of a public nuisance, which must contain the location of the violative property all reasons, evidence and argument that the cited conditionW dotes} not constitute a a public nuisance and therefore a violation of this section. (10) If an appeal is submitted. as provided above. the city shall take no action to remedy the public nuisance. as determined by the code enforcement manager. until an order is rendered by the City Commission. Within fifteen (15) days flom thG date of the notice, the 0 w nGr of the. pIoperty may appcal the. deteI mination of nuisance by submitting a t:v I itten appeal to sho \lV that the condition does not constitutG a public nuisance. Such appeal shall be add I essed to the directoI of code GnfOI CGnlcnt and shall state the hame of the pIopert} OWheI, the location of the cited ploperty, and tIle grounds upon t:vh:ich the O\'IVnel relies in order to show dun the cited condition does not constitute a public Iluisance. .(g) Appeal by property owner. If a property owner submits a written appeal. as provided in subsection Cf) above. a public hearing shall be scheduled at the next regular meetinfi!: of the city commission. At the hearing. before the citv commission. the property owner. the code enforcement manager or the manager's designee. and any interested party may submit evidence in suoport of or in opposition to the manager's determination of the existence of a public nuisance upon the property. Following the presentation of evidence the city commission shall issue an order either: (I) finding the existence of a public nuisances as determined by the code enforcement manager and ordering the property owner to remedy the violation within a reasonable period oftime. not to exceed thirty (30) days. or the city may remedy the violation as provided in subsection (D; or (2) finding the public nuisance does not exist and dismiss the case against the property owner. City of Winter Springs Ordinance No. 2002-09 Page 5 of 8 OOffl Removal by city. If after fifteen (15) days from the date of the notice no written appeal has been filed or within the time required by the City Commission. whichever first occurs. and the condition described in the notice has not been remedied, the manager direc.tol or the manager's his/hel designee shall cause the condition to be remedied by the city at the expense of the property owner, Ifa written appeal has been filed and the finding of public nuisance is upheld, the dil ector of code enrol cement 01 his/hel designee may Gause the condition to be remedied by tile Gity at the expense of tile propel ty owner unless the city Gonlluissiol1 othel \'Vise dil ects. tt1 If a wIitten appeal has beelI filed and tIle. finding of publiG nuisance is I evel sed, the city will not assess any cost 01 administrative penalties against the plOpert}, altllough such adl11:inistrati ve penalties would othel ~ise be c1uthOlized by subsection (11) of this sec.tion. tz1 In cases involving major public nuisance conditions requiring immediate, direct action to abate hazards imminently dangerous to the health, welfare or safety of the public, the city may, upon the directol of code enforcement manager's authorization, cause the conditions to be immediately remedied by city-authorized lot cleaning or tree removal. Notice of said lot cleaning shall be given within five (5) days after the lot cleaning or tree removal and according to the procedures detailed in subsection ill. te1 above, except that the notice shall additionally explain that the property contained hazards requiring immediate remedy, that the property has already been cleaned, and that the property owner has fifteen (15) days from the date of the notice to apply to city commission to show why costs of cleaning should not be assessed against the propertv owner's his/heI property. Said ehlGfgency lot deaning 01 tlC:.e lenloval shall be at the. expense. orthe. propelty O\JVnel, however, the plOperty owner may make a written lequest for a healing before city commission as above provided within fifteen (15) dayS flom tIle date of notice that his/her lot had to be deane.d and that a charge is being assessed thel efore. illtg} After causing the condition to be remedied, the director of code enforcement shall certify to the city manager dilectoI of finance the expense incurred in remedying the condition whereupon such expense, plus a charge to cover city administrative expense, plus any administrative penalty as provided in subsection ill. th}, shall be provided to the property owner by certified mail return receipt requested and shall become payable within fifteen (15) thirty (30) days, after which a special assessment lien and charge will be made upon the property, which shall be payable with interest at the a statutory rate provided for in s. 55,03. Florida Statutes of eight (8) pel cent per annum from the date of such certification until paid. (1) Such lien shall be enforceable in the same manner as a tax lien in favor of the City of Winter Springs and may be satisfied at any time by payment thereof including accrued interest. Notice of such lien may be filed in the office of the Clerk of the Circuit City of Winter Springs Ordinance No. 2002-09 Page 6 of 8 Court and recorded among the public records of Seminole County, Florida. (2) If the subject property is secured by locks or otherwise, the city shall have the authority to enter said property for purposes of remedying the violative condition, and any additional costs incurred by the city in gaining access to the property or in resecuring the property after cleaning shall be considered expenses of remedying the condition. illW In addition to the actual cost of remedying the violation cited under subsections (c).. and (d). and ( e), the city may also assess a charge to cover administrative expenses incurred in securing and monitoring the services of a private contractor to remedy the violation. Said administrative charge shall be reviewed and approved by city commission at least on an annual basis. (1) If a second violation of subsections (c).. and (d). or (e) occurs upon is dted against the same property and property owner within twelve (12) months from the date of the first violation citation, an administrative penalty of one hundred dollars ($100.00) shall additionally be assessed five (5) days after the second violation citation. If the condition is abated by the owner during that five (5) day period, the administrative penalty will not be assessed. If a third violation of subsections (c).. and (d). or (e) occurs upon is cited against the same property and property owner within twelve (12) months from the date of the first violation citation, an administrative penalty of two hundred dollars ($200,00) shall additionally be assessed five (5) days after the third violation citation. If the condition is abated by the owner during that five (5) day period, the administrative penalty will not be assessed. Subsequent violations cited against the same property and property owner shall be referred to the city's attorney for appropriate legal action including, but not limited to, injunctive relief, in addition to enforcement as provided by this chapter, 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. 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. City of Winter Springs Ordinance No, 2002-09 Page 7 of 8 '0' Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the _ day of , 2002. PAUL P. PARTYKA 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. 2002-05 Page 8 of 8