HomeMy WebLinkAbout2003 02 24 Regular A Villagio Development Project
022403_Regular_A_ Villagio_ Tree_Options
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COMMISSION AGENDA
ITEM A
Consent
Informational
Public Hearing
Regular X
February 24, 2003
Meeting
Mgr. I'-- / Dept.
Authorization
REQUEST: City Manager requesting the City Commission to decide outstanding issues
relative to the Villagio Development Agreement and direct the City Attorney to finalize the
Development Agreement inclusive of the Commission's determinations.
PURPOSE: This Agenda Item is needed to finalize outstanding issues related to the Villagio
Development project for incorporation into the final Development Agreement.
CONSIDERATIONS:
On February 10, 2003 the Commission reviewed a proposed Development Agreement for the
Villagio project.
Five issues were left for further deliberation as follows:
1) Vested rights relative to the City's Tree Ordinance.
2) Utilization of tree credits to acquire a 30-foot tree buffer.
3) Ownership of the 30-foot tree buffer.
4) Final arbor obligation.
5) Preservation of the 61 trees in the 30- foot tree buffer.
Vested Riehts. At the December 16, 2002 Commission meeting the City Attorney opined
verbally that Villagio was vested under the tree ordinance that was in effect prior to the adoption
of the current ordinance that was adopted on April 8,2002.
022403_Regular_A_ Villagio_ Tree_Options
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Commissioner Blake challenged the fact that an OpIniOn was given by the attorney. The
verbatim opinion of the attorney is attached hereto in attachment "A". The Commission directed
the City Attorney to provide the Commission with a written opinion. That opinion confirming
his verbal opinion is attached in attachment "B".
Utilization of Tree Credits to Purchase Tree Buffer or Conservation Easements. The
Commission directed the City Attorney to provide a written opinion regarding the Commission's
authority to purchase land and/or conservation easements with tree credits for the purpose of
saving trees.
The City Attorney's OpIniOn stating that the Commission has that authority is provided In
attachment "C".
Ownership of the Tree Buffer. Two scenarios were offered to the Commission relative to
ownership of the 30-foot buffer; one in which the buffer was donated to the homeowners
association in consideration of $36,716 in tree credits, and one in which Villagio retained
ownership of the buffer and granted the City a conservation easement over the buffer. A new
scenario has been offered for consideration reducing the contribution of tree credits 50% from
$36,716 to $18,358. The three scenarios on the table today are listed below.
Scenario 1. The developer conveys the tree buffer to the Stone Gable Homeowners Association,
builds the brick wall on the w~stern boundary of the tree buffer, and provides the
City with a conservation easement over the buffer in consideration of the City
giving the developer $18,358 in tree credits.
Scenario 2. The developer conveys the ownership of the 3D-foot buffer to the City, builds the
brick wall along the western boundary of the tree buffer, in consideration of the
City providing the developer with $18,358 in tree credits.
Scenario 3. Developer retains ownership of the 3D-foot buffer and builds a brick fence along the
Stone Gable property line and donates a conservation easement to the City at no
cost.
The Commission needs to decide which ownership option it desires. In making this
determination the Commission needs to consider the following:
A) For liability reasons, the developer will not build the brick wall on the western
boundary of the buffer unless the ownership of the buffer can be conveyed to
either the Stone Gable Homeowners Association or the City, or unless the
developer can build a chain link fence along the eastern boundary of the buffer.
Construction of a chain link fence probably will not be desirable to the
homeowners from an amenities perspective.
B) Construction of the brick wall on the eastern boundary of the 30-foot buffer will
result in far more impacts on the trees than constructing the wall along the
western boundary of the buffer.
022403_ Regular _A _ Villagio _ Tree_Options
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Therefore, it appears that Scenario I or 2 in which the wall would be built on the western
boundary of the 30-foot buffer and the buffer being conveyed to either the homeown~rs
association or the city are the preferred scenarios.
Final Tree Oblif!ation.
Attachment "D" demonstrates in detail the final tree credits that will be due to the
city under the three scenarios as summarized below.
Scenario I
Scenario 2
Scenario 3
$43,942
$43,942
$66,500
The Commission needs to decide the final tree obligation to the tree bank.
Final Tree Bank Oblif!ation.
It is recommended that the Commission approve the final tree obligation
contained in either Option I, 2, or 3 as further explained in detail in attachment
"D" .
Tree Protection Guarantee.
The Commission desires the 61 trees in the buffer to be guaranteed for one year after
construction by an agreement to replace inch for inch trees that are dead or dying.
The developer has agreed to this guarantee.
RECOMMENDATION - VESTED RIGHTS:
Staff recommends that the Commission confirm the City Attorney's opinion relative to the
developers vested rights to the tree Ordinance in effect prior to April 8,2002.
RECOMMENDATION - COMMISSION AUTHORITY TO ACQUIRE PROPERTY:
Staff recommends that the City commission confirm the opinion of the city Attorney that the
Commission has the authority to acquire land and conservation easements from tree replacement
funds or tree obligation credits for the purpose of conserving trees.
RECOMMENDA TION - OWNERSHIP:
Staff recommends that the commission approve either Scenario I in which the developer
conveys the buffer to the homeowners association or Scenario 2 in which the buffer is conveyed
to the City.
022403_ Regular _A _ Villagio _ Tree_Options
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RECOMMENDATION - FINAL TREE PAYMENT OBLIGATION:
It is recommended that the Commission approve the tree replacement obligation set out in
exhibit "D" that is consistent with the Commission's decision on ownership of the buffer.
RECOMMENDATION - TREE PROTECTION GUARANTEE:
Staff recommends that the Commission add the following tree protection language to the
development agreement.
"The Developer agrees that one year from completion of the construction of the brick
wall, the Developer will cause an evaluation of the 61 trees located within the buffer area
to be performed by a certified arborist acceptable to the Developer and the City, and that
the Developer will replace inch for inch any and all of the 61 trees which do not meet
Florida Grades and Standards of survivability at a location mutually acceptable to the
City Arborist and the Developer within the buffer and/or the Villagio site."
IMPLEMENTA TION:
Decisions made by the Commission will be memorialized in the Development Agreement which
will be returned to the Commission at a future meeting along with the combined preliminary and
final engineering plans for approval.
A TT ACHMENTS:
Attachment A. Verbatim City Attorney Vested Rights Determination.
Attachment B. Written City Attorney Vested Rights Determination.
Attachment C. Written City Attorney opinion on Commission Authority to Utilize Tree Credits
to Acquire Land and/or Conservation Easements to Protect Trees.
Attachment D. Arbor Obligations
COMMISSION ACTION:
022403_ Regular _A _ Attachment_ A
ATTACHMENT "A"
CITY ATTORNEY VERBAL OPINION
VERBATIM
December 16, 2002 Commission Meeting
Response to Commissioner Edward Martinez, Jr.
Commissioner, if you recall the last time we dealt with this issue you
handled these types of vested issues on a case by case basis, and based
on the fact they were described to me by staff the applicant submitted a
preliminary plan some time ago before the new arbor ordinance was
adopted, and staff met with the applicant on numerous occasions and
the applicant kept revising the plan accordingly and then only then did
the new ordinance come into effect. When the applicant was well down
the road with his, with his plans, based on facts that were relayed to me,
I'm of the opinion that the applicant would have a good vesting
argument that he was vested under the old ordinance. Notwithstanding,
the old ordinance required the applicant to meet certain conditions for
the removal of trees, and also require the applicant to make substantial
payments into the tree bank, and that's the old ordinance which staff
has been applying all along to this development application.
ATTACHMENT "B"
CITY ATTORNEY VESTED RIGHTS DETERMINATION
(TO BE DELIVERED UPON RECEIPT FROM CITY ATTORNEY)
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BROWN, WARD, SALZMAN & \XTEISS, P.A.
Att(}ntey.r at T A11.J
Usher L. Brown .
Suzanne D'Agresta"
Anthony A: GBrgeneseU
Gary S, Salzman"
John H. Ward ·
Jeffrey S. Weiss
Offic.e.s ill Orlanllo, r<i~simmcc.
Cowa & V(c:ra
Oebra S. Babb
Jenrey P. 6uoll
Toda K. Norman
John U. Bieden/'larn, Jr.
Joseph E. Blllch
Jennifer A. Michael
Michelle A. ReddIn
Vincent E. Scarlatos
'B03rd CBrtll1ed CIVil Trial Lawyer
.Board Certified Buslnus UtIgallon Lawyer
"Board Certified City, County & Local Government Law
Erin J, O'leary
Of Counsel
February 19, 2003
The Honorable Mayor John F. Bush and
Members of the City Commission
1126 East State Road 434
Winter Springs, Florida 32708-6912
Re: Villagio Development Agreement lOur File No. 1193
Dear Mayor Bush and Members of the City Commission:
This letter is in response to the City Commission's request that we provide an
opinion regarding whether Ordinance No. 2002-08 is applicable to the proposed Villagio
Development (hereinafter "Villagio").
I. Legal Issue:
Based on competent substantial evidence, whether the City is equitably estopped
from applying all or part of Ordinance No. 2002-08 to Villagio.
II. General Relevant Facts:
A. The Villagio applicant ("Applicant") held several pre-application
conferences with City staff before submitting to the City the
preliminary engineering/site plan, including one conference on
August 7, 2001.
B. In the autumn of 2001, the Applicant submitted to the City a concept
plan for review and comment by City staff.
22S East Robinson Street, SUi!1l 660 . p,O, BQ\( 2873. Orlando, Florlda 32802.2873
Orlando (407) 425.9S(l6 Fel( (407) 425-9596 . Kissimmee (321) 402-0144' Cocoa e. Viera (666) 425-9566
Website: www.or1andolaw.n81 . Email: firm@orlandolaw.net
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The Honorable Mayor John F. Bush and
Members of the City Commission
February 19, 2003
Page 2
C. On January 11, 2002, the Applicant submitted the preliminary
engineering/site plan to the City.
D. Subsequent to January 11, 2002, and prior to the adoption of
Ordinance 2002-08, the City's Development Review Committee
("DRe") reviewed and commented on the preliminary engineering/site
plan.
E. On April 8, 2002, (prior to the April 8, 2002 City Commission
meeting), the Applicant submitted the final engineering/site plan to
address DRC's comments.
F. On April 8. 2002, the City Commission adopted Ordinance No. 2002-
08 which established the new arbor ordinance of the City.
G. Subsequent to the adoption of Ordinance No. 2002-08, the Applicant,
on numerous dates, submitted a revised final engineering/site plan or
additional information (April 24, 2002; July 24, 2002; August 1,2002;
October 2, 2002; November 11, 2002).
H. In an October 31, 2002 memorandum to file, John Baker stated that
the "COD staff, in good faith, has consistently told the Applicant that
tree issues were adequately addressed."
I. On November 20, 2002, the City's Planning and Zoning Board
recommended approval of the final engineering/site plan with
conditions.
J. Prior to April 8, 2002, there is no indication that the City ever informed
the Applicant that the adoption of Ordinance No. 2002-08 was
pending.
III. Applicable Standard of Review and Law:
The applicable standard of review and law is very complex and beyond the scope
of this letter. The essence of the law, however, is as follows:
A STANDARD OF REVIEW.
"Competent substantial evidenceD is the evidentiary standard which should
be applied to determine whether the City is equitably estopped from applying
all or part of Ordinance No. 2002-08,
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The Honorable Mayor John F. Bush and
Members of the City Commission
February 19,2003
Page 3
Competent substantial evidence has been defined to mean sufficiently
relevant and material evidence that a reasonable mind would accept as
adequate to support a conclusion, Deqroot v. Sheffield, 95 SO.2d 912 (Fla.
1957),
B. APPLICABLE LAW.
The common law of vested rights/equitable estoppel is applicable.
In this case, the property owner would be permitted by law to proceed under
the prior arbor ordinance if it can demonstrate by competent substantial
evidence that it substantially altered their position in reliance on the prior
arbor ordinance. To proceed under the prior ordinance, the property owner
must satisfy the elements of equitable estoppel. The three (3) elements of
equitable estoppel are:
(1) a property owner's good faith reliance;
(2) on some act or omission of the government; and
(3) a substantial change in position or the incurring of excessive
obligations and expenses so that it would be highly inequitable
and unjust to destroy the right he acquired.
Franklin County v. Leisure Properties. Ltd., 430 So.2d 475 (Fla. 1st DCA
1983),
Stripped of legal jargon,
(1) Estoppel amounts to nothing more than an application of the
rules of fair play.
(2) One party will not be permitted to invite another onto a
welcome mat and then be permitted to snatch the mat away to
the detriment of the party induced or permitted to stand
thereon.
(3) A citizen is entitled 10 rely on the assurances or commitments
of a zoning authority and if he does, the zoning authority is
bound by its representations, whether they be in the form of
words or deeds,
Town of Largo v. Imperial Homes Corp., 309 SO.2d 571 (Fla. 2d DCA 1975).
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The Honorable Mayor John F. Bush and
Members of the City Commission
February 19, 2003
Page 4
IV. Applicable Ordinances:
A. Previous Winter Springs Code, Chapter 5, Arbor,
B. Ordinance No. 2002-08 (new Chapter 5).
V. Analysis and Recommendation:
Under the equitable estoppel doctrine, situations may arise where the City is
estopped (prevented) from enforcing a change in zoning regulations against one
who has substantially altered their position in reliance on the prior regulation. The
reasoning underlying this rule of law is that a property owner should be able to plan
for the development of their property in a manner permitted by existing regulations
with some level of assurance that the ground rules are not changed in the middle
of the game. See ~ 25.155, McQuillins on Municipal Corporations. Of course,
however, there are exceptions under this general rule, There may be
circumstances where the public interest must be given priority over the interests of
the property owner. See e.9-. Smith v. Clearwater, 383 So. 2d 681 (FJa_ 2nd DCA
1980).
In this case, it appears that the Applicant has in good faith relied on City staff to
proceed in preparing a preliminary and final engineering/site plan ("Plan") for City
Commission approval based on the prior arbor ordinance, This reliance occurred
both prior to and after the adoption of Ordinance No. 2002-08. Under these
circumstances, the Applicant has a good argument that the City is now estopped
(prevented) from applying Ordinance No, 2002-08 to deny the Plan or to require
major modifications to the Plan. In other words, the prior arbor ordinance shall
apply to the extent that the Applicant relied on that ordinance to prepare and submit
their Plan.
With that said, I am also of the opinion that some provisions of Ordinance No,
2002-08 are applicable. Particularly, Sections 5-10 (prohibitions), 5-12 (permit
contents; expiration; removal after expiration of permit); 5-14 (tree protection during
development and construction; periodic inspection); 5-15 (voluntary tree planting);
5-16 (waivers and appeals); 5-17 (remedial action); 5-18 (enforcement; penalties);
and 5-19 (author;zation to adopt rules and fees} should apply, These provisions
should apply because they are purely regulatory in nature and are unrelated to the
Plan submitted by the Applicant.
1
The Honorable Mayor John F, Bush and
Members of the City Commission
February 19, 2003
Page 5
I look forward to discussing this letter at the next City Commission meeting,
Anthony A. Garganese
City Attorney
AAG:jf
ATTACHMENT "C"
CITY ATTORNEY OPINION ON COMMISSION
AUTHORITY TO UTILIZE TREE CREDITS TO ACQUIRE
LAND AND/OR CONSERVATION EASEMENTS TO
PROTECT TREES
(TO BE DELIVERED UPON RECEIPT FROM CITY ATTORNEY)
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BRO\XlN, WARD, SALZMAN & WEISS, P.A.
AIt()nt~s at Lan'!
Usher l. Brown" Offices in Orlando, r<:is~irnmee..
Suzanne D'Agrestao Cocon & Vicf3
Anthony A Garg:ilneseo
Gary S. Salzman.
John H Ward'
Jeffrey S. Weiss
Debra S. Babb
Jf!ffrey P. Buak
TOdd K. Norman
John U. Biedenl1arn. Jr.
Joseph E. Blitch
Jllnnlrer A. MichaGl
Michelle A. Reddin
Vincent E. Soar1atos
"Board CMlifreri Civil Trial La~
"Soard Certified Business litigation Lawyer
"Board Certified City, County & Local Government Law February 21, 2003
Erin J. O'Leary
Of Counsel
The Honorable Mayor John F. Bush and
Members of the City Commission
1126 East State Road 434
Winter Springs, Florida 32708-6912
Re: Legal Opinion - Tree Replacement Credits
(Viii agio Development)
Dear Mayor Bush and Members of the City Commission:
This letter is in response to the City Commission's request for a legal opinion
regarding whether the City Commission has the authority to grant tree replacement credits
(tree bank money) in exchange for property and easements in order to preserve trees.
Summary
As explained below, I am of the opinion that the City Commission has the authority
to use tree replacement credits to acquire property for purposes of preserving trees. The
property may be acquired by deed, easement, or some other acceptable means of
dedicating land to the public. In addition, tree replacement credits may be granted in
exchange for other public benefits as well, including requiring a developer to provide
enhanced landscaping.
Tree Replacement Fees and Credits
The payment of money to the City for the right to remove trees on property can
generally be called an environmental mitigation fee ("Fee"). The Fee is intended to offset
the environmental impact that a particular development will have on the community. To
offset the environmental impact, the previous and current arbor ordinances require the Fee
to be used for the "enhancement and maintenance of trees located on public lands,n See
9 5-2(d), Winter Springs Code (repealed); 95-9(5), Winter Springs Code. The Code does
225 East Robinson Street, Suite 660. P.O, Box 2673. Orlando, Flor1da 32002.2873
Orlando (407) 425-9568 Fax (40./) 425-9596. Kissimmee (321) 402'()144 . Cocoa & Viera (86S) 425-9566
Website: \Wffl.orlandotaw,nel . Emall: firm@.orlandolaw,nel
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The Honorable Mayor John F. Bush and
Members of the City Commission
February 21, 2003
Page 2
not define the term "public lands." In addition, the new arbor ordinance allows a property
owner to offset the environmental impact by planting enhanced landscaping or dedicating
a public conservation area to the City. See 9 5-9(6), '^linter Springs Code. Further, the
new arbor ordinance allows the City Commission to waive the requirements of the arbor
ordinance under certain conditions including when the arbor ordinance denies a property
owner the reasonable use of land or where the waiver is consistent with the purpose and
intent of the arbor ordinance. See 9 5-16(a), Winter Springs Code.
Therefore, the previous and current arbor ordinances both provide ample
opportunities for the City to grant a property owner credits towards the payment of the Fee.
In other words, the City can credit the payment of the Fee in exchange for some other
public benefit related to the uenhancement and maintenance of trees" or the intent and
purpose of the arbor ordinance.
"Rational Nexus.' Test
I was unable to find a case that directly addresses the exact issue presented.
However, under Florida law, it appears that the "rational nexus" test is the appropriate
method for scrutinizing the appropriateness of granting a tree replacement Fee credit in
exchange for some other public benefit. See, e.g., Volusia County v. Aberdeen at Ormond
Beach, 760 So. 2d 126 (Fla. 2000); Contractors and Builders Association of Pinel/as
Countyv. City of Dunedin, 329 So. 2d 314 (Fla, 1976); Wald v. Metropolitan Dade County,
338 So. 2d 863 (Fla. 3d DCA 1976); Hollywood, Inc. v. Broward County, 431 So. 2d 606
(Fla. 4th DCA 1983); compare Dolan v. Tigard, 512 U.S. 374 (1994); Nollan v. California
Coastal Commission, 483 U.S. 125 (1987) (the United States Supreme Court has adopted
a similar "rough proportionality" test). The "rational nexus" test requires that there be some
reasonable relationship between the tree replacement Fee credit and the exchanged
public benefit received by the City.
In my opinion, the "rational nexus" test is satisfied if the City receives from the
property owner enhanced or more expensive landscaping and/or conservation areas
dedicated to the public in exchange for the tree replacement Fee credit. Further, the City
may also decide, on a case-by-case basis, that a property owner can earn a tree
replacement Fee credit by some other means that is reasonably related to the intent and
purpose of the arbor ordinance. However, any public benefit received by the City in lieu
of payment of the Fee should generally be equivalent to the amount of the tree
replacement Fee credit.
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The Honorable Mayor John F. Bush and
Members of the City Commission
February 21, 2003
Page 3
Villagio Development
In this easel the property owner appears willing to convey a conservation easement
to the City in perpetuity. The easement will preserve existing trees and permit the City to
plant additional trees within the easement area. It is my view there is a "rational nexus~
between granting the property owner a tree replacement Fee credit in exchange for a
conservation easement dedicated to the City. The fact that the underlying fee simple title
to the easement property may be conveyed to the adjacent homeowner's association does
not change my view because a dedication of land to public use need not be by warranty
deed, but can be by easement or some other acceptable means. See Mainor v. Hobbie,
218 So, 2d 203 (Fla. 1stDCA 1969).
Conclusion
In conclusion, it is my opinion that the City can grant a tree replacement Fee credit
in exchange for a public benefit, such as a conservation easement or enhanced
landscaping, provided there is a "rational nexus," or reasonable connection, between the
credit and the exchanged public benefit received by the City.
truly yours,
Anthony A. Garganese
City Attorney
AAG:jf
022403_ Regular _A _ Attachment_ 0
ATTACHMENT "D"
ARBOR OBLIGATION
This exhibit demonstrates the developer's arbor obligation as required in the Winter Springs Arbor
Ordinance Chapter 5 Code of Ordinances under two scenarios: Scenario (1) includes the developer
conveying a 30-foot buffer area to the Stone Gable Home Owners Association and conservation easement
over the buffer to the City in consideration for $18,358 in credits against the developer's arbor obligation
and the construction of the buffer wall along the western boundary line of the 30-foot buffer. Scenario 2
includes the developer building the brick wall on the eastern side of the 30-foot buffer, conveying
ownership of the buffer to the City in consideration of $18,358 in tree credits against the arbor obligation,
and City placing a conservation easement over the property. Scenario 3 includes the developer building
the buffer wall along the eastern boundary of the 30-foot buffer and donating a conservation easement to
the City of Winter Springs.
Scenario 1 Scenario 2 Scenario 3
Arbor Oblh?:ation HOA City ViIlaeio
Ownership Ownership Ownership
Clear Cut Oblieation
Arbor Permit Fees $ 9,730 $ 9,730 $ 9,730
Replacement Requirements 104300 104300 104300
Total Clear Cut Obligation $114.030 $114.030 $114.030
200 Tree Replacement Credits $20,000 $20,000 $20,000
30-Foot Easement Credits
61 Tree preservations $6,100 $6,100 $6,100
Arbor Permits 610 610 610
9,179-Sq.Ft.Property/Easement Acquisition (2 per sq. ft.) 18,358 18,358 -0-
Tree Preservation Construction Method 20,000 20,000 15,800
$45,068 $45,068 $22,510
Specimen Tree Credits
2 Tree Preservations $5,000 $5,000 $5,000
Arbor Permits ---.2Q ---.2Q ---.2Q
$5,020 $,5020 $5,020
TOTAL CREDITS $70.088 $70.088 $47.530
NET ARBOR OBLIGATION $43.942 $43.942 $66.500