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HomeMy WebLinkAbout2022 08 22 Public Hearing 401 - First Reading of Ordinance 2022-10 amending Chapter 5 – Tree Protection and Preservation • PUBLIC HEARINGS AGENDA ITEM 401 d CITY COMMISSION AGENDA I AUGUST 22, 2022 REGULAR MEETING 1959 TITLE First Reading of Ordinance 2022-10 amending Chapter 5 - Tree Protection and Preservation to address recent changes in State law related to residential property, clarify tree replacement and credit standards, and provide tree replacement credits as an incentive to preserve and protect natural wetlands and public tree canopy conveyed or dedicated to the City. SUMMARY The proposed Ordinance, in part, updates the City's Tree Protection and Preservation Ordinance to address recent changes to State law. In 2022, the Florida Legislature amended section 163.045, Florida Statutes related to the residential property tree removal preemption of municipal home rule previously enacted by the Legislature. The amendment clarifies and corrects certain ambiguities and vagueness in the initially enacted preemption. The amendment is legally significant because it substantially limits the scope and application of the original home rule preemption, especially in light of a recent appellate court decision interpreting the prior version of section 163.045 to broadly preempt home rule. See Vickery v. City of Pensacola, 2022 WL 480742 (Fla. 1 st DCA February 16, 2022) (holding under the prior version of section 163.045 that a local government is not empowered to challenge the sufficiency of the documentation either before or after tree removal; the statute does not require arborists and landscape architects to follow particular standards; and the landowners could take advantage of the statute even though they did not yet reside on the land). Specifically, the changes to State law address several important vague aspects of the prior version of State law which hampered a municipality's ability to apply local and State law to protect trees on residential property which were apparent in the Vickery decision. For example, the law now includes precise standards for onsite tree risk assessments performed by a certified arborist or Florida-licensed landscape architect prior to the removal of the tree that poses an unacceptable risk to persons or property. The assessments must be documented and use the guidelines set forth in the Best Management Practices - Tree Risk Assessment, Second Edition (2017). Additionally, the documentation must be "possessed" by the property owner rather than simply"obtained" at no certain time under the prior version of the statute. 1 Further, a tree now poses an unacceptable risk if removal is the only means of practically mitigating its risk below moderate. In addition, the Legislature has defined "residential property," for purposes of limiting the application of the State preemption under Section 163.045, to mean only"a single-family, detached building located on a lot that is actively used for single-family residential purposes and that is either a conforming use or a legally recognized nonconforming use." The statute now provides: 163.045. Tree pruning, trimming, or removal on residential property (1) For purposes of this section, the term: (a) "Documentation" means an onsite assessment performed in accordance with the tree risk assessment procedures outlined in Best Management Practices--Tree Risk Assessment, Second Edition (2017) by an arborist certified by the International Society of Arboriculture (ISA) or a Florida licensed landscape architect and signed by the certified arborist or licensed landscape architect. (b) "Residential property" means a single-family, detached building located on a lot that is actively used for single-family residential purposes and that is either a conforming use or a legally recognized nonconforming use in accordance with the local jurisdiction's applicable land development regulations. (2) A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on a residential property if the property owner possesses documentation from an arborist certified by the ISA or a Florida licensed landscape architect that the tree poses an unacceptable risk to persons or property. A tree poses an unacceptable risk if removal is the only means of practically mitigating its risk below moderate, as determined by the tree risk assessment procedures outlined in Best Management Practices--Tree Risk Assessment, Second Edition (2017). (3) A local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section. (4) This section does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to ss. 403.9321-403.9333. The proposed Ordinance also: 1 . Clarifies tree replacement and credit standards by amending the applicable Tables to explicitly address tree replacement standards and credits for specimen and non-specimen trees that are 24" or greater. 2. Provides a landowner the opportunity to obtain tree replacement credits for the conveyance or dedication of wetlands to the City, as an incentive to preserve and protect natural wetlands and public tree canopy in conjunction with a development project. 2 RECOMMENDATION The City Attorney and Staff recommend the City Commission conduct First Reading of Ordinance 2022-10 amending Chapter 5 - Tree Protection and Preservation. 3 ORDINANCE NO. 2022-10 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA; AMENDING CHAPTER 5 OF THE WINTER SPRINGS CODE OF ORDINANCES, PROVIDING FOR TREE PROTECTION AND PRESERVATION REGULATIONS TO ADDRESS RECENT CHANGES IN STATE LAW RELATED TO RESIDENTIAL PROPERTY, CLARIFYING THE TREE REPLACEMENT AND CREDIT STANDARDS SET FORTH IN THE TABLES, AND PROVIDING TREE REPLACEMENT CREDITS AS AN INCENTIVE TO PROTECT AND PRESERVE NATURAL WETLANDS AND PUBLIC TREE CANOPY CONVEYED OR DEDICATED TO THE CITY IN CONJUNCTION WITH A DEVELOPMENT PROJECT; PROVIDING OTHER CONFORMING AMENDMENTS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under § 2(b), Art. VIII of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, during the 2022 legislative session, the Florida Legislature amended section 163.045,Florida Statutes related to tree regulations that require the City Commission to update the City's Tree Ordinance; and WHEREAS, the City Commission recognizes the environmental importance of wetlands and that state policy seeks to prevent or minimize the loss of wetland functions; and WHEREAS, the City Commission also recognizes that wetlands are an important water resource and provide public benefits including cleaning, or filtering, pollutants from surface waters; storing water, for example from storms or runoff; preventing flood damage to developed lands; recharging groundwater; serving as nurseries for saltwater and freshwater fish and shellfish that have commercial, recreational and ecological value; and serving as the natural habitat for a variety of fish, wildlife and plants, including rare, threatened, endangered and endemic (native) species (source: St. Johns River Water Management District https://www.sjrwmd.com/education/wetlands); and WHEREAS, recognizing the public importance of wetlands, the City Commission also desires to provide for additional strategies to protect and preserve natural lands and the public tree canopy by also offering incentives on natural wetlands dedicated or conveyed to the City in conjunction with a development project; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. City of Winter Springs Ordinance No. 2022-10 Page 1 of 7 4 NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by reference as legislative findings of the City Commission of Winter Springs. Section 2. Code Amendment. The City of Winter Springs Code of Ordinances, Chapter 5, is hereby amended as follows (underlined type indicates additions and stfikeett type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 5. It is intended that the text in Chapter 5 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this ordinance): Chapter 5— TREE PROTECTION AND PRESERVATION * * * Sec.5-4.5 Exemption for tree removal activities authorized and preempted by state or federal law. Land clearing and tree removal activities authorized and preempted by state or federal law shall be exempt from section 5-4, permit required. Land clearing and tree removal activities authorized and preempted by state or federal law include, but are not limited to: (1) Removal of trees on residential property which pose ager an unacceptable risk to persons or property in accordance with F.S. § 163.045, for which no replacement trees will be required. Property owners removing trees pursuant to F.S. § 163.045 shall obtai possess documentation from an arborist certified by the International Society of Arboriculture or a Florida-licensed landscape architect prior to removal of the tree; For purposes of this section, "documentation" shall mean an onsite assessment performed in accordance with the tree risk assessment procedures outlined in Best Management Practices — Tree Risk Assessment, Second Edition (2017) by an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect and signed the certified arborist or licensed landscape architect. The documentation must demonstrate that the tree poses an unacceptable risk to persons or property and that removal is the only means of practically mitigating its risk below moderate, as determined by the tree risk assessment procedures outlined in Best Management Practices — Tree Risk Assessment, Second Edition (2017). Further, for Fef purposes of this section, a "residential property" shall pfavided iii this seetiefl mean a single-family, detached building located on a lot that is actively used for single-family residential purposes and that is either a conforming use or a legally recognized nonconforming use in accordance with the City's applicable land development regulations. The term "residential property" for purposes of this subsection does not include any property not meeting the aforementioned definition including, but not limited to, multi-family property; common areas owned by a homeowners or condominium association;vacant land zoned or designated residential or mixed use(e.g., mixed use, town center, and GID) on the city's official zoning map or future land use City of Winter Springs Ordinance No. 2022-10 Page 2 of 7 5 map; public rights-of-way; or land subject to particular landscaping, tree planting or preservation requirements pursuant to an executed development agreement, landscape easement granted to the city, or conservation easement. (2) A right and responsibility granted to an electric utility to clear vegetation away from power lines in order to ensure the safe transmission of electricity to customers, as provided by state statutes and Electric Tariff Rules including the preemption under F.S. § 163.3209. Sec. 5-9. Tree replacement guidelines. (a) Tree replacement. All trees that are removed or destroyed and subject to replacement by this chapter shall be replaced by a species of tree cited in appendix B, desirable trees, or cited in appendix C for approved streetscape canopy tree types for streetscape trees along S.R. 434 and Tuskawilla Road, or such other trees properly approved by the city arborist provided the replacement satisfies the minimum guidelines set forth in this chapter including, but not limited, size, not an invasive species, and Florida Grades and Standard One or better plant. Replacement shall occur prior to the issuance of a certificate of occupancy (if approval is pending) or within sixty(60) days of removal or destruction,whichever date is earlier,unless a greater replacement period is provided for good cause by permit. (b) Criteria for replacement trees is as follows: (1) Characteristics of replacement trees. Canopy trees are preferred replacement trees under this chapter. The replacement tree(s) shall have the maximum amount of potential shade canopy feasible and sustainable on the site as required by the city, but no less than at least equal shade canopy potential, screening properties, and/or other characteristics comparable to that of the tree(s)requested to be removed. (2) Size of replacement trees. Replacement tree(s) are to be made according to the tree replacement standards set forth in Table 1 [at the end of this section]; or (2) otherwise agreed upon by the city commission and applicant. (3) Tree species. Relocated or replacement trees shall include only species and sizes defined as desirable trees (Appendix B) under this chapter. (4) Transplanting and maintenance requirements. All trees transplanted pursuant to this chapter shall be maintained in a healthy, living condition. Any such trees which die shall be replaced and maintained by the property owner. The city shall retain jurisdiction for one (1) year to ensure compliance with this chapter. (5) Waivers of replacement tree(s)specifications. a. General waivers. The number of required replacement trees may be waived by the city commission, if the city commission determines that the remaining number of trees to be preserved on site are of sufficient number and quality to substantially comply with the purpose and intent of this chapter and a tree replacement fee is paid to the city's "tree bank," which is hereby established. Monies collected in the tree bank shall be used for enhancement and maintenance of trees on public lands. The contribution to the tree bank may be waived by the city commission for individual homeowners, on a case-by-case basis, if the homeowner can demonstrate that the payment of the fee will cause the homeowner an undue economic hardship. Substitute tree(s)allowed under this waiver provision must have the approval of the City of Winter Springs Ordinance No. 2022-10 Page 3 of 7 6 city commission. The amount to be paid into the tree bank shall be set forth in Table 1 and should be based upon wholesale market value of the trees being replaced, plus installation and maintenance costs to establish the tree. b. Renewable resource waivers. The tree replacement and tree bank requirements of this section shall not apply if a permit based on sections 54(b)(8) and 54(c)(4) is issued. If the permittee does not maintain and operate the permitted energy device for at least three (3) years, the permittee must replace the removed trees or pay a tree replacement fee to the city's tree bank as required by this section. (6) Replacement guidelines. The following tree replacement guidelines shall apply: a. All plant material specified shall be Florida Grades and Standard One (1) or better. b. For each tree located within a public conservation area (e*eltidi ig twis ieti,na wetlands deteR�aiiqed by the St. john's River Wate-F Management Dist-Fiet Of the U of Wifftef Spfings Ca mpr-ehe* dedicated to the city or located within land(s) to be conveyed to the City-as part of a development project, three-(3)0 to eight (8 replacement tree credits may be applied to the total number of trees required to be replaced by this chapter as an incentive to protect and preserve natural lands and the public tree canopy. The applicable tree replacement credits shall be determined in accordance with the table included in subsection (e) herein. However, the minimum tree requirement set forth in section 5-13 shall still apply. Such public conservation area or conveyed lands)must be at least one(1)acre with widths not less than one hundred twenty-five (125) feet,unless otherwise approved by the city commission. In addition, trees approved by the city arborist to reforest such conservation or convey area shall also be applied to the replacement requirement on a ene two-for-one basis as an incentive to protect and preserve natural lands and the public tree canopy. c. If the city commission determines, due to site conditions or configuration, it is impossible or impracticable for the applicant/developer to meet the requirements for tree replacement, under this subsection, the city commission may allow the applicant/developer to pay into the city's "tree bank"the amount it would have spent on replacement trees. d. Tree replacement credit above the 1:1 standard replacement requirement shall be allowed for the installation of preferred canopy trees and plants that are specifically listed in appendix B: desirable trees and appendix C: approved streetscape canopy tree types for streetscape trees along S.R. 434 and Tuskawilla Road, provided the desirable tree is listed with an additional replacement credit score of above 1:1. e. In addition, for new development projects, tree replacement credit shall be allowed for the preservation of existing desirable trees on the development site, excluding wetlaf a areas aii—d existing conservation areas, as follows: DBH of Preserved Reduction in Replacement Trees Tree 4" up to but not 1 credit including 9" 9" up to but not 2 credits including 12" City of Winter Springs Ordinance No. 2022-10 Page 4 of 7 7 12" up to but not 3 credits including 16" 16" up to but not 4 credits including 24" 24"and above,Non- 6 credits Specimen tree Specimen and 0 credits,unless otherwise agreed by the city for extraordinary efforts and historic trees commitments made to preserve a specimen or historic tree up to a maximum of-5 8 credits per tree f. Trees planted under a power line shall not exceed a mature height of twenty-five (25) feet unless otherwise prohibited by the electric utility or law. g. Diversity of species shall be required for replacement trees and not more than twenty (20) percent of the replacement trees shall be of a single species unless an alternative landscape plan is approved by the city commission. h. All landscape plans shall be prepared by a landscape architect licensed by the state, unless the city determines the proposed landscaping or tree removal has a de minimis impact on the property. (c) Replacement cost. The property owner shall be responsible for the cost of replacing the trees removed from their property. (d) Elimination of undesirable gees and shrubs. The natural vegetative communities existing within the city shall be protected by the control and elimination of invasive,nonnative species. To that end, the following guidelines shall apply: (1) Planting of trees and shrubs listed in Appendix A, Undesirable Trees, is prohibited. (2) Removal of trees and shrubs listed on Appendix A,Undesirable Trees,from commercial, office, industrial, or multifamily sites (excluding jurisdictional wetlands) shall be completed, whenever practicable, as a requirement for approval of any development permit issued by the city or the issuance of a certificate of occupancy if applicable. (3) Control and elimination procedures shall in no way promote the proliferation of the species through the dispersal of seed or other vegetatively reproducing parts. (4) Control and elimination procedures shall in no way harm or cause the decline of preserved or planted trees and landscaping. (e) Limited exception for existing single-family lots. Notwithstanding any other tree replacement standard set forth in this section, a tree removal permit for a single tree shall be granted, as a matter of right without replacements required, for each existing single family home lot, provided the city arborist determines that: (1) The tree is not a specimen or historic tree; (2) The tree canopy covering the pervious portion of the lot after removal of the tree will be greater than fifty(50)percent; and (3) A permit under this subsection (e) had not been granted during the preceding ten-year period. City of Winter Springs Ordinance No. 2022-10 Page 5 of 7 8 TABLE 1. TREE REPLACEMENT STANDARDS DBH of Number of Number of Desirable Contribution Protected Replacement Replacement Plant to Tree Bank* Tree Canopy Trees Small Trees or Required for Each Palms Required Tree Removed for Each Tree Removed 4"' up to 1 or 1 or Desirable or $300.00 but not plant(s) including w/credits 9" 9" up to 2 or 2 or Desirable or $600.00 but not plant(s) including w/credits 12" 12" up to 3 Not allowed or Desirable or $900.00 but not plant(s) including w/credits 1611 16" up to 4 Not allowed or Desirable or $1,200.00 but not plant(s) including w/credits 24" 24" or 6 Not allowed or Desirable or $1,8500.00 greater, plant(s) Non- w/credits Specimen ->24" or See section 5-8 Not allowed See See section 5-8 greater, section 5- Specimen 8 These amounts may be adjusted biannually to compensate for increases to costs of plants as well as to costs of installation and establishment. Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph,number or letter, and any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like errors may be corrected and additions, alterations, and omissions, not affecting the construction or meaning of this Ordinance and the City Code may be freely made. City of Winter Springs Ordinance No. 2022-10 Page 6 of 7 9 Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction,whether for substantive,procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance. Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to the City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the day of , 2022. KEVIN MCCANN, Mayor ATTEST: CHRISTIAN GOWAN City Clerk APPROVED AS TO LEGAL FORM AND SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY. ANTHONY A. GARGANESE City Attorney First Reading: Legal Ad Published: Effective Date: City of Winter Springs Ordinance No. 2022-10 Page 7 of 7 10