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HomeMy WebLinkAbout2010 02 03 Public Hearing 503 Ordinance 2010-04 Amending City's Tree CodePLANNING ZONING BOARD LOCAL PLANNING AGENCY ITEM 503 February 3, 2010 Meeting Consent Information Public Hearing X Regular REQUEST: The City Attorney requests the Planning Zoning Board/Local Planning Agency hold a Public Hearing for Ordinance 2010 -04, amending the City's tree code to address energy devices based on renewable resources. SYNOPSIS: Recently, a resident made the City Commission and staff aware that he recently installed solar collectors to provide energy to his home (See City Commission Jan 25, 2010 Agenda Item 604.2). In light of this information, the City has had to consider the impact the installing of solar collectors may have on provisions of the City's tree code. Florida law preempts municipal ordinances that prohibit or have the effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices based on renewable resources. In light of the above, the City Commission should consider a legislative amendment to the City's tree code. APPLICABLE LAW AND PUBLIC POLICY Section 2 (b), Article VIII, of the State Constitution. Florida Statute 163.3194 Legal Status of Comprehensive Plan Florida Statute 163.3201 Relationship of Comprehensive Plan in exercise of Land Development Regulatory Authori Florida Statute 166.041 Procedures for adoption of ordinances and resolutions. Winter Springs Charter Section 4.15 Ordinances in General. Winter Springs Code of Ordinances, Chapter 5. Winter Springs Comprehensive Plan CONSIDERATIONS: This is an amendment being initiated by the City Attorney. 1. Section 163.04 prohibits governing bodies from adopting ordinances that prohibit or have the effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices based on renewable resources. 2. The current tree code does not expressly address renewable energy devices, and the recent situation with a resident has brought this issue to the forefront. Given the current climate of green policies and initiatives, the impacts of this statute on municipal ordinances (including the tree code) may become more prevalent in corning years. The City Commission may wish to February 3, 2010 PUBLIC HEARING AGENDA ITEM 503 Page 2 proactively address this issue to facilitate the intent of the statute, which encourages renewable energy devices. 3. The draft ordinance as written expressly provides criteria and review standards that address section 163.04, Florida Statutes. 4. The legislative intent of the statute is to prohibit driving the costs of owning and operating commercial or residential property beyond the capacity of private owners to maintain. It is the City Attorney's opinion that section 163.04, Florida Statutes is not intended to strictly prohibit the application of all municipal ordinances. However, given the current statutory language and the lack of legal authority interpreting the same, it is difficult to discern when the statute would preempt a municipal ordinance. The draft ordinance addresses this difficulty by authorizing trees to be removed when trees prohibit or have the effect of prohibiting the installation of solar collectors, clotheslines, or other energy devices based on renewable resources and by waiving the requirements for tree replacement and tree bank contributions. FISCAL IMPACT: Given section 163.04, Florida Statutes, the draft ordinance may have a negative impact on future tree bank contributions. COMMUNICATION EFFORTS: Jan. 24, 2010- Public Noticing in the Orlando Sentinel of Local Planning Agency Public Hearing Feb. 3, 2010- Public Hearing before the Local Planning Agency The ordinance will be subject to two advertised public hearings before the LPA and the City Commission and related agenda items will be posted at City Hall and on the City's website. TENTATIVE IMPLEMENTATION SCHEDULE: Feb. 22, 2010 1st Reading of Ordinance 2010 -04 before the City Commission Feb. 25, 2010-Public Noticing in Orlando Sentinel (10 days prior to adoption) Mar. 8, 2010- 2nd Reading /Adoption of Ordinance 2010 -04 STAFF RECOMMENDATION: The City Attorney recommends that the Planning Zoning Board review and hold a Public Hearing on the draft ordinance, and make a recommendation to the City Commission so that this issue may be further analyzed and addressed legislatively. ATTACHMENTS: A. Text of section 163.04, Florida Statutes B. Public Noticing in Orlando Sentinel of P &Z/LPA Public Hearing C. Draft Ordinance 2010 -04 PLANNING ZONING BOARD LPA RECOMMENDATION: ATTACHMENT A Statutes Constitution :View Statutes >2009- >Ch0163- >Section 04 Online Sunshine Page 1 of 1 Select Year: 2009 T Go The 2009 Florida Statutes Title XI COUNTY ORGANIZATION AND Chapter 163 View Entire INTERGOVERNMENTAL Chapter 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 lots 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 intent in enacting these provisions is to protect the public health, safety, and welfare by encouraging the development and use of renewable resources in order to conserve and protect the value of land, buildings, and resources by preventing the adoption of measures which wilt 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. This section shall not apply to patio railings in condominiums, cooperatives, or apartments. 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. Copyright 1995 -2010 The Florida Legislature Privacy Statement Contact Us http: /www.leg.state.fl.us/ STATUTES /index.cfm? App_ mode Display_ Statute &Search_St... 1/15/2010 ATTACHMENT B ORDINANCE NO. 2010-04 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, AMENDING THE CRITERIA AND REVIEW STANDARDS FOR A TREE REMOVAL PERMIT IN FURTHERANCE OF SECTION 163.04, FLORIDA STATUTES, RELATING TO ENERGY DEVICES BASED ON RENEWABLE RESOURCES; AMENDING SPECIFICATIONS FOR TREE REPLACEMENT WAIVERS; 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, Section 163.04 encourages the development and use of renewable resources; WHEREAS, Section 163.04 prohibits governing bodies from adopting regulations that prohibit or have the effect of prohibiting the installation of certain energy devices based on renewable resources; WHEREAS, the City Commission finds that there are environmental and economic benefits related to encouraging the development and use of renewable resources; and WHEREAS, the City Commission finds that its tree protection guidelines should be amended to contain provisions encouraging the development and use of certain energy devices based on renewable resources; WHEREAS, on February 3, 2010, the Planning Zoning Board (Land Planning Agency) conducted a public hearing on this ordinance and recommended approval to the City Commission; 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. 2010 -04 Pagel of 6 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 City Code, Sections 5 -4 and 5 -9 are hereby amended as follows underlined type indicates additions and strikeout type indicates deletions, while asterisks indicate unchanged text. It is intended that omitted text, denoted by asterisks, shall remain unchanged from the language existing prior to adoption of this Ordinance. CHAPTER 5. TREE PROTECTION AND PRESERVATION 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 engage in land clearing located within the city, without first obtaining a permit as provided in this chapter. 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 application and verification on -site by the city forester, a permit may be issued for tree removal under any one of the following 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 City of Winter Springs Ordinance No. 2010 -04 Page 2 of 6 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) Trees that prohibit or have the effect of prohibiting the installation or operation of a solar collector. clothesline. or other energy device based on a renewable resource. tggj LAll 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) Necessity to remove trees which prohibit or have the effect of prohibiting the installation or operation of a solar collector. clothesline. or other energy device based on a renewable resource. The applicant shall submit operating instructions or other manufacturer guidance setting forth the amount of sunlight exposure required for proper operation of the energy device or other such evidence of the necessity to remove trees. (4- LQ 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. t5-YQD Any proposed landscaping including plans whereby the applicant has planted or will plant trees to replace those that are proposed to be cleared. (6) Q Topography of the land and the effect of tree removal on erosion, soil retention and the diversion or increased flow of surface water. City of Winter Springs Ordinance No. 2010 -04 Page 3 of 6 (-7) (8) 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) n 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. M LLQ� The extent of any damage or demonstrated hardship which would result to the applicant from a denial of the requested permit. O*LUI The species and size of the trees proposed for removal. fff-Y 12) The following factors shall also be considered: a. Trees forming the current canopy. b. Preservation of the next generation of trees. 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 such other trees properly approved by the city forester. Replacement shall occur prior to the issuance of a certificate of occupancy (if approval is pending) or within thirty (3 0) 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. The replacement tree(s) shall have at least equal shade potential, screening properties, and /or other characteristics comparable to that of the tree(s) requested to be removed. City of Winter Springs Ordinance No. 2010 -04 Page 4 of 6 (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 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 5- 4(b)(8) and 5- 4(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 paw replacement fee to the city's tree bank as required by this section. 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 City of Winter Springs Ordinance No. 2010 -04 Page 5 of 6 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. 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 2010. JOHN F. BUSH, 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. 2010 -04 Page 6 of 6