HomeMy WebLinkAbout2004 08 09 Regular 502
COMMISSION AGENDA
ITEM 502
CONSENT
INFORMATIONAL
PUBLIC HEARING
REGULAR X
August 9, 2004
Meeting
Mgrr / ~ept.
Authorization
REQUEST:
The Community Development Department Arborist recommends the City Commission approve
the developer's agreement prepared by the City Attorney to allow a Winter Springs builder, Jorge
Espinosa, to remove 3 specimen trees, on a building lot for construction of a single family
residence.
PURPOSE:
The purpose of this agenda item is for the City Commission to consider a Winter Springs builder,
Jorge Espinosa, request to develop the lot at 802 Kilt Court, Winter Springs and to remove
specimen trees and other existing trees. The builder will also remove organic soils and bring in
fill dirt to establish a build able track.
APPLICABLE LAW AND PUBLIC POLICY:
On October 13,2003, Chapter 5 ofthe City Code was repealed and replaced with Ordinance No.
2003-22 (pertinent sections enclosed as attachments).
Sec. 5-2. Intent and Purpose.
Sec. 5-3. Definitions.
Sec. 5-4. Permit Required for Tree Removal and Land Clearing;
Separate Violations Criteria.
Sec. 5-8. Specimen or Historic Trees.
August 9, 2004
REGULAR AGENDA ITEM 502
Page 2
FINDINGS:
Sec. 5-14. Tree Protection During Development and Construction;
Periodic Inspection.
Sec. 5-16. Waivers and Appeals.
1) Section 5-8.b of the Arbor Ordinance provides that a specimen tree shall not be
removed except for extraordinary circumstances and hardships and only by final
permit approval by the City Commission.
2) Lot needs to be excavated of2-5 feet of muck soil and backfilled with an additional
amount to be raised to grade level.
3) The site requires additional fill soil to be brought up to the road level and may require
installation of retaining walls to prevent damage to remaining trees located on the site.
4) These (3) specimen trees along with (28) other trees on the lot need to be removed in
order to build the proposed house.
5) The applicant wants to do a test site on the property to determine the feasibility of
proper construction.
Seasonal Wetlands Staff has requested the owner to obtain a certificate from the State
Department of Environmental Protection to resolve any possible wetlands
jurisdiction issues before dredging and backfilling the site.
DEP Permit
Soil Testin2
Replacements
Off-Site Plantin2
Within 30 days of this developer's agreement, Mr. Espinosa will apply for
A DEP permit for dredge and fill. Upon issuance ofthe DEP permit, the
city agrees to issue a tree removal permit.
The developer agrees to test a confined area to determine soil density for
construction. If the soil density test is passed the developer will proceed
with tree the removals as well as dredging and filling of the lot.
Guidelines for specimen tree replacements in this developers' agreement
calls for fifteen (15) replacement plantings in addition to the fifty five (55)
replacements for other tree removals.
The owner has expressed an interest in planting many fifteen gallon sized
types oftrees on the Highlands H.O.A. grounds (with their approval), in an
attempt to satisfy the required tree replacement credit units. There has
been no landscape plans provided by the owner for staff to review to
determine the amount of trees to go on-site and off-site.
August 9, 2004
REGULAR AGENDA ITEM 502
Page 3
Conclusion Staffs review of this application concludes that the applicant's request is
based upon long term improvements and safety issues that constitute
verification of extraordinary circumstances and hardship.
STAFF RECOMMENDATION:
Based upon staffs review of the facts related to this application, staff recommends that the City
Commission approve the attached Developer's Agreement...
ATTACHMENTS:
A. Ordinance 2003-22 (pertinent excerpts)
B. Location map
C. Developer's Agreement
COMMISSION ACTION:
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See. 5-%,
ATTACHMENT A
Ordinance
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. Intent and Purpose.
. (a) Purpose. The pwpose of this Chapter is to establish proteotive regulations for Trees within
the City in order to maintain and protect the City Forest, to better control problems of
flooding, soil conversation, air pollution and noiSe, 'and to make the City a healthier, more
afuaotive and safer place in whioh to live.
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(b) Intent. The inten.t of this Chapter is to enoourage the protection of the maxJmwn number of
~ Trees within the Prlmaty Tree Protection Zone and of large Specimen Trees within the
Secondary Tree Protection Zon~. Ids further the intent of this Chapter to enoourage the
. protection of Trees native to Central Florida and to encourage proper remov&;l of exotio. pest
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To this end, it shall be unlawful to cut down, damage, poison, or in any other manner destroy
or cause to be destroyed any Tree or other vegetation as covered by the provisions of this
old.il1lU1ce Chapter except in accordance with the provisions set forth herein.
SEC,S;3
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(t-y) Stem. The main trunk of a plant; its primary axis that develops buds and shoots instead of
roots.
Sec'. 5-4.
Permit Requited for Tree Removal and Land Clearingj Separate Violations;
. Criteria; Contractor Permit ~equircd.
(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 perfonn the Land Clearing or Tree RemovaL the
COlltractor shall be responsible for obtaining the penuit required by this Chapter prior to the
Land Clearing or Tree Remov~l. It shall be a separate violation ofthls Chapter for each Tree
removed and each day a person is engaged in Land Clearing ,vithout a penuit.
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" , --~"rv r..... AWUT1w..uJWWWDg any Qtb.erproVision of this Chapter, Specimen or Historio Trees .
.. s~ not be removed except torextraorcUnaryoiro~oes and hardships and only by final
, . pennit approved by the City Commission.
S~ S-9. Tree Replacem.ent GuldeUnes.
(a) fue Replacement. All Trees tbat are removed or destroyed and subjCOllo replaoemenl by
this Chapter shall be replaced by a species of Tree cited in Appendix B, Desirable Trees or
Appe~ C, Ptet\mod Plant Llst or such other Trees properly approved by the City Forester,
=~t ~a11;ccur:: ~ ~ssuance ~ ~oate of OCClWanoy or auoroval is
Pew1ing) m: Rqi~6lW1 o;;ca; willrln nilIet; (90) tblr\y (3JU 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) reques.ted to be removed.
SECS-/~
(b)
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Burden of Tree Protection on Property Owner. It shall be the responsibility of a do "eloper
or applicant property owner and their agents to ensure that any Tree shown on the Tree
inventory for which a Tree Removal permit has not been obtained is to be protected. The
property owner shall guarantee SUIVival of retained trees and Rep lacement Trees for one (1)
year from completion ofpennitted construction, unless a greater time period is required by
development agreement. If a retained or replacement Tree dies during that time period, the
property owner shall replace the Tree in accordance with a remedial action apprqved tUlder
~ 5-17 of this Chapter.
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required to be planted or retained under this Chapter. Trees or plants planted in the City's qghtsMofM
a are sub 'eot to removal or trinunin b , the Cit at an time, No nee 01 plant shall be plant<<i
witbin a City lights-of-way 01 easement without expl~s permission n.OIn the eity Foroster.
Sec. 5-16..
Waivers.! Incentive Prouram; and Appeals.
(a)
Waivers. The City Conunissiol1l11ay gt;allt a waiver to provisions of this Chapter where the
applicant demonstrates that the literal intetpretation of the ordinance Chapter will deny the
applicant reasonable use of the property or where such waiver can be demonstrated to be
consistent with the pUrpose and intent of the ordinance Chapter, The preservation of any
approved Tree.over four (4) inches in caliper may be considered as the basis for the granting
of a waiver from the literal application of the provisions of the City's land development
regulations. If, in the detennination of the City Commission, the sole basis for the request
for waiver is to preserve such Tree which would otherwise have to. be removed, it may direct
any required waiver fee to be waived, . .
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PRINTED: REVISED:
Nov. 2000
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City of Winter Springs, FL
Developed BYEJIGINfflVNG " LAH) SYSTEMS Inc.
ATTACHMENT C
BINDING DEVELOPMENT AGREEMENT
. THIS BINDING DEVELOPMENT AGREEMENT (herein referred to as the "Development
Agreement" made and executed this.~ day of . , 2004, by and between the
CITY OF WlNTER SPRINGS, a Florida municipal corporation (herein referred to as the "City")
whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and JORGE
ESPINOSA aDd MARCIA ESPINOSA, husband and wife, whose address is 314 Heatherwood Ct.,
Winter Springs, Florida, 32708 (hereinafter sometimes referred to as "Developer"),
WITNESSETH:
WHEREAS, Jorge and. Marcia Espinosa, own certain undeveloped property in the City of
Winter Springs, Florida, described in Exhibit a A' attached hereto and incorporated fully herein by .
reference (herein referred to as the "Subject Property"); and
WHEREAS, the Subject Property is located within The Highlands subdivision oftbe City of
Winter Springs, which is. zoned single-family residential; and
WHEREAS, the Developers desire to develop this property by constructing tWo (2) single-
. family residences on the Subject Property; and
WHEREAS, the Subject Property contains several S~timen Trees as defmed by Chapter 5
of the City Code, entitled Tree Protection and Preservation; and
WHEREAS, Specimen Trees may not be removed without demonstrating the existence of
. extraordfuarycircumstance and hardship upon the property owner, additionally approval of the City .
Commission is required (Section 5-8(b), City Code); and
WHEREAS, the existence of the Specimen Trees upon the Subject Property will prohibit the
construction of single-family residential dwellings and deny the Developer reasonable use of their
property, the City Commission has detennined there exist extraordinary circumstances and hardship
upon the Developer; and. . .
WHEREAS, the City is authorized to enter into binding Development Agreements with
developers; pursuant to the Florida Municipal Home Rule Powers Act and/or Chapter 163,. Sections
163.3220 through 163.4243, Florida Statutes~ and
WHEREAS, the City Commission of the City of Winter Springs finds that this Development
Agreement is consistent with the City's Compreh~nsive Plan as well as City Code of Ordinances and
is a legislative act of the City Commission of the City of Winter Springs.
NOW THEREFORE, in consideration of the mutual covenant and mutual benefits herein
contained, the parties agree as follows:
1.' Recitals. The foregoing recitals are hereby incorporated fully herein by this reference.
2.. Authority. This Development Agreement is entered into pursuant to the Florida MUnicipal
Home Rule Powers Act, and the City's Code of Ordinances.
3.
Representations of Developer. Developer hereby represents and warrants to the City that
they will perform fully the tenns and provisions of this Development Agreement. . .
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4. Dredge and Fill Permit.
A, All approvals provided for in this Agreement are conditioned upon the application for
and issuance of a Dredge and Fill Permit, by the Florida Department of Environmental
Protection (hereinafter "DEP").
B. Developer agrees within thirty (30) days of the Effective Date of this Agreement to
apply for a DEP.pemiit to allow for the removal of muck from the Subject Property and the.
addition of clean fill to raise the ground level to an acceptable elevation and soil density for
the construction of single-family residences.
5. Tree Removal Permit.
A. Upon the issuance of the PEP Dredge and Fill Permit, the City agrees to issue a tree
removal permit, in accordance with this Agreement and Chapter 5 .ofthe City Code.
B. The Tree Removal Permit will provide for the removal of certain specimen and non-
specimen trees, identificXl upon Developer's application for tree removal, on file with the
City's Forester as of July 12, 2004, and which are located within the proposed building
footprints of the single-family residential structures.
C. Developer agrees,. in accordance with Chapter 5 of the City Code, to pay all
applicable fees and to adhere to the tree replacement guidelines provided .therein and as
otherwise provided herein. The replacement schedule for SpeCimen Trees shall be as
follows:
Caliper of Specimen Tree
Number of Replacement Canopy Trees (from
Appendix B to Chapter 5, City Code)
R uired for Each S ecimen Tree Removed
5
6
24" u to but not includin 32"
E ual to or Greater than 32"
D. Prior to the removal of any Specimen. Tree under the Tree Removal Permit,
Developer agrees to conduct a "suitability test" of the Subject Property. This suitability test
will be performed by the Developer, in coordination with the City' s Buil~ Department, to
determine if the Subject Property can be made suitable for the construction of single family.
dwelling structures. The suitability test shall be performed in the confined area where each
residence is proposed .to be constructed, and will require thecleanng of non-specimen trees,
dredging and filling in accordance with the DEP permit, and then compacted to determine, in
accordance with the Florida Building Code, if the property can be suitably developed for
single-family residential structures. Developer agrees to contract with an appropriately
licensed Florida engineering firm to conduct a feasibility study of the test area to detennine
sOil compaction and density. The results of the study shall be provided to the Building
Official for review and approval, as provided below.
1. If it is determined by the Building Official that the Sllbject Property can be
made suitable for the construction of smgle-family dwelling units, the Developer may
remove the remaining Specimen and hon-specimen trees, in accordance with the Tree
Removal Permit and this Agreement. The Developer. further agrees to replace the
removed trees in accordance with Chapter 5 and this Agreement. The replacement
. trees shall be located where practical on the Subject Property, but where not practical
on property owned by.the Highlands Homeowners' Association, Inc. (hereinafter
"Associatio'n"), as deemed acceptable to City and the Association.
2. If it is determined by the Building Official that the Subject Property is not
suitable for the construction of single-family dwelling units, the Developer may not
remove the remaining Specimen and non-specimen trees identified by Tree Removal
Permit. The Developer further agrees to replace the trees removed for the suitability
test in accordance with Chapt~r 5. The replacement trees shall be located where '
practical on the Subject Property, but wh.ere not practical on property owned by the
Association, as deemed acceptable to City and the Association.
6. Cooperation and Further Assurances. Developer and the. City shall cooperate fully
with each other to effectuate the tenns, conditions and intentions oftbis Agreement. Further,
each party agrees to adjust, initial, re-execute and re-deliver any and a11documents subject to
this Agreement if de~med necessary or desirable by one or the other of the parties.
7. Authority and Assignment. Each party hereby represents and warrants to the other that they
have full power and authority to enter into this Agreement. Developer also represents that it
is duly authorized to bind the Developer Property to the terms and conditions contained in
this Agreement. The City also represents that aU.requirerhents and procedures, . including
public hearings, have been proPerly conducted so that the execution hereof by the City shall
constitute the fInal approval of this Agreement by the City.
8. Notices. Any notice required or allowed to be delivered hereunder shall be in writing
and shall be deemed to be .delivered when: (a) hand delivered to the official hereinafter
designated, or (b) one day after deposit with a nationally recognized overnight coUrier
serVice, e.g. Federal Express, Purolator, Airborne, Express Mail etc., or (c) by facsimil~
deJivery1 addfessed to a party at the other address as specified below or from time to time by
written notice to the other party delivered in accordance herewith:'
Developer:
. Mr. Jorge Espinosa
314 Heatherwood Court
. Winter Springs, FL 32708
Phone: 407-365-3232
Fax: 407-365-6223
City:
City of Winter Springs
Attention: City Manager
1126 lEast State Road 434
Winter Springs, FL 32708
Phone: 407-327-1800
Fax: 407-327-4753
With copy to:
Anthony A. Garganese, Esq.
City Attorney for the City of Winter Springs
Brown, Gargan:ese, Weiss & D'Agresta, P.A.
225 E. RobinSon Street - Suite 660
POBox 2873
Orlando, PL 32802
Phone: 407-425-9566
Fax: 407-425-9596
.9. Defaults. Failure by either party. to perform each and every one of its obligations
hereunder shall constitute a default, entitling the no defaulting party to pursue whatever
remedies are available to it under Florida law or equity including, without limitation, an
action for specific perfonnance and/or injunctive relief. Prior to any party filing any action
as a result ora default under this Agreement, the non-defaulting party shall :first provide the
defaulting party with written notieeof said defaUlt. Upon receipt of said notice,the
defaulting party shall be provided a thirty (30) day opportunity in which to cure the default to
the reasonable satisfaction of the non-defaulting party prior to filing said action. The
prevailing party in any litigation arising under this Agreement shall be entitled to recover its
reasonable attorney's fees and costs, whether incurred at trial or appeal. .
10. Successon and Assims. This Agreement shall automatically be binding upon and shall
inure to the benefit of the successors and assigns of each of the parties.
11. Annlicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the iaws of the State of Florida. Venue for any state court action shall be
exclusively in Seminole County, Florida, while venue for any federal courta.ction shall be
exclusively in the United States Middle District Court of Florida, Orlando Division.
12.. Amendments. This Agreement shall not be modified or amended except by written
agreement duly executed by both parties hereto.
13. Entire Aereement. This Agreement supersedes any other agreement, oral or written, and
contains the entire agreement between the City and Developer as to the subject matter
hereof.
14. Severability. If any pro.vision of this Agreement shall be held to be invalid or unenforceable
to any extent by a court of competent jurisdiction, the same shall not affect in any respect the
validity or enforceability of the remainder of this Agreement.
15. Effective Date. This Agreement shall become effective upon approval by the City
Commission of Winter Springs and execution of this Agreement by both parties (the
"Effective Date").
16. Recordation. A memorandum of this Agreement and any amendments heretQ shall be
recorded in the public. records of Seminole County, Florida and shall run with the Developer
Property. llw memorandum shall be in a form mutually acceptable to the City and
Developer and shall promptly be recorded. The memorandwn shall include the legal
description of the real property descrihed in Exhibit "A" (the "Developer Property").
17. .RelationshiD of the Parties. The relationship of the parties to this Agreement is contractual
arid Developer is an independent contr~ctor and not an agent of the City. Nothing herein
shall be deemed to create ajoint venture or principal-agent relationship oetween the parties
and neither party is authorized to. nor shall either party act toward third persons or the public
in any manner which would indicate any such relationship withthe other.
18. Soverehm Immunitv. . Not:hi.i1g contained in this Agreement shall be construed asa
waiver of the City's right to sovereignimrnunity \Ulder Section 768.28, Florida Statutes, or
any other limitation on. the City's potential liability under state and federal Jaw.
19. Citv's Police 'Power. The City hereby reserves all police powers granted to the City by law.
In no way shall this Agreement be construed as the City bargaining away or surrendering its
police powers. .
20. Force Majeure. The parties agree that in the. event that the failure by either
party to accomplish any action required hereunder within a specified time period
("Time Period") constitutes a default under the terms ofWs Agreement and, if any
such failure is due to any unforeseeable or unpredictable event or condition beyond
the control of such party, including, but not limited to, acts of God, acts of
government authority (other than the City's own acts), acts of public enemy or war,
riots, civjl disturbances, power failure, shortages of labor or materials, inj unction or
other court proceedings beyond the control of such party, or severe adverse weather
conditions ("Uncontrollable Event"), then, notwiths1anding any provision of this
Agreement to the contrary, that failure shall not constitUte a default under this.
Agreement and any Time Period proscribed hereunder shall be extended by the .
amount of time that such party was unable to perform solely due t() the
Uncontrollable Event.
21. Interpretation. The parties hereby agree and acknowledge that they have both
. participated equally in the drafting of this Agreement and no party shall be favored or
disfavored regarding the interpretation of this Agreement in the event of a dispute
between the parties.
22. Permits. The failure of this Agreement to address any particular City. county,
state, and federal.permit, condition, tenn, or restriction shall not relieve Developer or
the City of the necessity of complying with the law governing said permitting
requirements, conditions, tenn, or restriction.
23. Third Party RiJ!:bts. This Agreement is not a third party beneficiary con1ract and
shall not in any way whatsoever create any rights on behalf of any third party.
24. Counterparts. This Agreement may be executed in any number of
counterparts; each of which when so executed and delivered shall be considered an
original agreement; but such counterparts shall together constitute but one and the
sarpe instrument..
25. Declaration of the City Commission of Winter Sprine:ll. The City Conunission of
the City of Winter Springs hereby finds that this Agreement is consistent with the
City's Comprehensive Plan and land development regulations and is a legislative act
of the City Commission of the City. The City Commission further finds that this
Agreement promotes the public health, safety, and welfare and is consistent with, and
an exercise of, the City's powers wtder the Municipal Home Rule Powers Act, as .
provided in s. 2(b), Article VlII of the Florida Constitution and Chapter 166.021,
Florida Statutes, an<l the City's police powers.
26. Conflict with City Code. To the extent the City Commission detennines there is
a specific conflict between the provisions of the City of Winter Springs Code and this
Agreement, the parties agree that the provisions of this Agreement shall control as if
approved by the City Commission as a legislative act
. .
IN WITNESS WHEREOF, Developer and the City have executed this Agreement
in fonn sufficient to bind them as of the day and year first above written. .
Witnesses: JORGE ESPINOSA, a married man
Print Name:
MARCIA ESPINOSA, his wife .
Print Name:
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoinRinstrument was acknowledged before me this day of ,
2004 by JORGE & MARCIA ESPINOSA, a married couple, who executed the foregoing
instrument and acknowledged before me that they executed the same for the uses and
purposes therdn expressed and 0 who is personally known to me or 0 who has produced
as identification and who did not' take an oath.
(NOTARY SEAL)
Notary Public Signature
Typed or Printed Notiry Name
r
My commission expires:
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Witnesses:
.
CITY OF WINTER SPRINGS, a municipal
corporation existing under the laws of the
State of Florida, .
Print Name:
Print Name:
By:
John F. Bush
Its Mayor
STATE OF FLORIDA
COUNTY OF SEMINOLE
The foregoing instrument was acknowledged before me this _ day of
· 2004 by JOHN F. BUSH, Mayor of the City of Winter Springs, 0 who is
personally known to me and 0 who did not take an oath.
(NOTARY SEAL)
Notary Public Signature
Typed or Printed Notary Name
My commission expires:
G:\Lawyer\jcffb\City of Winter SpringS\Agn::emClllS\BINDING DEVELOPOMENT AGRE~MENT _Espinosa doc