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Home My WebLink AboutRE Specimen Tree at 139 oak Ln (2)Todd, I’ve given this one some significant thought. It appears that the developer intentionally damaged the tree before applying for the requisite tree removal permit. The tree now appears to be so far damaged and so close to the structure under construction that it must come down or the structure removed in favor of trying to save the tree that will forever be disfigured. As such, at this stage of your investigation and case study, this appears to be a classic case of an intentional violation of the City Code which is irreparable or irreversible. Therefore, one approach to take is as follows: 1. Due to the intentional damage of the tree, the tree no longer fits the definition of a specimen tree. As such, the final removal of the tree does not require City Council approval. However, as you pointed out, the violation requires that Staff impose remedial action upon the developer under section 102-41. 2. In addition, and in conjunction with the remedial action, Staff should promptly serve upon the developer a notice of code violation for the intentional violation of the tree ordinance and seek a fine not to exceed $5,000 for an irreparable or irreversible violation of the City Code. Section 162.09(2)(a), Florida Statutes provides: A fine imposed pursuant to this section shall not exceed $250 per day for a first violation and shall not exceed $500 per day for a repeat violation, and, in addition, may include all costs of repairs pursuant to subsection (1). However, if a code enforcement board finds the violation to be irreparable or irreversible in nature, it may impose a fine not to exceed $5,000 per violation. (b) In determining the amount of the fine, if any, the enforcement board shall consider the following factors: 1. The gravity of the violation; 2. Any actions taken by the violator to correct the violation; and 3. Any previous violations committed by the violator. 3. You did not indicate in your email whether the construction has been completed and a certificate of occupancy issued by the City. If the certificate of occupancy has not been issued, the City should seriously evaluate whether it should require the developer to complete the remedial action and payment of the code enforcement fine PRIOR to issuance of the certificate of occupancy or prior to issuing any other final building inspections on the project. Once the notice of code violation is served, you could attempt to settle (payment in full in exchange for a release) the fine issue and dismiss the case before the matter is actually heard by the Code Board in order to expedite a final resolution of the matter. However, any agreed upon settlement should be approved by the City Manager using the $5,000 cap and factors stated above and should be commensurate with the egregious nature of the violation that resulted in adversely affecting the Council’s jurisdiction to make determinations regarding the protection of specimen trees. The later point cannot be overemphasized because if this situation were to frequently occur without appropriate sanctions imposed by the City, the Council’s jurisdiction over these matters could be severely diminished if developers found it easier to pay a small penalty than protecting specimen trees as required by City Code. If you have any questions on this matter, please follow-up with a phone call so we can talk it through. Regards, Anthony Anthony A. Garganese, Managing Shareholder Board Certified City, County & Local Government law 111 N. Orange Avenue, Suite 2000 Orlando, Florida 32801 P.O. Box 2873 (32802-2873) Phone (407) 425-9566 Fax (407) 425-9596 Kissimmee (321) 402-0144 Cocoa (866) 425-9566 Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net <http://www.orlandolaw.net/> Email: agarganese@orlandolaw.net Any incoming e-mail reply to this communication will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we may not receive your reply and/or we may not receive it in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time-sensitive by means other than e-mail. Confidentiality Note: This e-mail, and any attachment to it, contains privileged and confidential information intended only for the use of the individual(s) or entity named on the e-mail. If the reader of this e-mail is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that reading it is strictly prohibited. If you have received this e-mail in error, please immediately return it to the sender and delete it from your system. Thank you. From: Todd Morley [mailto:T.Morley@cityofcapecanaveral.org] Sent: Tuesday, February 10, 2015 2:04 PM To: Anthony A. Garganese Cc: David Dickey Subject: RE: Specimen Tree at 139 oak Ln Anthony, Any news on this one? Thanks, Todd Todd Morley, Director Economic Development Dept. City of Cape Canaveral 105 Polk Ave. P.O. Box 326 Cape Canaveral, FL 32920 (321) 868-1220 x 330 t.morley@cityofcapecanaveral.org <mailto:t.morley@cityofcapecanaveral.org> www.cityofcapecanaveral.org <http://cp.mcafee.com/d/1jWVIqdEI9ILCzB-X3xKVJZYQsEzC4PhOrvvd7a8VxNMS--q ekhP3a9JZYQsI6zBxAQsCZ8X4zIfFUaH4_o8lfQNMddRyvI4aDWoU6CS4T7ZgovW_8zATATx TnKnjhhLOrPz339EVVqWdAkRrEKsG7DR8OJMddECSjt-jpoKMC--OCrKr01mBcJlSSHvroqp -eDY01MTfBqNfYI2HiCmGXrlLJIdc_7j-00CPhOyMMYr1oQAq81xrXil-1Ew1cvYQgrcQg8I CzAQglQGq80H0SOyrCK4M> “If it is to be, it is up to me” From: Anthony A. Garganese [mailto:agarganese@orlandolaw.net] Sent: Tuesday, January 27, 2015 9:28 AM To: Todd Morley Cc: Anthony Garganese; David Dickey Subject: Re: Specimen Tree at 139 oak Ln Hi Todd. I remember when it was pulled. I need to analyze this situation and the applicable code provisions because I see a potential overlap of jurisdictional duties between the code board and council that I want to think through. I'll be in touch. Regards, Anthony A. Garganese Sent from IPad On Jan 27, 2015, at 8:46 AM, Todd Morley <T.Morley@cityofcapecanaveral.org <mailto:T.Morley@cityofcapecanaveral.org> > wrote: Anthony, You may recall that an item was pulled from the December City Council agenda. It was a request for Council to approve the removal of a specimen tree at 139 Oak Ln. Background: A building permit application was filed with the City to construct a new home. The submittal included plans and a survey showing the intended location of the house. The tree in question was indicated on the survey as being in the proposed rear yard. Because of its distance from the proposed structure (approx. 10 ft.) it appeared to be intended for preservation. There was no indication that it was proposed for removal. The building permit to construct the home was issued. Several weeks later, the footings were dug and concrete forms were put in place. As required, the developer called for a slab inspection prior to pouring the concrete slab. He submitted the required “Form-Board Survey”. The Form-Board Survey (the 2nd survey now submitted) again indicated that the tree was approximately 10 ft. away from the structure. However, during the site inspection it was noted that the tree was actually less than one ft. away from the structure (form boards were in place). The developer was contacted. He indicated that he would need to remove the tree. He was informed that City Council approval would be required prior to removal because the tree was a Specimen Tree. The slab inspection was approved with the understanding that developer would timely submit an application to remove the tree. He subsequently submitted the attached tree removal permit application. Staff prepared the attached Agenda Cover Sheet. The item was removed from the agenda because it was discovered on the date of the Council meeting that the developer had recently cut a large notch out of the side of the tree and had removed more than 1/3 of the canopy to continue the construction of the new home (concrete block walls were now up and the roof structure was complete). The City Arborist was requested to inspect the damage to the tree. He reported that: · The notching alone would not kill the tree, · The tree was so close to the structure that it could cause damage to the structure, · More than 1/3 of the canopy had been removed, · 24” of fill dirt was placed around the house foundation and the base of the tree, and · The combination of all of these items will affect the overall life span of the tree. These findings indicate violations of a number of code sections [Sec. 102-44(d), (g) and (h)]. In a normal situation, the survey would have accurately depicted the proximity of the tree to the proposed structure and the developer would have indicated the need for removal and applied for City Council approval prior to commencing construction. When asked to explain the course of events, the developer indicated that: · He was unaware of the error in the surveys until the form boards were in place. · It was at that time that he realized the tree needed to be removed. · He continued construction despite the pending approval, assuming the Council would approve the removal of the tree. Where to go from here. Sec. 102-41 states: (b) Notwithstanding any other provision of this division, specimen trees shall not be removed except for extraordinary circumstances and hardships and only by final permit approved by the city council. As a condition of removal of any specimen tree, the city council shall have the right to require that replacement trees be planted or a contribution to the tree bank be made in accordance with section 102-43, except replacement and/or tree bank contribution shall be based on a maximum of a two-to-one ratio of cumulative diameter (dbh) basis of specimen trees removed using the data in Table 1. It is probably a forgone conclusion that City Council would approve the removal. After all, the tree is so close to the house that it is going to have to be removed. Council would certainly require mitigation. Are you of any other avenue whereby this item could be a straightforward Code Enforcement process (without Council involvement)? Sec. 102-49 – Remedial Action - provides a method for Staff to deal with violations. I look forward to discussing with you. Todd Todd Morley, Director Economic Development City of Cape Canaveral 110 Polk Ave. P.O. Box 326 Cape Canaveral, FL 32920 (321) 868-1222 x14 (321) 868-1247 (fax) t.morley@cityofcapecanaveral.org <mailto:t.morley@cityofcapecanaveral.org> www.cityofcapecanaveral.org <http://cp.mcafee.com/d/5fHCN8e6zqb2qrbzz39EVdTdLLCzB4sMCqejrXVEVh7cee6T TPhOyeophdLLCzBwQsIcCzATF7oAtxZf1loDX12F-Ce1FKIjZwxk_j70QSywUqehRC7-LPa8 VB7HTbFIInVNdxZ7BHEShjlKqenel3PWApmU6CQjqpK_9IInojvvpjdTdw0HiCmGXrlLJIdc _7j-00UrDOJoD-m1lFjbltJGTSS6CvzF_00jrzP0VZcQsCNs1kzh0cbvqiLMd409z_Cy3pCy 15AQsCy2KBjh05o6Skjv5Ycdj9Jb777> “If it is to be, it is up to me” From: Jeff Ratliff Sent: Thursday, January 15, 2015 2:57 PM To: Todd Morley Cc: Kay McKee; Tim Davis Subject: RE: Specimen Tree at 139 oak Ln Todd: I spoke with Kay and Tim: Tim was asked to do a follow-up inspection of the specimen oak tree at 139 Oak Lane. The construction company at the property had to cut a notch in the trunk of the oak tree to finish the construction of the house. The question is - will these activities kill the oak tree? The notch alone will not kill the tree, but the construction company also cut more than 1/3 of the canopy. Fill dirt was also placed around the house foundation and the base of the tree. The combination of all of these items will affect the overall life span of the tree. Also: 1). Cutting more than 1/3 of the canopy of an oak tree at one time is not good practice. 2). Changing the original grade more than six inches around the base of a tree can affect its health – the construction company raised the grade approximately 24 inches. All of these items may not kill the tree, but will most likely affect the life span of the oak tree. Thanks, Jeff From: Todd Morley Sent: Thursday, January 15, 2015 11:25 AM To: Jeff Ratliff Subject: FW: Specimen Tree at 139 oak Ln Jeff, I would like to talk with you about this. Are you available for a call? Todd Todd Morley, Director Community & Economic Development Dept. City of Cape Canaveral 110 Polk Ave. P.O. Box 326 Cape Canaveral, FL 32920 (321) 868-1222 x14 (321) 868-1247 (fax) t.morley@cityofcapecanaveral.org <mailto:t.morley@cityofcapecanaveral.org> www.cityofcapecanaveral.org <http://cp.mcafee.com/d/k-Kr4x8gdEI9FIKeccCzATsS--qekhP2pEVdLLCzB4sMUUrv vd7a8VxB4S--qem3hOMOqejuAtyhS7QY5lyvI4aDWoU6CWNfS25jZcs3jqa3xEV7movW_cEz CkuLsKCONvD4S7QumKzp5dmVEVsVkffGhBrwqrjdFCXYCONtxdZZBcTsS02JapqHJJm-SMQP YtfU03xKvaRyvVo5mBcJlSSHvroqp-eDY01dKfc3DQPhOr5M5id40MJZFa_0Qg0Cf-q8dCq8 4mjhOq8aWld40lwrphdIcZQwnhI> “If it is to be, it is up to me” From: Tim Davis Sent: Friday, December 19, 2014 9:00 AM To: Todd Morley; Michael German Subject: Specimen Tree at 139 oak Ln Good morning, This e-mail is for the follow up inspection of the specimen tree.You were concerned about the notch cut out of the trunk next to the roof. I don’t think the notch or the trimming they have done will kill the tree and have not seen any die back in the canopy. The tree is so close to the house it could cause problems to the roof or foundation in the future. If you need any more information, please call me(321-863-7341). Thanks, Tim Davis Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing <Agenda Cover Sheet.docx> <139 Oak Lane Attachments.pdf> Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a public-records request, do not send electronic email to this entity. 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