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HomeMy WebLinkAboutItem #11 2nd Reading of Ordinance Creating a New Chapter 45 of the Code of Ordinances of the City of Ocoee be Center of Good t<tos. fo C,O AGENDA ITEM COVER SHEET Meeting Date: December 7, 2010 Item # I I Reviewed By: 4 Contact Name: Michael Rumer City Planner: , Contact Number: Ext. 1018 City Manager: Subject: New Chapter 45 of the Code of Ordinances of the City of Ocoee relating to trees on private residential properties within the city. Background Summary: Trees can reduce the erosion of our top soil by wind and water, cut heating and cooling costs, moderate the temperature, clean the air produce oxygen, provide habitat for wildlife, and increase property values, and improve the aesthetics of the community. Based on numerous comments from citizens to staff and to the City Commission, staff was directed to evaluate and bring forward a means of regulating trees on private residential properties. Staff has prepared a draft ordinance creating a new Chapter 45 of the Code of Ordinances of the City of Ocoee that creates a regulatory framework and policy for the control of planting, removal, maintenance, and protection of trees on private residential properties. Issue: Should the Honorable Mayor and City Commission adoption an ordinance creating a new Chapter 45 of the Code of Ordinances of the City of Ocoee relating to trees on private residential properties? Recommendations Staff recommends that the Honorable Mayor and City Commission adopt an ordinance creating a new Chapter 45 of the Code of Ordinances of the City of Ocoee relating to trees on private residential properties. Attachments: Ordinance relating to trees on private residential properties Exhibit A to Ordinance relating to trees on private residential properties Financial Impact: No new fiscal impacts from the establishment of the tree ordinance are foreseen. Section 51 -128 of the Code of Ordinances provides for permitting of tree removal and the fees required. Type of Item: (please mark with an °x') Public Hearing For Clerk's Dept Use: Ordinance First Reading Consent Agenda X Ordinance Second Reading J Public Hearing Resolution Regular Agenda Commission Approval Discussion & Direction Original Document /Contract Attached for Execution by City Clerk Original Document /Contract Held by Department for Execution Reviewed by City Attorney _ N/A Reviewed by Finance Dept. _ N/A Reviewed by _ N/A ORDINANCE NO AN ORDINANCE OF THE CITY OF OCOEE FLORIDA ADOPTING A NEW CHAPTER 45 OF THE CODE OF ORDINANCES OF THE CITY OF OCOEE RELATING TO TREES ON PRIVATE PREMISES; PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION; PROVIDING AN EFFECTIVE DATE. BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. Authority. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. SECTION 2. A new Chapter 45 of the Code of Ordinances of the City of Ocoee Florida is hereby adopted as follows: See Exhibit "A" attached hereto and by this reference made a part hereof SECTION 3. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION 4. Codification. It is the intention of the City Commission of the City that the provisions of this Ordinance shall become and be made a part of the Code of ordinances of the City; and that sections of this Ordinance may be renumbered or relettered and the word ordinance may be changed to "chapter," "section," "article," or such other appropriate word or phrase in order to accomplish such intentions; and ORLA_1652986.2 regardless of whether such inclusion in the Code is accomplished, sections of this Ordinance may be renumbered or relettered and the correction of typographical errors which do not affect the intent may be authorized by the City Manager, without need of public hearing by filing a corrected or recodified copy of same with the City Clerk SECTION 5. Effective Date. This Ordinance shall become effective ten (10) days after its passage and adoption. PASSED AND ADOPTED this day of , 2010. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA Beth Eikenberry, City Clerk S. Scott Vandergrift, Mayor (SEAL) ADVERTISED , 2010 READ FIRST TIME , 2010 READ SECOND TIME AND ADOPTED , 2010 UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 2010. FOLEY & LARDNER LLP By: City Attorney Y ORLA_1652986.2 EXHIBIT A TO ORDINANCE NO CHAPTER 45 ARBOR CODE ARTICLE I GENERAL PROVISIONS Section 45 -1 Intent Section 45 -2 Application Section 45 -3 Citations to code Section 45 -4 Definitions Section 45 -5 Staff Forester Section 45 -5 Right of entry and inspections Section 45 -6 Higher Standard to prevail in case of conflict with other ordinances or laws Section 45 -7 Requirements not covered by codes Section 45 -8 Liability Section 45 -9 Enforcement of and compliance with other ordinances Section 45 -10 Procedure where violation is discovered Section 45 -11 Appeal ARTICLE II REGULATIONS Section 45 -12 Minimum requirements Section 45 -13 Permit required Section 45 -14 Replacement trees Section 45 -15 Trimming Section 45 -16 City Authority Section 45 -17 Penalty for violation ARTICLE I GENERAL PROVISIONS Section 45 -1 Intent Trees can reduce the erosion of our top soil by wind and water, cut heating and cooling costs, moderate the temperature, clean the air produce oxygen, provide habitat for wildlife, and increase property values by enhancing the economic vitality of business areas, and improve the aesthetics of the community. It is the intent of the City to regulate and establish policy for the control of planting removal maintenance and protection of trees in or upon all private premises, to promote and enhance the beauty and general welfare of the City, to prohibit the undesirable and unsafe removal and maintenance of trees located in private premises and to guard all trees both public and private within the City against the spread of disease, insects or pests Section 45 -2 Application The provisions of this Chapter shall apply to trees growing or hereafter planted in or upon private residential properties within the city. Section 45 -3 Citations to code This chapter may be cited and referenced to as the "Arbor Code. All references in this chapter to "this code" shall refer to this Arbor Code established by this chapter. Section 45 -4 Definitions. The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: DBH Diameter at breast height. "Breast height" is defined to be fifty -four (54) inches above the surface of the ground at the base of plant or tree. DWELLING, MOBILE HOME — A dwelling unit constructed off -site which meets the standards of the U.S. Department of Housing and Urban Development (HUD) adopted pursuant to 42 U.S.C. 5401, et seq. and effective June 16, 1976, or on the date of manufacture, whichever is later. This category shall not include recreational vehicles. DWELLING, SINGLE - FAMILY — A private residential building used or intended to be used as a home or residence in which the use and management of all sleeping quarters and appliances for sanitation, cooking, heating, ventilation, and lighting are designed primarily for the use of one (1) family unit, and with partitioning so that any substantial interior portion of the dwelling may be reached without resort to exterior access, and so that the building has one (1) kitchen and one (1) electrical meter. DWELLING, TWO- FAMILY (DUPLEX) — A residential building designed for or occupied by two (2) families, with the number of families in residence not exceeding the number of dwelling units provided. EASEMENT — A right in the owner of one parcel of land, by reason of such ownership, to unfretted use of the property or another for a specific purpose or purposes. HISTORIC TREE — A historic tree is one that has been designated by the City Commission as one of notable historical interest and value to the City because of its location or historical association with the community. PERSON — Any person, firm, association or corporation. PROTECTED TREE Any tree that has a DBH of more than eight (8)inches, and which is not otherwise exempted from this code. In addition, all palms with at least four and one -half (4 1/2) feet of clear trunk between the ground level and the lowest frond are declared to be protected trees. In addition, all Specimen and Historic Trees are Protected Trees. PUBLIC NUISANCE — Any tree or shrub or part thereof which, (i) by reason of its condition, interferes with the use of any public area or public way; (ii) is infected with a plant disease; (iii) is infested with injurious insects or pest; (iv) is injurious to public improvements, or (iv) endangers the life, health, safety or welfare of persons or property. PRIVATE PREMISES — real residential zoned property improved by Mobile Home, Single- family and Two - family Dwellings REMOVE To relocate, cut down, damage, poison, or in any other manner destroy or cause to be destroyed, a tree. SPECIMEN TREES — All native trees with a DBH of 24 inches or greater. A specimen tree is one that has been officially designated by the City Commission, upon advice of the Staff Forester, to be of high value because of its type, size, age, or other relevant criteria. STAFF FORESTER — the staff person(s) assigned to administer this Code by the Building Official. TREE — any woody plant, normally having one stem or trunk bearing its foliage or crown well above ground level to heights of 15 feet or more Remove: To relocate, cut down, damage, poison, or in any other manner destroy or cause to be destroyed a tree SPECIMEN TREES All native trees with a DBH of twenty -four (24) inches or greater Section 45 -5 Staff Forester The provisions of this chapter shall be administered by the Building Official of the City of Ocoee or such other person or persons designated by said Official or by the City Manager of the City of Ocoee as Staff Forester. All inspections, regulations, enforcement and hearings on violations of the provisions of this chapter, unless expressly stated to the contrary, shall be under such person's direction and supervision. Section 45 -5 Right of entry and inspections. In accordance with the requirements of applicable federal or state law, the enforcement officer, upon presentation of proper identification to the owner, occupant or agent in charge of such property, may enter any premises regulated by the Arbor Code within the City of Ocoee, Florida, during all reasonable hours, to enforce the Arbor Code, except in cases of emergency where extreme hazards are known to exist which may involve the potential loss of life or severe property damage, in which case the above limitations shall not apply. Section 45 -6 Higher Standard to prevail in case of conflict with other ordinances or laws In any case where the provisions of this chapter impose a higher standard than set forth in any other applicable ordinances or state or federal laws, then the standard as set forth herein shall prevail, but if the provisions of this chapter impose a lower standard than any other applicable ordinances or state or federal law, then the higher standard contained in any such ordinances or law shall prevail. Section 45 -7 Requirements not covered by codes Any requirements not specifically covered by the this code but found necessary for the safety, health and general welfare of the occupants of any dwelling shall be determined by the Building and Zoning Official or his designee, subject to appeal to the City Manger. Section 45 -8 Liability Any officer or employee of the City of Ocoee or Code Enforcement Board charged with the enforcement of this chapter in the discharge of their duties shall not thereby render themselves liable personally, and they are hereby relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or permitted in the discharge of their duties. Section 45 -9 Enforcement of and compliance with other ordinances No certification of compliance with this chapter shall constitute a defense against any violation of any other ordinance of the City of Ocoee otherwise applicable to any structure or premises nor shall any provision of this chapter relieve any owner or operator from complying with other applicable City ordinances or prevent any official of the City of Ocoee from enforcing any such ordinances. Section 45 -10 Procedure where violation is discovered A. Whenever the enforcing authority determines that there has been or is a violation or that there are reasonable grounds to believe that there has been or is a violation of any provision of this code, the enforcing authority shall give notice of such violation or alleged violation to the owner of the property which is the subject of the notice and to such other person or persons responsible for the correction thereof under the provisions of this chapter, the Code of Ordinances of the City of Ocoee or other federal, state or local laws, statutes, ordinances, rules or regulations. Such notice shall: (1) Be in writing. (2) Include a description of the real estate or address sufficient for identification. (3) Specify the violation(s) by code citation and factual description and the remedial action required. (4) Include a schedule as to the time allowed for completion of the required improvements necessary to bring the building into compliance with the Arbor Code. B. The written notice referred to above shall be considered to be adequately delivered by depositing the notice in the United States Post Office addressed to such person(s) at his last known address with postage prepaid thereon, certified mail, return receipt requested. C. The time given to comply with violations as defined in the Arbor Code shall not exceed 60 days. The time given may be reduced if determined by the Building and Zoning Official or his designee that violations consist of an imminent danger to life and /or major property damage. D. Any violation not corrected in the time and manner specified in the notice pursuant to this section may be referred to the Code Enforcement Board, or the City, at its options, may independently or concurrently take such other enforcement action as may be permitted by law, statutes or ordinance. Section 45 -11 Appeal A. Any person aggrieved or affected by any decision or notice of the Building and Zoning Official pertaining to this code may appeal such notice or decision to the City Manger. Such appeals shall be filed, in writing, with the Building and Zoning Official within five days from the date of order or notice and must contain at least the following information: (1) Identification of the building or structure concerned by street address or legal description. (2) A statement identifying the legal interest of each appellant. (3) A statement identifying the specific order or section being appealed and the basis of the appeal. (4) The legal signature of all appellants and their official mailing address. B. Upon receipt of an appeal as set forth above, the Building and Zoning Official shall request that the City Manger meet to consider such appeal. The City Manger shall thereafter schedule a meeting of the affected parties. The meeting date shall be not more than 10 working days from the date the appeal was filed with the Building and Zoning Official. The applicant shall be notified by telephone or written notice of the time and date of the meeting. C. Failure of any person to appear at the meeting shall constitute a waiver of his rights to an additional appeal. The meeting shall offer the appellant reasonable opportunity to be heard on those matters or issues raised by the appellant in his written appeal. The appellant may appear at the meeting in person or through his attorney or other designated representative. D. The City Manger shall have the authority to uphold, amend, dismiss the order or notice of violation, grant continuances for good cause or special circumstances or as recommended by designed city officials charged with enforcing these regulations. E. The final decision of the City Manger shall be in writing and shall contain all requirements to be complied with. A copy of the decision shall be delivered to the appellant either personally or by mail. The effective date of the City Manger's final decision shall be as stated herein. ARTICLE II REGULATIONS Section 45 -12 Minimum requirements All private premises shall have, at a minimum, three (3) trees per lot. Said trees shall be at least two (2) inches in DBH and at least ten (10) feet in height. All required trees shall be listed on the approved list. (1) Exception: mobile homes located within a platted mobile home park. (2) Exception: if this requirement is modified by recorded deed restrictions or developer's agreements. (3) Exception: private premises that have received a certificate of occupancy prior to the adoption of the Arbor Code until a tree removal permit is required or there is a violation of another section of the Arbor Code. (4) Exception: private premises with a private septic system may reduce the number of required trees to one (1) required tree. (5) Exception: private premises located on nonconforming lots of record and that have received a certificate of occupancy prior to the adoption of the Arbor Code may reduce the number of required trees to one (1) required tree until such time as the lot is brought into conformity with the Land Development Code of the City of Ocoee.. Section 45 -13 Permit required A. No person shall, directly or indirectly, put down, destroy, remove or move; or effectively destroy through damaging; or authorize the cutting down, destroying, removing, moving or damaging of any protected tree on private premise without first obtaining a permit from the Building Department. An application for tree removal shall be made on forms provided by the Building Department and shall contain, at a minimum, the following information: (1) Identification of the location concerned by street address or legal description. (2) A plot plan /survey indicating the property boundaries, surrounding streets, north arrow, scale, location of tree to be removed and location of replacement tree if applicable. (3) A description of the tree and reason for removal. B. No tree permit will be issued without demonstrating just cause for the removal of the tree. Just cause may be but not limited to: (1) diseased (2) injured such as struck by vehicle or lightning (3) in danger of falling too close to existing structure inflicting damage (4) in danger of falling too close to proposed structure inflicting damage (5) interferes with utility services (6) creates unsafe condition Section 45 -14 Replacement trees A. Upon removal of a protected tree the private premise shall be required to comply with Section 45 -12. If the private premise has three compliant replacement trees on the premise no additional tree replacement is required. If the premise is not in compliance with Section 45 -12 upon removal of a protected tree, sufficient trees complying form the approved replacement list shall be required to be planted within 30 days of the removal of the tree. B. The approved tree replacement list is: Acer rubrum Red maple Aesculus pavia Red buckeye Agarista populifoia FL Leucothoe Carpinus caroliniana Ironwood Carya floridana Scrub hickory Celtis laevigata Hackberry Cercis canadensis Redbud Chionanthus virginicus Fringe tree Cornus florida Flowering dogwood Cornus foemina Swamp dogwood Crataegus spp. Hawthorn Gordonia lasianthus Loblolly bay Ilex cassine Dahoon holly Ilex opaca American holly Ilex vomitoria Yaupon holly Juniperus silicicola Southern red cedar Liquidambar styraciflua Sweet gum Liriodendron tulipifera Tulip tree Lyonia ferruginea Rusty lyonia Magnolia grandiflora Southern magnolia Magnolia virginiana Sweet bay Morus rubra Red mulberry Myrica cerifera Wax myrtle Osmanthus americanus Wild olive /Devilwood Persea humilus Soil bay Persea borbonia Red bay Pinus clausa Sand pine Pinus eliottii Slash pine Pinus palustris Long leaf pine occidentalis Sycamore oc camore y Prunus angustifolia Chickasaw plum Prunus caroliniana Cherry laurel Quercus geminata Sand live oak Quercus incana Bluejack oak Quercus inopina Scrub oak Quercus laevis Turkey oak Quercus Iaurifolia Laurel oak Quercus mytrifolia Myrtle oak Quercus nigra Water oak Quercus shumardii Spanish oak Quercus virginiana Live oak Sabal palmetto Cabbage palm Taxodium ascendens Pond cypress Taxodium distichum Bald cypress Tilia americana Basswood Ulmus alata Winged elm, Cork elm Ulmus americana American Elm, White elm Vaccinium arboreum Sparkleberry Viburnum obovatum Walters Viburnum C. Minimum size of replacement tree: (1) Shade trees, single trunk, two to two and one -half inch DBH, eight to ten feet height, three foot spread, container grown. (2) Decorative trees, multi- trunk, three to four one inch trunks atDBH. six to eight feet height, three foot spread, container grown. (3) Palm trees, four and one -half (4 1/2) feet of clear trunk between the ground level and the lowest frond Section 45 -15 Trimming A permit is not required for trimming or pruning. No person shall trim or prune a protected tree in such a way as to cause damage to the tree. (1) Any person, company, partnership, corporation, or service that administers tree maintenance practices within the city for protected trees shall adhere to the National Tree Care Industry Association Standards ANSI A300 which is hereby adopted by reference into this code. (2) All protected trees within the city, other than those delineated as nuisance trees, shall be trimmed in accordance with the provisions of the National Arborist Association. Section 45 -16 City Authority A. Upon the discovery of any destructive or communicable disease or other pestilence which endangers the growth or health of trees, or threatens to spread disease or insect infestation, the city shall have the authority to cause written notice to be served upon the owner of the property upon which such diseased or infested tree is situated, and the notice shall require such property owner to eradicate, remove or otherwise control such condition within reasonable time to be specified in such notice. B. Failure to eradicate, remove or otherwise control such condition within the required time as specified in such notice the city may take such action as necessary to by the private premise into compliance C. The Building Official consult with the City Manager and shall take such action as has been authorized to render the tree into compliance with such notice, including the letting of contracts, pursuant to City purchasing requirements, to eradicate, remove or otherwise control such condition ; provided, however, that any such work by the City shall be subject to the availability of funds duly appropriated by the City Commission for such purpose. The owner shall be obligated to reimburse the City for all costs and expenses incurred by the City in order to secure the property or render it safe, plus interest thereon at the rate of 18% per annum from the date the City incurs such costs and expenses through the date of payment thereof. All such costs and expenses, together with interest and the costs of collection as hereinafter provided, shall be immediately due and payable to the City, shall be the personal obligation of the property owner and shall become a continuing lien upon the real property which is the subject of such proceeding. Any subsequent or new owner of such real property shall take title subject to such obligations to the City. An owner may not escape liability for such payment by abandonment of the real property. If such obligation to the City remains unpaid for a period of 60 days from the date the City incurred such costs and expenses, then the City may take any action deemed necessary in order to collect the amount owed to the City, including but not limited to retaining the services of a collection agency or attorney, initiating legal proceedings for the collection thereof, recording a notice of lien as hereinafter provided and /or foreclosing the same in the same fashion as mortgage liens are foreclosed. To give the public notice of the sums due to the City, the City Finance Manager may (but shall not be obligated to) record a notice of lien in the public records of Orange County, Florida, stating the description of the real property which is the subject of the action, the name of the owner of the real property and the amount then due and owing to the City D. In the event that the City is required to enforce this section as provided above, then the City shall be entitled to recover from the owner all costs and expenses incurred, including but not limited to its reasonable attorneys' fees, paralegal fees and other costs and expenses, whether incurred prior to, during or subsequent to court proceedings or on appeal. E. Liens for such City- contracted work shall be coequal with all state, county and municipal taxes and shall be superior in dignity to all other liens, titles and claims until paid. F. Nothing in this section shall be construed to require City work to be done or to imply a duty by the City to fix conditions which are the legal responsibility of the owner(s) of the property. This section is supplementary to City and Code Enforcement Board authority to order the property owner to remedy nuisance conditions and is not intended to mandate that any financial obligations be incurred by the City. Section 45 -17 Penalty for violation If a tree not authorized for removal is removed, altered or damaged such that its susceptibility to disease or other detrimental environmental factors is significantly increased which may result in premature death, the person causing such removal, alteration, damage or premature death as well as the property owner shall pay to the city a fine of $25.00 per diameter inch (DBH) of each such tree. In addition, where violations of this article have occurred, remedial action shall be taken to restore the property consistent with a restoration plan approved by the building official. The restoration plan may require tree replacement at not more than a 4:1 ratio and require mitigation of any other damage to the property, as well as tree replacements. SPACE BELOW INTENTIONAL BLANK Copy Advertisement (that ran in the print media) Date Published and Media Name F2 Orlando Sentine THURSDAY, NOVEM 25, 2010 Advertisement or Article CITY OF OCOEE - PUBLIC HEARING A mission will be heed Tuesday, December 7, 2010, maylbephe heard, in the Commis - ter as all at 150 rs of City H s ion Chambers North Lakeshore Drive, Ocoee, Flori- � do, to connsider the following: AN ORDINANCE OF THE CITY OF 000EE FLORI- R C00E OFPORDINANCES OF THE OF Of RELATING TO TREES ON PRIVATE PREMISES FOR CODIFICATION pPROVIDING AN EFFECTIVE DATE - If a person decides to appeal any deci- sion made by the above City Commis - sion ered at such respect earing, they will need a record of the proceedings, and for such purpose ,they may need to ensure that ings is made, which ncludes the which the appeal is to be bas upon ed. All interested parties . are invited to at- tend abov I n be he the Amerl needing t 0 special accommodation or , cans an Interpreter 40 participate in this proceeding should contact the City Clerk's prior to the date 3 of hear hearing. 4B Beth Eikenberry • City Clerk COR1100805 11725/2010