HomeMy WebLinkAbout02-21-2003 Legal Opinion - Tree Replacement Credits (Villagio Developement)F E B 2 4 7003
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BROWN, WARD, SALZMAN & WEISS, P.A. cC q CnKC
Usher L. Brown
Suzanne D'Agresta'
Anthony A. Garganese'
Gary S. Salzman°
John H. Ward'
Jeffrey S. Weiss
•Board Certified Civil Trial Lawyer
°Board Certified Business Litigation Lawyer
'Board Certified City, County & Local Government Law
Attorneys at Lazy
Offices in Orlando, Kissimmee,
Cocoa & Viera
February 21, 2003
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
(Villagio Development)
Dear Mayor Bush and Members of the City Commission:
Debra S. Babb
Jeffrey P. Buak
Todd K. Norman
John U. Biedenharn, Jr.
Joseph E. Blitch
Jennifer A. Michael
Michelle A. Reddin
Vincent E. Scarlatos
Erin J. O'Leary
Of Counsel
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." See
§ 5-2(d), Winter Springs Code (repealed); § 5-9(5), Winter Springs Code. The Code does
225 East Robinson Street, Suite 660 • P.O. Box 2873. Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566
Website: www.orlandolaw.net • Email: firm@orlandolaw.net
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 § 5-9(6), Winter 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 § 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 "enhancement and maintenance of trees" or the intent and
purpose of the arbor ordinance.
"Rational Nexus" Test
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 Pinellas
County v. Cityof 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.
r
The Honorable Mayor John F. Bush and
Members of the City Commission
February 21, 2003
Page 3
Villagio Development
In this case, 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. 1 st, DCA 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.
AAG:jf
V truly yours,
Anthony A. Garganese
City Attorney