HomeMy WebLinkAboutRE Specimen Tree at 139 oak Ln (9)Yes. They have two distinct, but related problems; (1) remediation for
the removal of the specimen tree; and (2) code enforcement. Both have
to be resolved. Hopefully, you can resolve cumulatively in one
settlement prior to going to the code board.
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
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From: Todd Morley [mailto:T.Morley@cityofcapecanaveral.org]
Sent: Friday, February 20, 2015 11:06 AM
To: Anthony A. Garganese
Subject: Re: Specimen Tree at 139 oak Ln
Anthony,
Ok. That would get us to:
• 92 inches (46 dbh x 2) of trees planted, or
• $4600 contribution to the tree bank @ $50 per inch (92x50=$4600), or
• A combination of plantings and tree bank contribution.
Including the $5000 authorized by 162 and the $500 penalty, we have a
starting point demand of just over $10K.
Am I on track?
Thanks
Todd
Todd Morley, Director
Economic Development Dept.
City of Cape Canaveral
110 Polk Ave.
P.O. Box 326
Cape Canaveral, FL 32920
(321) 868-1222 x14
t.morley@cityofcapecanaveral.org
<mailto:t.morley@cityofcapecanaveral.org>
www.cityofcapecanaveral.org
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On Feb 19, 2015, at 2:59 PM, Anthony A. Garganese
<agarganese@orlandolaw.net <mailto:agarganese@orlandolaw.net> > wrote:
Todd, given the developer must remove the specimen tree under
the circumstances, my thought regarding remediation is to use 102-41(b).
That section provides that the city has a right to impose remediation
for the removal of a specimen tree at a maximum 2 to 1 ratio per dbh.
As such, take the dbh of the removed tree and multiply by 2 as a
starting point demand.
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
<http://cp.mcafee.com/d/k-Kr3x0SyMCMMMqemmnztPrXVEVh7c9CzAS--qekhP3zxJZY
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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.
Regards,
Anthony A. Garganese
Sent from IPad
On Feb 19, 2015, at 1:51 PM, Todd Morley
<T.Morley@cityofcapecanaveral.org
<mailto:T.Morley@cityofcapecanaveral.org> > wrote:
Anthony,
Thanks. Additionally, Section 102-38(b)(1) imposes a
$500 fine for the removal of a specimen tree.
Trying to apply remedial requirements is challenging.
Section 102-49(b) requires a restoration plan and gives
three choices:
1. Replacement of same size tree (not practical at
46” dbh), or
2. A 4X payment to the tree bank. However, for this
size of tree, there is no dollar amount provided. The table says “To be
preserved”.
3. Planting four desirable species in accordance
with section 102-54. However, for this size of tree, there is no number
of replacement trees specified. The table says “To be preserved”.
I’m trying to arrive a logical, reasoned approach to
remediation.
Any help? I am available to discuss today
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/1jWVIp6zqb2r38V5UQsK6XCTTPhOyeojd79JZYQsEzC773rX
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“If it is to be, it is up to me”
<image001.png>
From: Anthony A. Garganese
[mailto:agarganese@orlandolaw.net]
Sent: Friday, February 13, 2015 5:57 AM
To: Todd Morley
Cc: David Dickey; David Greene
Subject: RE: Specimen Tree at 139 oak Ln
Importance: High
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
<image005.gif>
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://cp.mcafee.com/d/k-Kr3zqb2r38V5UQsK6XCTTPhOyeojd79JZYQsEzC773rXVE
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0lwrphdIZnZvnZI>
Email: agarganese@orlandolaw.net
<mailto:agarganese@orlandolaw.net>
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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
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CzAQglQGq80H0SOyrCK4M>
“If it is to be, it is up to me”
<image006.png>
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
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“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
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“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. 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
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