No preview available
 /
     
CE 342 19th Street Case #21-087IF Or IP a s M c y L_. 4 / W I. 7' f" IIV y r IV M .; b I -.. i,` ... d. IV/ pl 4 F a of \ a wFdI l 'ic VI cl I. v r VI I IV 'INJ, 4 r ittfolt' ' ej r y F VZ AD te4,' /r. q liir§P1 3'/ l `( F. r .f i yyaYs' , 7r v 1=—/.>l4, V C i e . r_ :• 14 33 i ,.T' T ' rte i y IfII F OPS• \ r J 7r >. r INA It 1 If p If IV t' _= v4 lyz. 1 ll l-/ '''' .. 1I;"—..? i%„.. 1 .,Y, -•_ r - VIM, Vl 1 A If PIIIIIPI I,. lis . V. I,yy. }7s r' . PV" arI r•e } ," l +i•.. u r , n' y/ IfAOv ' 'aarno, iY Vt r. r Y . ,' / /iI : J. - r _ Y V IV VIC n' iA Ail VI, IV s ItoI, t' .J. ,:% - ^.'-`la.'-Y:"cr37c..' _ ••'C— !4 ``l- *ad R.' Ito IFI off off,. ; i , y , 0 , Y , • ,. I f Y[. w a • tr. rofIt Ifoot; soI 00Ae X34 : 4O T ! r I to so v of I o ownt It SqA w , r f, , y Yl4t r! tir yam: it+ l, t.: sq daj . + i + aItfit 1 r• F Y s. t , l Y., J : 1 t: i. t ,. i of ' Itt lit so It I tiIts iow mot 4 1, 41111W It %. 1 iif P . too I , t , [ or c 0 or for ko, tot'. tIts so for I 4F 1. 1N dP>/, foo it t AJ //. r 1s Lijh ' x \ t iG cy y ' i tr JI. Alt. t> r E x i i r ° 1. ns I" i `. / 4, i111 i. t u d IL J las.= J, t I It t " Mr r•. Y , 1 , OR lot i ,. . J.. I I- w' t I i. Y b+- jt mss'._ trot ! -; a ., tn1 ''} i.. St i , z '• Y e so of to i, f, ..,,'. r e, p. ! I ,. • i. aK i' l hf .' t / t •`, 1 + - 91,,•' . , wt* 43 %- i.< J. Y= ani a . o l' a''.'/ It, IFAI to p r. ! fT7 , v "'• 1 YT K !,> fy. 7/ r1t 1I, A - to Ytl1'" OF ' to a . ykY TMIN r Irk 1 • K • , 11.1 y L Itz Ise. Ifj Pr a Pi+r3• _ i'I` t{/' -r ;E ,F .;F `'-L •,`cf;< - i IF LIF r 17 IllILI1 If ILI 0. mL I LL- ILL z _ a L-L_ Imoz OLLW_.: / t _ 40. P - - ILI Ilk ILI- LIP aw - - ice _ • : rry - r ILL - LO If ILI ILI- LAP ILILIP, ILI J _ ILL ILI 144 A; ILIAILL ILL IL- LIL Lf. 44 LL, F _ LP i x ILL s add f II rk rF LI L-LILL 7 * Nr,- r-000 Or ILL. i T l AM ILI_ N, _ _. K.S ••. i;' ``i• TL f -`- ' y -# fes _ } lH _ h ' 3 LI 1fII P .t . .,. m/ fi y ILI i*`• . I l_ • O w ,/. Art 14 ;, 00 ou li11 l WAMW YI Y !AI I d' oof Ayr AyoP s 1 / AWOk AL rh / 1100'el dd Of 41 do 4 I' i - AN it # ip X FC 4 I t r 910 I r /-.(y,1 r, r i "7 r' ti ts;4 ti w ' - QWF. f2 a J F QLLC f u 1 CITY OF ATLANTIC BEACH A =f 800 SEMINOLE ROAD4s)ATLANTIC BEACH, FL 32233 PHONE (904) 247-5800 j''-/- 011 ? 4/20/2021 BOURDON THOMAS PATRICK 342 19TH STREET ATLANTIC BEACH, FL 32233 Real Estate Number: 172020 1242 Case Number: 21-087 Location of Violation: 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida Dear Property Owner: Please be advised, the City of Atlantic Beach Code of Ordinances includes rules and regulations governing construction activities and also maintenance standards for property within the City. These standards are set forth in the International Property Maintenance Code and the Florida Building Code and were adopted as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. A code enforcement inspection at 342 19TH ST was conducted on 4/20/2021. The City of Atlantic Beach Code Enforcement has found your property to be in violation of the City of Atlantic Beach Code of Ordinances: VIOLATION CODE: Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1) Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2) times the normal established application fee specified in section 23-26. In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2) Regulated trees removed in violation of this chapter shall be assessed at two (2)times the normal established rate of mitigation specified in section 23-33. Sec 23-46. - Violations. Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. NATURE OF VIOLATION: A stop work order was posted on the property on August 3, 2020 for removal of trees on the property prior to issuance of a tree removal permit. A tree removal application was received on 8/19/2020. To date, no approved mitigation plan has been implemented. This letter requests that the noted violation(s) be corrected by obtaining and implementing an approved mitigation plan within ten (10) days of the receipt of this notice. Thank you for your cooperation in this matter. Failure to correct the violation by the required date may result in this case being referred to the Code Enforcement Special Magistrate resulting in fines up to two hundred fifty dollars ($250.00) per day. Upon completion of the action required, it is your responsibility to contact me and arrange for an inspection to verify compliance. Please contact Atlantic Beach Code Enforcement at (904) 247-5855 or airizarry@coab.us if you have any questions or need additional information. I, x- at1 e IDgI-efarNi hereby swear and affirm that the above statement is true and accurgt . rely, Angela Irizarry CODE ENFORCEMENT i ` s CITY OF ATLANTIC BEACH 800 SEMINOLE ROAD Z-1,.:NJ j ATLANTIC BEACH,FL 32233 PHONE (904)247-5800 o , '- CERTIFIED RETURN RECEIPT tri7017 0660 0000 3856 7280 5/10/2021 BOURDON THOMAS PATRICK 342 19TH STREET ATLANTIC BEACH, FL 32233 Real Estate Number: 172020 1242 Case Number: 21-087 Location of Violation: 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida Dear Property Owner: Please be advised, the City of Atlantic Beach Code of Ordinances includes rules and regulations governing construction activities and also maintenance standards for property within the City. These standards are set forth in the International Property Maintenance Code and the Florida Building Code and were adopted as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. A code enforcement inspection at 342 19TH ST was conducted on 4/20/2021. The City of Atlantic Beach Code Enforcement has found your property to be in violation of the City of Atlantic Beach Code of Ordinances: VIOLATION CODE: Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit,the fee for which shall be two (2)times the normal established application fee specified in section 23-26. In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2)Regulated trees removed in violation of this chapter shall be assessed at two (2)times the normal established rate of mitigation specified in section 23-33. Sec 23-46. -Violations. Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. NATURE OF VIOLATION: A stop work order was posted on the property on August 3, 2020 for removal of trees on the property prior to issuance of a tree removal permit. A tree removal application was received on 8/19/2020. To date,no approved mitigation plan has been implemented. This letter requests that the noted violation(s) be corrected by obtaining and implementing an approved mitigation plan within ten (10) days of the receipt of this notice. Thank you for your cooperation in this matter. Failure to correct the violation by the required date may result in this case being referred to the Code Enforcement Special Magistrate resulting in fines up to two hundred fifty dollars ($250.00) per day. Upon completion of the action required, it is your responsibility to contact me and arrange for an inspection to verify compliance. Please contact Atlantic Beach Code Enforcement at (904) 247-5855 or airizarry@coab.us if you have any questions or need additional information. 1-i2I, Q r hereby swear and affirm that the above statement is true and accur e. cerely, Angel izarry CODE ENFORCEMENT ENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY Complete items 1,2,and d. A. Signature Print yekr name and address or-the reverse X l ent so that we can return the card to you. Addresse Attach this card to the back of the mailpiece, B. Received by(Printed Name) C. Date of Deliver or on the front if space permits. C—( ' ' -L-Z_9 S-- - ZG 1 1. Article Addressed to: D. Is delivery address different from item 1? El Yes If YES,enter delivery address below: No DGAi-13 c C a1_0-7 II I I 11 III 11111111 1IIII I I II I I II I I 3. Service Type Adult S gn turee Restricted Delivery 00 Registered0 PriorilMail RestrictExpress 9590 9402 4495 8248 3545 96 Certified Mail® Return0CertifiedMailRestrictedDelivery Return Receipt for Collect on Delivery Merchandise 2. Article Number(Transfer from service label) 0 Collect on Delivery Restricted Delivery 0 Signature Confirmation, 0 Signature Confirmation 7 017 0660 0000 3856 7280 Restricted Delivery Restricted Delivery DS Form 3811_July 2015 PSN 7530-02-000-9053 Domestic Return Receicr USPS TRACKING# II I I 111 First-Class Mail ISI ( I i II 1: t7C)I Postage&Fees Paid I I i l. IUSPS Permit No.G-10 9590 9402 4495 8248 3545 96 United States Sender: Please print your name,address,and ZIP+4°in this box* Postal Service RECEIVED CITY OF ATLANTIC BEACH 800 SEMINOLE ROAD MAY 17 20?.1 ATLA TIC BEACH,FLORIDA 32233 040'. I t En-Q.:6cA Per•i r.i lllr f}!!'r}}I Iilrrrrr}rrlr,r Ir,rrulrllrr lrrrr}r!!r! 0 yLyrJrl CODE ENFORCEMENT e N q , `' ill CITY OF ATLANTIC BEACH, FLORIDA4-_, apit) r) NOTICE OF HEARING WO 6/3/2021 Case Number: 21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7013 1710 0002 1691 3705 ATLANTIC BEACH, FL 32233 Property Address: 342 19TH STREET ATLANTIC BEACH, FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on July 8,2021 at 2:00 pm at Atlantic Beach City Hall, Commission Chamber, 800 Seminole Road,to answer and be heard on the following alleged violations on the property known as 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida. The City of Atlantic Beach adopted the International Property Maintenance Code and the Florida Building Code as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. International Property Maintenance Code/City Code of Ordinances 1. Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2) times the normal established application fee specified in section 23-26. In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2) Regulated trees removed in violation of this chapter shall be assessed at two (2) times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. STATEMENT OF CODE ENFORCEMENT OFFICER: A stop work order was posted on the property on August 3,2020 for removal of trees on the property prior to issuance of a tree removal permit. A tree removal application was received on 8/19/2020. To date, no approved mitigation plan has been implemented. If the violation is corrected and then recurs or if the violation was not corrected by the time specified for correction by the Code Enforcement Officer in the Notice of Violation that you received,the case may be Page 1 of 2 presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. You have the right to obtain an attorney at your own expense and to present witnesses on your behalf. If you desire to have witnesses subpoenaed or if you have questions regarding the procedure, please contact the City Clerk's office within five days of the receipt of this notice at (904) 247-5821. Please note the presence of a court reporter for the purpose of insuring a verbatim record in the event an appeal should be secured at your expense. I, ‘-VOR vQ -, \_! f N hereby swear and affirm that the above statement e and curate. 62_ A eaI Code Enforcement Office , ' of Atlantic Beach ATTEST: e;<cln Kim Flower, Records Clerk U.S. Postal Service T,., CERTIFIED MAIL,. RECEIPT art (Domestic Mail Only;No Insurance Coverage Provided)Lc-2 m For delivery information visit our website at www.usps.COm® ra a- J3 Postage $ rR Certified Fee IU Postmark D Return Receipt Fee Here O (Endorsement Required) O Restricted Delivery Fee O ( Endorsement Required) rR N Total Postage&Fees r9 111 Sent ToTailsictxi.ack Bou 0on ..1 —0 r or PO Box No. Street,Apt.N. 3!....1„2, i Q st re of Cary,State,ZIP+4 A 3, 33 PS Form 3800,August 2006 See Reverse for Instructions Page 2 of 2 ENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY Complete items 1,2,and 3. A. Signature Print your name and address on the reverse X cli (7 0 Agent so that we can return the card to you.0 Addressee I Attach this card to the back of the mailpiece, B. Received by(Printed Name) C. Date of Deliver) or on the front if space permits.C— I rl f Z 4 J Z Z I. Article Addressed to: ..D. Is delivery address different from item 1? 0 Yes hovna C f1 fret £aurdpil If YES,enter delivery address below: 0 No CE L1 - lo? 7 11111 III Ell HI nil. I III I III 3. Service Type 0 Adult Signature Priority Mail Express 0 Registered MaiIT^ 0 Adult Signature Restricted Delivery 0 Registered Mail Restrict( Certified Mail® Delivery 9590 9402 4495 8248 3547 70 0 Certified Mail Restricted Delivery 0 Return Receipt for Collect on Delivery Merchandise Article Number(Transfer from service label) Collect on Delivery Restricted Delivery 0 Signature Confirmation.. ail 0 Signature Confirmation 7013 1?10 n 0 n n 1691 3705 all Restricted Delivery Restricted Delivery DI S Form 3811.July 2015 PSN 7530-02-000-9053 Domestic Return Receipt Irizarry,Angela From: Irizarry,Angela Sent: Tuesday, July 6, 2021 11:31 AM To: Karl J. Sanders'; Askew, Amanda Subject: RE: Tree Removal/Permit Issue at 342 19th Street (Bourdon Property) Good Morning, I just tried to call you back and left you a voicemail. According to our records, Amanda offered the two options for moving forward on June 9. As of today, we still have not received an application for either option. I will be happy to forward your written request to the magistrate for an extension but we need to make sure things keep moving forward. This original stop work order was posted back in August of 2020 which prompted Mr. Bourdon to submit an after the fact permit application after which communication ceased. Notices were sent in April, May and then the hearing notice in June. From: Karl J. Sanders [mailto:kjsanders@kjslawpa.com] Sent:Tuesday,July 6, 2021 11:19 AM To:Askew, Amanda <aaskew@coab.us>; Irizarry,Angela <alrizarry@coab.us> Subject: Re: Tree Removal/Permit Issue at 342 19th Street(Bourdon Property) Hey, Angela. I tried to call you last week, but your voicemail was full . . . I just left a voicemail at your office a few minutes ago. Amanda and I spoke again last Monday, June 28, regarding the status of this matter. I advised her that Mr. Bourdon has retained a landscape architect to review the tree removal/mitigation issues, and he is currently reviewing the City's mitigation calculations and compiling a list/size of the trees that Mr. Bourdon preserved to determine whether he is entitled to any credits for same. We anticipate that he will have completed his research/review within the next 7 — 10 days, at which point we will resume/finalize discussions with Amanda's team. In light of the fact that we are actively trying to resolve this issue (i.e., the tree mitigation calculations), we were under the impression that the Code Enforcement hearing would be continued/deferred to the next scheduled hearing date so that we could finalize these discussions and, hopefully, avoid the need for any hearing. Additionally, I have a previously scheduled work commitment this week Wednesday evening through Friday), and will not even be in town this week for any hearing. Could you please confirm that this hearing will be continued/deferred, or otherwise let me know what additional information/documentation that you need from me to confirm same? Thanks so much, and please feel free to give me a call if you'd like to discuss further. Best regards, Karl Karl J. Sanders, Esq. KiS kjsanders©kjslawpa.com 904.868.7929 I Office LA v, 561.386.1216 I Mobile From: Amanda Askew <daskew@coab.us> Date:Tuesday, July 6, 2021 at 10:46 AM To: "Irizarry,Angela" <alrizarry@coab.us> Cc: "Karl J. Sanders" <kjsanders@kislawpa.com> Subject: FW: Tree Removal/Permit Issue at 342 19th Street (Bourdon Property) Good morning Angela, You inquired about the status of this case since it is scheduled to go before the special magistrate on 7/8. I spoke with Mr. Sanders (attorney for property owner) on 6/9 about the tree permit removal process. We have not received any documents/request for this property since the email was sent below. From:Askew, Amanda Sent: Wednesday,June 9, 2021 4:07 PM To: 'Karl J. Sanders' Cc: Genest, Abrielle (agenest@coab.us); Irizarry,Angela Subject: RE:Tree Removal/Permit Issue at 342 19th Street(Bourdon Property) Attached you will find info. about the two permits (roof and remodel) for 342 19th Street. To appeal staff's interpretation of Chapter 23 (i.e., size, type and number of trees) you would follow section 23-52(g)(2). We have not officially issued a draft permit. In order to appeal, the applicant has to do so within 5 business days of the written draft permit approval. We would issue a draft permit approval with conditions (conditions would be the replanting and/or payment shown on the tree removal calculations form). Let us know if you want to go this route and we'll issue you an official permit with conditions so that you can appeal. To seek a variance or reduction in the total trees to be mitigated you would use the waiver process. It is much like a variance process but instead of going to the Community Development Board it goes directly to City Commission. I have included the minutes and a PowerPoint from the last tree waiver the city conducted for you to review. 2 From:Askew, Amanda Sent: Wednesday,June 9, 2021 10:34 AM To: 'Karl J. Sanders' Cc: Irizarry,Angela Subject: RE:Tree Removal/Permit Issue at 342 19th Street(Bourdon Property) How about 3pm today? From: Karl J. Sanders [mailto:kisanders@kislawpa.com] Sent:Tuesday,June 8,2021 5:26 PM To: Askew, Amanda Cc: Irizarry,Angela Subject: Re: Tree Removal/Permit Issue at 342 19th Street (Bourdon Property) Hey, Amanda. Thanks so much for the reply . . . my schedule is pretty flexible tomorrow afternoon . I'm available from noon-4:00 (have to leave office for another meeting at 4:30). Let me know what works best for your during that timeframe and we'll get it scheduled/confirmed . . . I can either do a zoom call or "old school" conference call . . . whichever you prefer. Also, I received an email from my client yesterday regarding another Code Enforcement Notice that he received (see attached). This notice states that the matter has been set for hearing on July 8? I'm assuming that Code Enforcement did not receive word that you and I have been communicating/attempting to schedule a time to discuss this matter (and, hopefully, resolve same). Ms. Irizarry — I'd like to see if the noticed hearing will be canceled or otherwise continued/held in abeyance until such time as Amanda and I have had a chance to try and work through these issues. Of course, if we are unable to come to a mutually agreeable resolution of the issues, the hearing could be regarding-noticed for a future date. But, again, I'm hopeful that won't be necessary. Please let me know your thoughts on this. Amanda — Just shoot me an email with a time that works best for you between noon and 4:00 tomorrow (and preference for either Zoom or Conference Call), and I'll send you an invite to confirm same. Thanks again, and talk soon. Best regards, Karl Karl J. Sanders, Esq. KS kjsanders@>kjslawpa.com 904.868.7929 I Office LAW,.x 561.386.1216 I Mobile 3 From: Amanda Askew <aaskew@coab.us> Date: Monday, June 7, 2021 at 9:38 AM To: "Karl J. Sanders" <kjsanders@kislawpa.corn> Cc: "Irizarry,Angela" <alrizarry@coab.us> Subject: RE: Tree Removal/Permit Issue at 342 19th Street (Bourdon Property) Hey Karl, I'm looping in the code enforcement officer, so she knows you are communicating with us. I'll be happy to meet/zoom/conf call with you. I'm available: Tuesday (6/8) 9am or 10am Wednesday open all day Thursday 2pm or 3pm From: Karl J. Sanders [mailto:kjsanders@kjslawpa.com] Sent: Friday,June 4, 2021 4:59 PM To: Askew, Amanda Subject: Re:Tree Removal/Permit Issue at 342 19th Street (Bourdon Property) Hey, Amanda. I left you a vm message just a little while ago and wanted to follow-up with a quick email. I was hoping that we could schedule a date/time next week to discuss the status of this matter and potential options for resolving same. Please let me know what date(s)/time(s) might work best for you. Looking forward to it! Talk soon. Best regards, Karl Karl J. Sanders, Esq. kjsanders@kjslawpa.com 904.868.7929 I Office LAWPA 561.386.1216 I Mobile From: "Karl J. Sanders" <kisanders@kislawpa.com> Date:Thursday, May 20, 2021 at 6:14 PM To: Amanda Askew<aaskew@coab.us> Subject: Tree Removal/Permit Issue at 342 19th Street (Bourdon Property) Hey Amanda. I just left you a voicemail message at the office, and wanted to follow-up with a quick email. Actually, I thought I had sent an email to you when we last spoke two weeks ago on May 6, but I just now saw that it's in my "Drafts" folder for some reason (I'm guessing I must have had a computer/server issue and it rebooted before sending). 4 At any rate, I'd like to see if we could schedule a time to discuss the status of the tree removal/permit issue that my client (Tom Bourdon) has been trying to resolve with City Staff since August of last year. As we discussed a couple of weeks ago, Mr. Bourdon received a letter from Code Enforcement about this issue last month, and my understanding was that those efforts would be put on hold until you had a chance to review the file again and re-familiarize yourself with the issues so the two of us could discuss a potential resolution of same. That being said, Mr. Bourdon notified me that he received a certified-mail letter from Code Enforcement this week (see attached), so I wanted to reach out again and ensure that this matter (Code Enforcement Case No. 21-087) was being held in abeyance, pending our efforts to see if we could work out a mutually agreeable solution to those issues. For your ease of reference, I've attached a copy of both the tree mitigation proposal ($33,448.00) that the City previously sent to Mr. Bourdon, as well as the above-referenced Code Enforcement notice dated 05/10/21. Please let me know if my understanding of the status of this matter coincides with yours (and if Code Enforcement has been advised of same). Assuming that we are in agreement on the status, let me know how your calendar looks for the next couple of weeks so we can try to coordinate/confirm a date to meet/discuss in detail. Thanks again for your attention to this matter, and I look forward to hearing from you again soon. Best regards, Karl Karl J. Sanders, Esq. s kjsanders@kjslawpa.com 1 904.868.7929 I Office LAW.A 561.386.1216 I Mobile Want to receive City of Atlantic Beach news by email?Just say so in an email to info@coab.us. Follow the City of Atlantic Beach on Facebook https://www.facebook.com/CityOfAtlanticBeach. Florida has a very broad Public Records Law. Most written communications to or from State and Local Officials and agencies regarding State or Local business are public records available to the public and media upon request. Your email communications, including your email address, may therefore be subject to public disclosure. Want to receive City of Atlantic Beach news by email?Just say so in an email to info@coab.us. Follow the City of Atlantic Beach on Facebook https://www.facebook.com/CityOfAtlanticBeach. Florida has a very broad Public Records Law. Most written communications to or from State and Local Officials and agencies regarding State or Local business are public records available to the public and media upon request.Your email communications, including your email address, may therefore be subject to public disclosure. 5 CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7017 1000 0000 7000 3068 vs. Property Address: 342 19th St. Thomas Patrick Bourdon Atlantic Beach, FL 32233 342 19th St. Atlantic Beach, FL 32233 Respondent. CASE NUMBER: 21-087 REAL ESTATE NUMBER: 172020 1242 LEGAL DESCRIPTION: 36-64 09-28-29E SELVA MARINA UNIT 12-A LO 5,ATLANTIC BEACH, FL ORDER ON CASE No. 21-087 THIS CAUSE came for public hearing before the Code Enforcement Special Magistrate on July 8, 2021, and the Special Magistrate having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, issues findings of fact, conclusions of law, and orders as follows: FINDINGS OF FACT 1. Respondent owns the property located at 342 19th St., Atlantic Beach, Florida. 2. Notice of the hearing was sent by Certified Mail and signed for by the Respondent. 3. The Respondent was represented by Mr. Zach Miller. The Respondent was cited for violation of Sec. 23-51 (d) and Sec 23-46 for failing to make proper application for tree or vegetation removal permit and then failing to immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties as specified in Section 23-33. 4. The City of Atlantic Beach issued a stop work Order on August 3, 2020. A tree removal application was received on August 19, 2020. However, to date no mitigation plan has been implemented. 5. Counsel for the Respondent stated that they are researching the issue of contesting the allegation of"inches" of the tree or money to contest the allegations. 6. The City of Atlantic Beach requested that the Respondent stay active in this matter and within 7-10 days either submit mitigation or provide documentation as to whether the Respondent is waived from the Code Sections. 7. Counsel for the Respondent stated they are reviewing whether F.S. 163 chapters 1450 or 4530 are applicable. They requested 30 days to obtain a certified landscape architect report to determine if the trees were "damaged" or "bad" trees pursuant to the statute. 8. The City of Atlantic Beach requested if the report is not provided and the matter rectified, then the matter should be placed on the agenda for the September 2, 2021 meeting. CONCLUSIONS OF LAW 9. The Respondent was provided proper notice of the violation and hearing and was represented by Counsel. Respondent stated they will be actively researching the mitigation ordinance and the requisite Florida Statute to determine proper compliance. The City of Atlantic Beach agreed to require the report within thirty (30) days and if not rectified, be placed on the September 2, 2021 agenda. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: THAT the Respondent shall forthwith seek to obtain a certified landscape architect report regarding the status of the trees and rectify the mitigation. If the matter is not rectified, the issue will be placed on the September 2, 2021 agenda for determination of compliance. DONE AND ORDERED THIS 21ST DAY OF JULY, 2021. CITY OF ATLANTIC BEACH, FLORIDA CODE ENF RCEMENT SPECIAL MAGISTRATE ATTEST: 4</i4/16,AW,+13 Kimberl . Flower, Records Clerk Suzantp' 7 Green, Special Magistrate Executed this 21st day of July 2021. PLEASE NOTE: Florida Statutes § 162.11 requires that any appeal of this order must be filed in the circuit court for Duval County within 30 days of this order's execution. 7017 1000 0000 7000 3068 N h N o`" m m6' T Q D D (, aD , F, y O O \/O ( ^ i 9 (O c a 2 p(h m ; m S. a My; 3 m a,5 a 4 4 g x9mo" N 2 d m.y ,,'' X (o g p D a o1 a ?„,,W.'3=7,1 s ' -n g l g a74. .r g 2 y cn, m DCD m ::.,:- C O Q a f 11 ENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY Complete items 1,2,and 3. A. Signature Print your name and address on the reverse x C ? 0 Agent so that we can return the card to you. 0 Addresse Attach this card to the back of the mailpiece, B. Received by(Printed Name) C. Date of Deliver or on the front if space permits.C.-- 1 Zt Z y L Y-111- 1. Article Addressed to: D. Is delivery address different from item 1? 0 Yes J ` ) If YES,enter delivery address below: EI No lel OyY)0S P {v'ICK U 1111111 III 11111111111111111 III I I I 1111 Ace Type dult SignSignature Restricted D0 Priority Mail elivery 00 Registered Man" Registered Mail Restrict t 9590 9402 4495 8248 3546 95 0 Certified Mail® Delivery Certified Mail Restricted Delivery 0 Return Receipt for 0 Collect on Delivery Merchandise 2. Article Number(Transfer from service label) 0 Collect on Delivery Restricted Delivery 0 Signature Confirmation, wed Mail 0 Signature Confirmation 7 017 1000 0000 7000 3068 wed Mail Restricted Delivery Restricted Delivery r seoo) ac Fnrm 3811 .Inly 2111 t PRN 7 n_ro_nnn-enss Domestic Return Receio USPS TRACKING# First-Class Mail 011ill 10. 11:111I Postage&Fees Paid l! , II II SPS Permit No.G-10 9590 9402 4495 8248 3546 95 United Sates Sender: Please print your name,address, and ZIP+4®in this box• Postal S rvice Crri OF ATLANTIC BEACH C r—d00 SEMIMOLE ROAD ATLANTIC BEACH,FLORIDA 32233CMLNDN O N 1J!!!iiiiiiiiiip iji!!!(Jiiiiilliiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii 1 Irizarry,Angela From:Karl J. Sanders <kjsanders@kjslawpa.com> Sent:Friday, July 23, 2021 4:33 PM To:Askew, Amanda Cc:Irizarry,Angela Subject:Status Update re Tree Removal/Mitigation Issue for 342 19th St (Code Enforcement Case No. 21-087) Hey, Amanda. Just wanted to send you a quick status update on this matter. As we last discussed a couple of weeks ago, my client and I have been working with a local landscape architect in connection with evaluating/identifying (1) the trees that were removed due to their status as posing a danger to persons or property, per Section 163.045, Fla. Stat., (2) the size/type of trees that were preserved, and (3) the resulting mitigation assessment (including associated credits for both the preserved trees and those which were identified as posing a danger). At this point, we have identified 43 trees that were preserved on-site and appear to meet the City’s minimum size for preservation credits. Our landscape architect is finalizing his review and analysis, and I expect to have a detailed report/proposal from him in short order. Once I have that information, I will promptly forward it to you for the City’s review and consideration, and we can continue/finalize our discussions regarding a potential resolution of these issues and what additional steps, if any, need to be taken in order to close out this file. As always, I appreciate your time and assistance in trying to work through these issues, and I look forward to speaking with you again soon. Have a great weekend! Best regards, Karl Karl J. Sanders, Esq. kjsanders@kjslawpa.com 904.868.7929 561.386.1216 Office Mobile CODE ENFORCEMENT jteIA 7610 CITY OF ATLANTIC BEACH, FLORIDA NOTICE OF HEARING 8/2/2021 Case Number: 21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7017 0660 0000 3856 5224 ATLANTIC BEACH, FL 32233 Property Address: 342 19TH STREET ATLANTIC BEACH, FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on September 2, 2021 at 2:00 pm at Atlantic Beach City Hall, Commission Chamber, 800 Seminole Road, to answer and be heard on the following alleged violations on the property known as 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida. The City of Atlantic Beach adopted the International Property Maintenance Code and the Florida Building Code as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. International Property Maintenance Code/City Code of Ordinances 1. Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2) times the normal established application fee specified in section 23-26. In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2) Regulated trees removed in violation of this chapter shall be assessed at two (2) times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. STATEMENT OF CODE ENFORCEMENT OFFICER: A stop work order was posted on the property on August 3, 2020 for removal of trees on the property prior to issuance of a tree removal permit. A tree removal application was received on 8/19/2020 but no approved mitigation plan has been implemented. At the July hearing, your counsel indicated that you were working with a landscape architect to review this issue. The Magistrate ordered that a report be submitted to the City within 30 days. This case will be heard before the Magistrate at the September hearing to report on the status of compliance. Page 1 of 2 If the violation is corrected and then recurs or if the violation was not corrected by the time specified for correction by the Code Enforcement Officer in the Notice of Violation that you received,the case may be presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. You have the right to obtain an attorney at your own expense and to present witnesses on your behalf. If you desire to have witnesses subpoenaed or if you have questions regarding the procedure, please contact the City Clerk's office within five days of the receipt of this notice at (904) 247-5821. Please note the presence of a court reporter for the purpose of insuring a verbatim record in the event an appeal should be secured at your expense. I, ( \ç ' -e 1 3 f` ` ( hereby swear and affirm that the above statement is lig e andAccurate. Angela I4g arry Code Enforcement Officer, City of Atlantic Beach ATTEST: 44J c) Kim Flower, Records Clerk 7017 0660 0000 3856 5224 O (A W nnm 9 p 0 C 3 § m°5$ > > O a Fmcn P + m mD9 0 oG maNm 2 g a o m — z SVS o P o r— g m n F m y r o y 3 2 n 0 0m Page 2 of 2 USPS Tracking® FAQs > Track Another Package + Tracking Number: 70170660000038565224 Remove X Your item was delivered to an individual at the address at 1:38 pm on August 5, 2021 in ATLANTIC BEACH, FL 32233. Delivered, Left with Individual cp August 5, 2021 at 1:38 pm 0_ ATLANTIC BEACH, FL 32233 2) Get Updates u Text & Email Updates u Tracking History August 5, 2021, 1:38 pm Delivered, Left with Individual ATLANTIC BEACH, FL 32233 Your item was delivered to an individual at the address at 1:38 pm on August 5, 2021 in ATLANTIC BEACH, FL 32233. August 4, 2021, 8:35 pm Departed USPS Regional Facility JACKSONVILLE FL DISTRIBUTION CENTER August 3, 2021, 7:41 pm Arrived at USPS Regional Facility JACKSONVILLE FL DISTRIBUTION CENTER Product Information u See Less /\ Can't find what you're looking for? Go to our FAQs section to find answers to your tracking questions. FAQs m CD Q a- a) 1 Irizarry,Angela From:Karl J. Sanders <kjsanders@kjslawpa.com> Sent:Wednesday, August 18, 2021 12:46 PM To:Irizarry,Angela Cc:Askew, Amanda Subject:Re: Status Update re Tree Removal/Mitigation Issue for 342 19th St (Code Enforcement Case No. 21-087) Hey, Angela. I’ve been out of town and “off the grid” for the past few weeks dealing with family stuff . . my father, who lived in Phoenix, was discharged to hospice care the last week of July and passed away 2 weeks ago. I just got back to Jax late Sunday night and have been playing catch up at the office this week. I reached out to our landscape architect this morning to schedule a call for a status update on his findings/report, and I expect that we will have a confirmed date/time to speak before the end of this week. I will circle back with you and Amanda with a status update after I’ve spoken with him. Thanks, and talk soon. Best regards, Karl Karl J. Sanders, Esq. kjsanders@kjslawpa.com 904.868.7929 561.386.1216 Office Mobile From:Angela Irizarry aIrizarry@coab.us> Date:Wednesday,August 18,2021 at 10:56 AM To:Karl Sanders kjsanders@kjslawpa.com> Subject:RE:Status Update re Tree Removal/Mitigation Issue for 342 19th St Code Enforcement Case No.21 087) Karl, Good morning.I wanted to check in with you on the status of the arborist report and let you know that we have not seen anything from your landscape architect yet.Can you tell me where you are on this? From:Karl J.Sanders mailto:kjsanders@kjslawpa.com] Sent:Friday,July 23,2021 4:33 PM To:Askew,Amanda aaskew@coab.us> Page 1 of 2 2 Cc:Irizarry,Angela aIrizarry@coab.us> Subject:Status Update re Tree Removal/Mitigation Issue for 342 19th St Code Enforcement Case No.21 087) Hey, Amanda. Just wanted to send you a quick status update on this matter. As we last discussed a couple of weeks ago, my client and I have been working with a local landscape architect in connection with evaluating/identifying (1) the trees that were removed due to their status as posing a danger to persons or property, per Section 163.045, Fla. Stat., (2) the size/type of trees that were preserved, and (3) the resulting mitigation assessment (including associated credits for both the preserved trees and those which were identified as posing a danger). At this point, we have identified 43 trees that were preserved on-site and appear to meet the City’s minimum size for preservation credits. Our landscape architect is finalizing his review and analysis, and I expect to have a detailed report/proposal from him in short order. Once I have that information, I will promptly forward it to you for the City’s review and consideration, and we can continue/finalize our discussions regarding a potential resolution of these issues and what additional steps, if any, need to be taken in order to close out this file. As always, I appreciate your time and assistance in trying to work through these issues, and I look forward to speaking with you again soon. Have a great weekend! Best regards, Karl Karl J. Sanders, Esq. kjsanders@kjslawpa.com 904.868.7929 561.386.1216 Office Mobile Want to receive City of Atlantic Beach news by email?Just say so in an email to info@coab.us.Follow the City of Atlantic Beach on Facebook https://www.facebook.com/CityOfAtlanticBeach.Florida has a very broad Public Records Law.Most written communications to or from State and Local Officials and agencies regarding State or Local business are public records available to the public and media upon request.Your email communications,including your email address,may therefore be subject to public disclosure. Page 2 of 2 Irizarry,Angela From: Karl J. Sanders <kjsanders@kjslawpa.com> Sent: Wednesday, September 1, 2021 5:30 PM To: I rizarry,Angela Cc:Askew, Amanda Subject: Re: Status Update re Tree Removal/Mitigation Issue for 342 19th St (Code Enforcement Case No. 21-087) Attachments: CE -- AB Tree Removal Calcs inventory site plan .pdf; CE -- RLA Tree Removal & Preservation Calcs inventory site plan .pdf Hey, Angela. As discussed, my client's landscape architect has completed his review/analysis of the removed trees and mitigation issues for Mr. Bourdon, and it appears that the City's initial mitigation calculations failed to account for the on-site tree preservation credit towards the assessed mitigation for the removed trees. Bottom line is that Mr. Bourdon preserved a total of 42 trees on-site that were 3" DBH or greater, resulting in a total of 433" inches of credit that is available to be used to offset the assessed mitigation number that the City calculated (i.e., 266") and thereby satisfying the City's proposed mitigation number. Per your request, I'm providing you with a summary of his findings now so that you will have that information available to share with the Special Magistrate and confirm that we have now secured and forwarded those findings to the City. Once Amanda returns back to the office (my understanding is that she's out of town this week at a work conference), I will circle back with her to discuss both the findings and next steps (if any). Lastly, as I have previously represented to both you and Angela, our agreement to make a good-faith effort to seek a mutually agreeable resolution of these issues does not mean that my client has admitted to the alleged code enforcement violation that is now pending before the Special Magistrate; rather, we expressly reserved our right to challenge the alleged violation, in the event that the parties were not able to come to an agreement on the proposed mitigation numbers. Again, once Angela returns and has an opportunity to review our findings, we will be able to resume those discussions and, hopefully, put this matter to rest. In the meantime, here's a summary of our landscape architect's findings. Additionally, as backup — and for your ease of reference — I've also attached pdf copies of both the City's initial calculations with site plan of removed trees and inventory) and our architect's findings (with site plan of preserved trees and inventory): City Tree Removal Calculations 1. 20 trees removed (total 226") 2. No credits for any trees preserved (per Sec. 23-33(d) of AB Tree Protection Code, "existing onsite trees that are 3 inches DBH or greater and which are neither protected nor transplanted may be utilized as credit towards the assessed mitigation . . . if preserved onsite) 3. City's Mitigation Assessment = 226" in new plantings or Tree Fund payment ($148/inch) of 33,448 Landscape Architect Calculations 1. 20 trees removed (total 226") 2. 15 trees presented danger to persons or property (total 176"), per Section 163.045, Fla. Stat., and therefore not subject to local permitting/mitigation regulations 3. 5 trees did NOT present danger to persons or property (total of 50"), and therefore are subject to local permitting/mitigation regulations 4. Landscape Architect's Mitigation Assessment = 50" in new plantings or Tree Fund payment 148/inch) of $7,400 Mitigation Credit for Preserved Trees 1. 42 trees preserved onsite that are 3 inches DBH or greater 2. Total DBH of the 42 preserved trees = 433" Mitigation Required for Removed Trees = NONE 1. Tree Preservation Credit - City's Tree Removal Calculations): 433" preserved minus 226" required = 207"surplus 2. Tree Preservation Credit - Landscape Architect's Tree Removal Calculations): 433" preserved minus 50" required = 383"surplus Thanks again, and just let me know if you have any questions. I'll be sure to keep you posted with updates on my discussions with Amanda and her staff next week. Talk soon. Best regards, Karl Karl J. Sanders, Esq. kjsanders@kjslawpa.com AAA/ 904.868.7929 I Office LL 1. 1 PA 561.386.1216 I Mobile From: Karl Sanders<kjsanders@kjslawpa.com> Date: Wednesday, August 18, 2021 at 12:45 PM To: Angela Irizarry <alrizarry@coab.us> Cc: Amanda Askew <aaskew@coab.us> Subject: Re: Status Update re Tree Removal/Mitigation Issue for 342 19th St (Code Enforcement Case No. 21- 087) Hey, Angela. I've been out of town and "off the grid" for the past few weeks dealing with family stuff . . my father, who lived in Phoenix, was discharged to hospice care the last week of July and passed away 2 weeks ago. I just got back to Jax late Sunday night and have been playing catch up at the office this week. I reached out to our landscape architect this morning to schedule a call for a status update on his findings/report, and I expect that we will have a confirmed date/time to speak before the end of this week. I will circle back with you and Amanda with a status update after I've spoken with him. 2 Thanks, and talk soon. Best regards, Karl Karl J. Sanders, Esq. kjsanders@kjslawpa.com 904.868.7929 I Office LAW, 561.386.1216 I Mobile From: Angela Irizarry<alrizarry@coab.us> Date: Wednesday, August 18, 2021 at 10:56 AM To: Karl Sanders <kjsanders@kjslawpa.com> Subject: RE: Status Update re Tree Removal/Mitigation Issue for 342 19th St (Code Enforcement Case No. 21- 087) Karl, Good morning. I wanted to check in with you on the status of the arborist report and let you know that we have not seen anything from your landscape architect yet. Can you tell me where you are on this? From: Karl J. Sanders [mailto:kjsanders@kjslawpa.com] Sent: Friday,July 23, 2021 4:33 PM To: Askew, Amanda <aaskew@coab.us> Cc: Irizarry,Angela <alrizarry@coab.us> Subject: Status Update re Tree Removal/Mitigation Issue for 342 19th St (Code Enforcement Case No. 21-087) Hey, Amanda. Just wanted to send you a quick status update on this matter. As we last discussed a couple of weeks ago, my client and I have been working with a local landscape architect in connection with evaluating/identifying (1) the trees that were removed due to their status as posing a danger to persons or property, per Section 163.045, Fla. Stat., (2) the size/type of trees that were preserved, and (3) the resulting mitigation assessment (including associated credits for both the preserved trees and those which were identified as posing a danger). At this point, we have identified 43 trees that were preserved on-site and appear to meet the City's minimum size for preservation credits. Our landscape architect is finalizing his review and analysis, and I expect to have a detailed report/proposal from him in short order. Once I have that information, I will promptly forward it to you for the City's review and consideration, and we can continue/finalize our discussions regarding a potential resolution of these issues and what additional steps, if any, need to be taken in order to close out this file. As always, I appreciate your time and assistance in trying to work through these issues, and I look forward to speaking with you again soon. Have a great weekend! 3 Best regards, Karl Karl J. Sanders, Esq. kjsanders@ikjslawpa.com 904.868.7929 I Office LAWP„ 561.386.1216 I Mobile Want to receive City of Atlantic Beach news by email?Just say so in an email to info@coab.us. Follow the City of Atlantic Beach on Facebook https://www.facebook.com/CityOfAtlanticBeach. Florida has a very broad Public Records Law. Most written communications to or from State and Local Officials and agencies regarding State or Local business are public records available to the public and media upon request.Your email communications, including your email address, may therefore be subject to public disclosure. 4 10tC erg- 2 it, mak1 OkcoVect 91% I a 0—w- EXHIBIT C: TREE MITIGATION WORKSHEET I City of Atlantic Beach J Community Development Department v 800 Seminole Road Atlantic Beach,FL 32233 Landscape Architect's 01119 (P) 904-247-5800 Calculations(Removed Trees) List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B ID DBH SPECIES COMMENTS X°= °[)"= Sec.163.045 removing preserving Preemption 1 10" Palm 2 24" Hickory 3 11" Tree 4 16" Tree 5 11" Palm 6 10" Palm 7 10" Palm 8 10" Palm 9 9" Palm 10 11" Palm 11 9" Tree 12 10" Palm 13 11" Palm 14 10" Palm 15 10" Palm 16 8" Palm 17 14" Tree 18 8" Tree 19 14" Tree 20 10" Palm Total50„ Total DBH based on the 5 removed trees that did not DBH present danger to persons/property(163.045,Fla.Stat.) 02 TREE REMOVAL-EXHIBIT C:Tree Mitigation Worksheet 03.01.2018 1u Tree #1: 11" Palm Tree #21: 13" Palm 41 I 5 42 36 Tree #2: 5" Palm3dTree #22: 13" Other 6 33 32 Tree #3: 23" Other Tree#23: 12" Palm 25 27 28 29 31 Tree #4: 9.5" Other Tree #24: 10" Other ao' 2 Tree #5: 10" Other Tree#25: 12" Palm 23 22 a3 30 Tree #6: 8" Other Tree #26: 11" Palm 9 21 aftll 27: 8" Other Tree#8: 9" Other Tree #28: 6" Other Tree#7: 8.5" Other Tree#9: 10" Other Tree #29: 9" Palm Tree #10: 7.5" Other Tree #30: 2" Other Concrete 16 Tree#11: 8" Other Tree #31: 3.5 " Other Tree #12: 11" Other Tree#32: 3.5" Other 15 Tree #13: 10" Other Tree #33: 12" Palm 14 Tree #14: 10" Palm Tree#34: 12" Palm Tree#15: 12.5" Palm Tree #35: 12" Palm Tree #16: 14" Other Tree #36: 13" Other Tree#17: 8" Other Tree #37: 11" Palm Tree #18: 6" Other Tree #38: 11.5" Palm Tree#19: 11" Palm Tree #39: 12 Palm" 13 Tree#20: 12.5" Palm Tree #40: 9.5" Palm Tree #41: 12.5" Palm Concrete Tree #42: 11" Palm 11 12 Tree #43: 11" Palm 1 4 6 2 5 PRESERVED TREES 8 342 19th St.,Atlantic Beach 3 9 10 0 C Og L`1 EXHIBIT C: TREE MITIGATION WORKSHEET icl' City of Atlantic Beach i Community Development Department ts, Vr 800 Seminole Road Atlantic Beach, FL 32233 PRESERVED TREE INVENTORY 0;w)%- (P) 904-247-5800 List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B ID DBH SPECIES X 1 0COMMENTS(for use by City Staff) removing preserving replacing 1 11" Palm 2 5" Palm 3 23" Oak 4 9.5" Sweetgum 5 10" Sweetgum 6 8" Sweetgum 7 8.5" Sweetgum 8 9" Sweetgum 9 10" Sweetgum iI107.5" Sweetgum 11 8" Sweetgum 12 11" Sweetgum 13 10" Sweetgum 14 10" Palm 15 12.5" Palm 16 14" Sweetgum 17 8" Sweetbay Magnolia 18 6" Sweetbay Magnolia 19 11" Palm s I r 20 12.5" Palm 21 13" Palm I i 22 13" Sweetgum 23 12" Palm 24 10" Sweetgum 25 12" Palm 02 TREE REMOVAL-EXHIBIT C:Tree Mitigation Worksheet 03.01.2018 U Y-."-1i`Jr; , EXHIBIT C: TREE MITIGATION WORKSHEET City of Atlantic Beachp1. ii.yj f! Community Development Department 800 Seminole Road Atlantic Beach, FL 32233PRESERVED TREE INVENTORY 9 " 1-9;t»', (P)904-247-5800 i List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT BI ID DBH SPECIES COMMENTS(for use by City Staff) removing preserving replacing 26 11" Palm 27 8" Sweetgum i 28 6" Oak 29 9" Palm 30 3.5" Sweetbay Magnolia 1 31 3.5" Sweetbay Magnolia 32 12" Palm 33 12" Palm 34 12" Palm 35 13" Oak 36 11" Palm 37 11.5" Palm 38 12" Palm 39 9.5" Palm 40 12.5" Palm 41 11" Palm 42 11" Palm Total 433" DBH f 6 l I02 TREE REMOVAL-EXHIBIT C:Tree Mitigation Worksheet 03.01.2018 q\q chrnen-1- 1- t• dvaictil q k zt si 1 J/ Jo TREE REMOVAL CALCULATIONS 5 A s} City of Atlantic Beach J= „r; ti Community Development Department 800 Seminole Road Atlantic Beach, Florida 32233-5445 403319'. Phone: (904)247-5826 Fax: (904) 247-5845 Email: Building-Dept@coab.us Permit: TREE20-0034 Applicant: Thomas Bourdon Address: Site Address: 342 19th Street Phone: RE#: Email: TREE REMOVAL CALCULATIONS REMOVED Legacy(non-oak) Legacy(oak)Oaks Palms Others Total Protected Trees Removed: 24 0 0 130 72 226 Mitigation Needed: 24 0 0 130 72 226 Trees Removed: 24"Hickory;8",9", 11",2-14", 16"Trees;8",9",8-10",3-11"Palms MITIGATION Legacy(non-oak) Legacy(oak)Oaks Palms Others Total Credit for Trees Preserved: 0 0 0 0 0 0 Credit for Trees Relocated: 0 0 0 0 0 0 Credit for Trees Planted: 0 0 0 0 0 0 Total: 0 0 0 0 0 0 Trees Preserved: None for credit(trees 3"-5"diameter). Trees Relocated: None for credit. Trees Planted: None for credit. Planted Legacy Tree species receive DOUBLE credit when replacing non-Legacy Trees. The Legacy Tree list includes Bald Cypress; Southern and Eastern Red Cedars; Winged and Florida Elms; Live and Sand Live Oaks; Hickory; Pecan; Pignut Hickory;Loblolly Bay;Southern and Sweetbay Magnolias;Red and Florida Maples;and Tupelo. ADDITIONAL MITIGATION REQUIRED (Mitigation Needed—Total) Legacy(non-oak) Legacy(oak)Oaks Palms Others Total New Trees Planted: 0 0 0 0 0 226 or Payment Into Tree Fund**: 0.00 0.00 0.00 0.00 0.00 $33,448.00 or A Combination of the Above** At least 50%of mitigation must be onsite. Additional Notes: Mitigation is 1 inch preserved or planted for every 2 inches removed.Tree Fund rate is$148.00 per inch. Status is in accordance with the City of Atlantic Beach code of ordinances in effect at the time of application submittal. APPROVED DENIED TPO ADMINISTRATOR DATE ATTACHMENT TO EMAIL DATED 9/1/2021 113 I , i-4fr, e, EXHIBIT C: TREE MITIGATION WORKSHEET City of Atlantic Beach Community Development Department OF, 800 Seminole Road Atlantic Beach, FL 32233 FOR INTERNAL OFFICE USE ONLY P)904-247-5800 PERMIT# List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B X 1"= "0"-- ID o„- ID DBH SPECIES COMMENTS removing preserving replacing 1 10" Palm 2 24" Hickory Legacy Tree" (Sec.23-33(f)(2)(c),AB Ord.Code) 3 11" Tree 4 16" Tree 5 11" Palm 6 10" Palm 7 10" Palm 8 10" Palm 9 9" Palm 10 11" Palm 11 9" Tree 12 10" Palm 13 11" Palm 14 10" Palm 15 10" Palm 16 8" Palm 17 14" Tree 18 8" Tree 19 14" Tree 20 10" Palm Total 266" DBH gTTAC MENTT TO EMAIL DATED 9/1/2Q21 02 TREE REMOVAL- HIBIT C:Tree Mitigation Worksheet 03.01.2018 2 ) 3 fir\ ii. w. 893& 7"F ay. to• Tree #1: 10" Palm ii Tree #2: 24" Hickory Tree #14 Tree #13 Tree #3: 11" TreeTree #12 Preserved Tree #15,Trees Tree #4: 16 Tree t Tree #5: 11" Palm Tree #16 / 40 x Tree #17 Tree #6: 10" Palm NI ree #1 2 x Tree #7: 10" Palm Tree #19 Tree #18 X 3 Tree #2 Tree #20 Tree #8: 10" Palm Auk.' j f: /t. Tree #9: 9" Palm aa to Tree #6 0t Tree #10: 11" Palm e • •• ` A¢ X `-`—* Tree #3 Tree #11: 9" Tree 6 XTree #4 Tree #12: 10" Palm 0 l-- STORY`S X Tree #5 Tree #13: 11" Palm Ce c.c./AL./4. Tree #14: 10" Palm c y /& E•/ES r, Tree #15: 10" Palm os 94'• : 40•J11 Tree #16: 8" Palm to ro.: •':• c; e• ,v p '4 aTa I. Tree #17: 14" Tree N Tree #8 i ' Tree #18: 8" Tree XTree #10 X 1.1 11aTree #19: 14" Tree Z ' Elb Tree #7 Ilk N Tree #20: 10" Palm X X Preserved Tree #9 ' Iti r Trees ATTACHMENT TO EMAIL DATED 9/1/2021 0 I' I WAR Tree #11 1ID V CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7017 1000 0000 7000 3075 vs. Property Address: 342 19`h St. Thomas Patrick Bourdon Atlantic Beach, FL 32233 342 19th St. Atlantic Beach, FL 32233 Respondent. CASE NUMBER: 21-087 REAL ESTATE NUMBER: 172020 1242 LEGAL DESCRIPTION: 36-64 09-28-29E SELVA MARINA UNIT 12-A LOT 5, ATLANTIC BEACH, FL ORDER ON CASE NO. 21-087 THIS CAUSE came for public hearing before the Code Enforcement Special Magistrate on September 2, 2021, and the Special Magistrate having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, issues findings of fact, conclusions of law, and orders as follows: FINDINGS OF FACT 1. Respondent owns the property located at 342 19th St., Atlantic Beach, Florida. 2. Notice of the hearing was sent by USPS and delivered on August 5, 2021. 3. The Respondent was represented by Mr. Karl Sanders. The Respondent was previously cited for violation of Sec. 23-51 (d) and Sec 23-46 for failing to make proper application for tree or vegetation removal permit and then failing to immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties as specified in Section 23-33. 4. The City of Atlantic Beach issued a stop work Order on August 3, 2020. A tree removal application was received on August 19, 2020. However, to date no mitigation plan has been implemented. 5. Counsel for the Respondent previously stated that they are researching the issue of contesting the allegation of"inches" of the tree or money to contest the allegations. 6. The City of Atlantic Beach requested that the Respondent stay active in this matter and within 7-10 from the date of the last Order either submit mitigation or provide documentation as to whether the Respondent is waived from the Code Sections. 7. The City of Atlantic Beach stated that they received the Respondent's Expert's findings for mitigation the evening of September 1, 2021 and therefore have not had the time to review the submission. 8. The City of Atlantic Beach requested a fine of$50 per day be assessed against the Respondent for failure to timely submit the mitigation plan. The City of Atlantic Beach also requested time to review the submission. CONCLUSIONS OF LAW 9. The Respondent was provided proper notice of the violation and hearing and was represented by Counsel. Respondent admitted they did not timely provide their expert's mitigation report until September 1, 2021. The City of Atlantic Beach is to review the report to determine if mitigation has been accomplished. The compliance review will be placed on the November 4, 2021 agenda. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: THAT the Respondent has provided a "mitigation" report regarding the status of the trees and rectify the mitigation. If the matter is not rectified, the issue will be placed on the November 4, 2021 agenda for determination of compliance. The $50.00 per day fine is reserved until the November 4, 2021 hearing. DONE AND ORDERED THIS 14TH DAY OF SEPTEMBER, 2021. CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ATTEST: jj 7;r AO) r/ n 4-K !tom (r` ; -----. Kimberly lower, Records Clerk Suzanne W. Green, Special Magistrate Executed this 14th day of September 2021. PLEASE NOTE: Florida Statutes § 162.11 requires that any appeal of this order must be filed in the circuit court for Duval County within 30 days of this order's execution. 2 ENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY Conip)ete items,1,.2,and 3.Also complete A. Signature item*=if Restricted Delivery is desired. Agent PrintyouK name arid address on the reverse. • , Addresse othat wecap:return the card to you._ B. Received by(Printed Name) C. Date of Deliver Attachthis card•to^the back of the mailpiecer L25 z.Ititonthefrontifspacepermits. i l D"fs delivery address different from item 1? 0 Yes 1. Article Addressed to: If YES,enter delivery address below: 0 No Thr s fa rc .Gourd ov-, I ' o U 3. 0Se Type C Certified Mail® 0 Priority Mail Express"' Registered 0 Return Receipt for Merchandis 0 Insured Mail 0 Collect on Delivery 4. Restricted Delivery?(Extra Fee) 0 Yes 7017 1000 0000 7000 3075 PS Form 3811.July 2013 Domestic Return Receipt I riza rry,Angela From: Askew, Amanda Sent: Tuesday, September 14, 2021 3:55 PM To: Karl J. Sanders Cc:Irizarry,Angela; TOMBOURDON7@GMAIL.COM Subject: 342 19th Street Attachments: 342 19th St - City's response to Sept. 1 submittal.pdf Good afternoon Karl, Attached you will find the city's official response to the materials submitted on Sept. 1st regarding the trees on 342 19th Street. Please let me know if you have any questions. Amanda 1. Askew, AICP Director of Planning and Community Development 800 Seminole Road Atlantic Beach, FL 32266 904-247-5841 11z City of Atlantic Beach sn Community Development Dept. 800 Seminole Road Atlantic Beach,Florida 32233 Telephone(904)247-5826 www.coab.us CITY OF ATLANTIC BEACH Code Enforcement Case#21-987 Thomas Patrick Bourdon—342 19th Street CITY'S RESPONSE TO Bourdon's September 1 Submittal To: Karl Sanders, Esq., Counsel to Bourdon,via email From: Amanda L. Askew, Director of Planning and Community Developmentl 7"' Through: Angela Irizarry, Code Enforcement Officer CC: Thomas Patrick Bourdon,via email The Honorable Suzanne Green, Special Magistrate, via email Date: September 14, 2021 The City hereby submits the following response to the correspondence and materials you sent to the City on September 1, 2021 (the "September 1 Materials"), regarding the tree code issues at 342 19th Street, owned by Thomas Patrick Bourdon. A copy of the two charts included in the September 1 Materials is attached to this Response. The September 1 Materials raise two distinct issues: first, whether the removal of the trees in August, 2020, can qualify for and fall within the scope of Section 163.045(1), Florida Statutes based on the information included in the September 1 Materials; and second, whether and how many of the trees preserved on site qualify for mitigation credit under former Section 23-33(d) of the City's Code. [Note: Because Mr. Bourdon submitted a tree permit application prior to adoption of the new Tree Code on July 12, 2021, the City's review is based on the former Tree Code that was in effect at the time of the permit application.All references to the City's Code are to the former version of the Tree Code.] Pre-emption Under Florida Statutes In regards to the first issue,the September 1 Materials do not meet the requirements contained in Section 163.045(1), F.S. That subsection provides: A local government may not require a notice,application,approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International 1 z) Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property. 163.045(1), F.S. The September 1 Materials do not constitute documentation from a licensed Florida landscape architect or a certified arborist. No license number or ISA certification number is included.There is no signature of the arborist/landscape architect and it is not dated. In addition,this referenced statute plainly requires that the property owner only qualifies for the pre-emption if the owner obtains documentation that a tree "presents" a danger to persons or property. In other words, the question is whether, at the time the tree was still standing, the tree was a danger to person or property. No statement that each of the removed trees constituted a danger to person or property prior to or at the time of removal from a landscape architect/arborist is included in the September 1 Materials. Moreover, because it is now over one year since the trees were removed, it is questionable whether such a statement is now even possible unless of course the landscape architect/arborist inspected the trees prior to removal. If that is not the case, the landscape architect/arborist's statement should include information explaining the method/basis/industry standards used to make the after-the-fact determination. However, the City does not waive its right to contest the legality of an after-the-fact determination. Finally,the September 1 Materials do not indicate how each removed tree meets the "danger to person or property"factors. For example, in what way did Tree#1 as shown on Chart#1 present a danger to persons or to property? Blanket statements are insufficient. Preservation Credits In regards to the second issue raised in the September 1 Materials—namely, how many of the trees preserved on site qualify for mitigation credit under Section 23-33(d) of the City's former Tree Code — it is clear that the Code provision has been mis-interpreted in the September 1 Materials, as shown on Chart#2. Section 23-33(d) provides: Existing onsite trees that are three (3) inches DBH or greater and which are neither protected nor transplanted may be utilized as credit towards the assessed mitigation, subject to the other conditions stated in this section, if preserved onsite. This Code section only permits mitigation credit for trees preserved on site with a DBH of three inches or greater and which are neither protected under the Code or transplanted on site. Per Section 23-8 of the City's former Code, trees with a DBH of six (6) inches or more are regulated and thus protected under the Code. As a result, all but three trees shown on Chart #2 do not qualify for mitigation credits. Specifically, the City agrees that Tree ID#2 (5" Palm), Tree ID #30 3.5" Sweetbay Magnolia) and Tree ID #31 (3.5" Sweetbay Magnolia) do qualify for mitigation credits, subject, however, to inspection by the City verifying the species, size and health of the three trees. 2 i) Conclusion Based on the reasons stated above, the September 1 Materials are insufficient, incomplete and inaccurate. As a result, and in on-going good faith negotiations with you, the City requests that you provide additional documentation to the City addressing the insufficiencies noted above, no later than October 1, 2021.This deadline will permit adequate time prior to the November Code Enforcement hearing for you and the City to determine whether a mutually acceptable resolution can be reached in this case. 3 yl $ EXHIBIT G TREE MITIGATION WORKSHEET 4Ik :\-P, City of Atlantic Beach r,I Community Development Department I/ 800 Seminole Road Atlantic Beach,FL 32233 Landscape Architect's 03)904-247-5800 Calculations(Removed Trees) Ust the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B N-9 4I 'p ID DISH SPECIES X'= •I1'= 5ec 163.045 COMMENTS removing preserving Preemption 1 10" Palm 2 24" Hickory 3 11" Tree 4 16" Tree 5 11' Palm 6 10' Palm 7 10" Palm 8 10" Palm 9 9° Palm 10 11° Palm 11 9" Tree 12 10" Palm 13 11" Palm 14 10° Palm 15 10" Palm 16 8" Palm 17 14" Tree 18 8" Tree 19 14" Tree 20 10" Palm Total50" Total DBH based on the 5 removed trees that did not DISH present danger to personslproperty(183.0451 Fla.Stat) 02 TREE REMOVAL-E HI8lTC Tree Mitlgallon Worksheet 03.012018 s16 s7'rT; EXHIBIT G TREE MITIGATION WORKSHEET 1.?'. .,, j City of Atlantic Beach C f2 I . -IL a i) Community Development Department 800 Seminole Road Atlantic Beach,FL 32233 PRESERVED TREE INVENTORY 7"/ (P)904-247-5800 List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B Pact I o f 3 ID NH SPECIES removing preserving repladng COMMENTS(for use by City Staff) 1 11° Palm 2 5' Palm 3 23" Oak 4 9.5' Sweetgum 5 10' Sweelgum 6 8" Sweetgum 7 8.5" Sweelg um 8 9° Sweelgum 9 10" Sweetgum 10 7.5" Sweetgum 11 8' Sweetgum 12 11' Sweetgum 13 10° Sweetgum 14 10" Palm 15 12.5° Palm 16 14' Sweelgum 17 8" Sweetbay Magnolia 18 6" Sweetbay Magnolia 19 11" Palm 20 12.5" Palm 21 13" Palm 22 13" Sweetgum 23 12" Palm 24 1(7' Sweetgum 25 12" Palm 02 TREE REMOVAL-EXHIBITC Tree Mitigation Worksheet 03.012018 s=-Anr> EXHIBIT G TREE MITIGATION WORKSHEET f City of Atlantic Beach act_v- * Z l's!!) Community Development Department 800 Semi note Road Atlantic Beach,FL 32233 ts1% (P)904-247-5800 PRESERVED TREE INVENTORY List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B P0. 4 a 0 F 3 ID DBI-1 SPECIES removing preserving replaang COMMENTS(for use by City Staff) 26 11" Palm 27 8" Sweelgum 28 6" Oa 29 9" Palm 30 3.5" Sweetbay Magnolia 31 3.5" Sweetbay Magnolia 32 12" Palm 33 12" Pal 34 12" Palm 35 13" Oak 36 11" Palm 37 11.5" Palm 38 12" Palm 39 9.5" Palm 40 12.5" Palm 41 11^ Pal 42 11" Palm Total " DOH 02 TREE REMOVAL-EXM8tTG TreeMItlgazlon Worksheet 03.01.2018 1I1S Tree#1: 11" Palm Tree#2: 5" Palm Tree#21: 13" Palm Tree#22: 13" Other r#T, I:Tree#3: 23"Other Tree#23: 12" Palm 4:.:',NO* • • Tree#4:9.5"Other Tree#24: 10"Other Tree#5: 10"Other Tree#25: 12" Palm IP • Tree#6: 8" Other Tree#26: 11" Palm Tree#7: 8.5"Other Tree#27: 8" Other Tree#8: 9" Other Tree#28: 6" Other l/ Tree#9: 10"Other Tree#29: 9" Palm Tree#10: 7.5"Other Tree#30: 2" Other Concrete Tree#11:8"Other Tree#31: 3.5 "Other Tree#12: 11"Other Tree#32: 3.5" Other Tree#13: 10"Other Tree#33: 12" Palm Tree#14: 10" Palm Tree#34: 12" Palm Tree#15: 12.5" Palm Tree#35: 12" Palm Tree#1.6: 14"Other Tree#36: 13"Other Tree#17:8"Other Tree#37: 11" Palm Tree#18: 6"Other Tree#38: 11.5" Palm Tree#19: 11" Palm Tree#39: 12 Palm" Tree#20: 12.5" Palm Tree#40: 9.5" Palm Tree#41: 12.5"Palm Concrete Tree#42: 11" Palm i. Tree#43: 11" Palm PRESERVED TREES 342 19th St,Atlantic Beach rl 04) VY r LAI-Ti,/,,,,i 44 dir ; CODE ENFORCEMENT r 3,. CITY OF ATLANTIC BEACH, FLORIDA 6 NOTICE OF HEARING 10;319'" 10/4/2021 Case Number: 21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7013 1710 0002 1691 9103 ATLANTIC BEACH, FL 32233 Property Address: 342 1 9TH STREET ATLANTIC BEACH, FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on November 4, 2021 at 2:00 pm at Atlantic Beach City Hall, Commission Chamber, 800 Seminole Road, to answer and be heard on the following alleged violations on the property known as 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida. The City of Atlantic Beach adopted the International Property Maintenance Code and the Florida Building Code as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. International Property Maintenance Code/City Code of Ordinances 1. Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2) times the normal established application fee specified in section 23-26. In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2)Regulated trees removed in violation of this chapter shall be assessed at two (2) times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. STATEMENT OF CODE ENFORCEMENT OFFICER: A stop work order was posted on the property on August 3,2020 for removal of trees on the property prior to issuance of a tree removal permit. A tree removal application was received on 8/19/2020 but no mitigation plan has been approved. This case was heard before the Special Magistrate on September 2, 2021 and the Magistrate ordered that the case be reviewed for compliance at the November 4, 2021 hearing. Page 1 of 2 t If the violation is corrected and then recurs or if the violation was not corrected by the time specified for correction by the Code Enforcement Officer in the Notice of Violation that you received,the case may be presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. You have the right to obtain an attorney at your own expense and to present witnesses on your behalf. If you desire to have witnesses subpoenaed or if you have questions regarding the procedure, please contact the City Clerk's office within five days of the receipt of this notice at (904) 247-5821. Please note the presence of a court reporter for the purpose of insuring a verbatim record in the event an appeal should be secured at your expense. I, C (hereby swear and affirm that the above statement is i e and abcurate. r 0 Angela Code Enforcement Officer, City of Atlantic Beach ATTEST: 9cf-Abo Kim Flower, Records Clerk cc: Karl Sanders via email: kjsanders@kjslawpa.com U.S. Postal ServiceTM CERTIFIED MAILTM RECEIPT Domestic Mail Only;No Insurance Coverage Provided) Er For delivery information visit our website at www.usps.com® rg cr. Postage $ N Certified Fee _ a Postmark Return Receipt Fee Here Endorsement Required) Restricted Delivery Fee El (Endorsement Required) Total Postage&Fees rq frl sego O• rl aur OVl Y lQs v0.'YI O Street,Apt.No.; p- or PO Box No. City,State,ZIP+4 PS Form 3800.August 2006 See Reverse for Instructions Page 2 of 2 ENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY Complete items 1,2,and 3. A. Signature Print your name and address on the reverse x C - Agent so that we can return the card to you.0 Addresse Attach this card to the back of the mailpiece, B. Received by(PrintedName) C. Date of Deliver or on the front if space permits. Z-t Z,`1 b-1 -Lo 1 1. Article Addressed to: D. Is delivery address different from item 1? 0 Yes ur If YES,enter delivery address below: 0 No clbo lhovras fil ri c K Ce - 2i - ©g 7 3. ServiceType Priority Mail Express® III'I II III IIIIIIMill IIIIIII II Adult Signature 0Registered MaiIT"" Adult Signature Restricted Delivery 0 Registered Mail Restrict Certified Mail® Delivery 9590 9402 5982 0062 6068 11 El Certified Mail Restricted Delivery 0 Return Receipt for El Collect on Delivery Merchandise 2. Article Number(Transfer from service label) Collect on Delivery Restricted Delivery 0 Signature Confirmation* 7 Insured Mail Signature Confirmation 013 1710 0002 16 91 9103 7 Insured Mail Restricted Delivery Restricted Delivery over$500) Dc G,.... '2A1 1 rid.,onl r;near 7GQn_n0_nnn_nnnO nnmeefin Refn,.Rnroinl Irizarry,Angela From: Irizarry,Angela Sent: Wednesday, October 20, 2021 11:03 AM To: Askew, Amanda Cc:Karl J. Sanders' Subject: RE: 342 19th Street Good Morning All, The Code Enforcement action on this case is still pending. Since the Magistrate has not imposed any fines yet in this case,there is nothing for the Magistrate to consider reducing.The amount of the mitigation due is not in her purview to reduce since it is set by code and is not discretionary. From:Askew,Amanda Sent: Monday, October 18, 2021 3:15 PM To: Irizarry,Angela <alrizarry@coab.us> Subject: FW: 342 19th Street Fyi-- From:Askew,Amanda Sent: Monday, October 18, 2021 1:05 PM To: 'Karl J. Sanders' Subject: RE: 342 19th Street Good morning Karl, As I mentioned staff and Commission can't make a settlement since this case is at the magistrate level. Commission is only able to hear an appeal of an administrative decision. At this point you can only appeal staff's interpretation of Chapter 23. This does not alleviate code enforcement. However, you can ask for a fine reduction during the special magistrate process. The special magistrate has entertained fine reductions in other cases. However, tree removal without mitigate irreparable tree removal. Staff can only approve the required replacement/mitigation or you must continue on the code enforcement route. You From: Karl J. Sanders [mailto:kjsanders@kjslawpa.com] Sent: Wednesday, October 6, 2021 6:22 PM 1 To:Askew, Amanda Subject: Re: 342 19th Street Just touching base . . . have you had an opportunity to speak with the City Manager regarding our discussion late Monday afternoon? No worries if not, I completely understand how busy everyone is right now! Just let me know if you/he have any questions for me or need additional information. Thanks again, and talk soon. Best regards, Karl Karl J. Sanders, Esq. 1(ci4 kjsanders(akjslawpa.com 904.868.7929 I OfficejiAx L/A V 561.386.1216 I Mobile From: Karl Sanders<kisanders@kislawpa.com> Date: Monday, October 4, 2021 at 5:53 PM To: Amanda Askew<aaskew@coab.us> Subject: Re: 342 19th Street Hey, Amanda. Thanks again for taking time to further discuss the tree removal/mitigation issues and potential options for resolving same. As discussed, the next steps here are that you will be reaching out to the City Manager to see what number (if any) may potentially be amenable to the City as a proposed settlement of these issues which could then be presented to the City Commission by way of an appeal of the City's interpretation of the prior Tree Code language regarding mitigation credit for preserved trees). Looking at the inventory calculations prepared by my client's landscape architect, I would suggest that a reasonable settlement offer would be somewhere in the range of $5,000. Again, this is just a suggestion, as I have not yet discussed it with my client (and, of course, will need his approval first), but I wanted to provide you with a proposed number ASAP so we can continue trying to move this matter forward. And, if the City Manager believes that it is worthwhile to entertain such a proposal to settle this matter, I can certainly provide you (and him) with a detailed breakdown of how I came up with that number (i.e., I didn't just pull it out of thin air!). Lastly, I would also note that -- in the event that we aren't able to come to terms on a reasonable settlement number and have to litigate the issue of the preemption language of Section 163.045, Fla. Stat. — the Florida Legislature amended Section 57.112 in 2019 to provide for a mandatory award of attorney fees, costs and damages to the prevailing party in a civil action filed to challenge a local government's attempt to enforce an ordinance that is preempted by state law. I mention that only as another reason why I believe it makes sense for the City to seriously consider a potential settlement to resolve this issue now . . . no one wants to spend time/money litigating this matter, but the potential 2 financial exposure to the City is real (which is why I believe a settlement of $5,000 is both reasonable and justified under the current facts). In short, I sincerely believe that finding a mutually agreeable solution to this matter would be in everyone's best interests, and I continue to believe that we can find a way to make that happen. Again, I appreciate your continued efforts in working with me to try and resolve this issue, and I look forward to hearing back from you after you've had a chance to discuss this with the City Manager. Best regards, Karl Karl J. Sanders, Esq. Kckjsanders@kjslawpa.corn 904.868.7929 I Office LAW, 561.386.1216 I Mobile From: Karl Sanders <kisanders@kjslawpa.com> Date: Monday, October 4, 2021 at 3:23 PM To: Amanda Askew<aaskew@coab.us> Cc: Angela Irizarry<alrizarry@coab.us>, Tom Bourdon <TOMBOURDON7@GMAIL.COM> Subject: Re: 342 19th Street Hey, Angela. Thanks for the follow-up. I'm back in the office today and have been tied up with calls/meetings since this morning. I should be freed up for a call by 4:00 this afternoon, and I was hoping that we could schedule a few minutes to speak sometime between 4:00 and 5:00 today to talk about the questions I had regarding the City's analysis of the tree removal/mitigation issues. Please let me know if that timeframe works for you. Thanks again, and I look forward to speaking with you again soon. Best regards, Karl Karl J. Sanders, Esq. KS kjsanders@kjslawpa.com 904.868.7929 I Office LAW,.. 561.386.1216 I Mobile 3 From: Amanda Askew<aaskew@coab.us> Date: Monday, October 4, 2021 at 3:12 PM To: Karl Sanders <kjsanders@kjslawpa.com> Cc: Angela Irizarry<alrizarry@coab.us>, Tom Bourdon <TOMBOURDON7@GMAIL.COM> Subject: RE: 342 19th Street Good afternoon Karl, I just wanted to follow up on the below and your email on 9/29 to see if you have any questions. From:Askew, Amanda Sent:Wednesday, September 29, 2021 5:43 PM To: 'Karl J. Sanders' Cc: Irizarry,Angela;TOMBOURDON7@GMAIL.COM Subject: RE: 342 19th Street Hello Karl, I got a message this morning that you left after 5 yesterday. I'm normally at my desk but had a board meeting. You message indicated that you would follow up via email with your questions. I have some time tomorrow (9/30) after 2pm or Friday (10/1) at 9am or 10am. Just let me know if something works for you. From: Karl J. Sanders [mailto:kisanders@kislawpa.coml Sent:Wednesday, September 29, 2021 4:52 PM To:Askew,Amanda Cc: Irizarry,Angela;TOMBOURDON7@GMAIL.COM Subject: Re: 342 19th Street Hey, Amanda. I've left a couple of voice mail messages regarding some questions/concerns that I'd like to run by you concerning some of the statements made in the City's 09/14/21 memo. In particular, I'd like to discuss the proposed interpretation of the applicable Code language regarding preserved trees" and mandatory mitigation credit for same. As I have previously stated, if we can resolve that issue (and I remain hopeful that we can), everything else is moot. Please let me know if you have time for a call to discuss this week. I am tied up all day tomorrow, but I'm generally available on Friday anytime after 11:00 am. Thanks so much, and talk soon. Best regards, Karl 4 Karl J. Sanders, Esq. kjsanders@kjslawpa.com 904.868.7929 I Office LAW,, 561.386.1216 I Mobile From: Karl Sanders <kjsanders@kjslawpa.com> Date: Thursday, September 23, 2021 at 5:30 PM To: Amanda Askew <aaskew@coab.us> Cc: Angela Irizarry<alrizarry@coab.us>, Tom Bourdon <TOMBOURDON7@GMAIL.COM> Subject: Re: 342 19th Street Hey, Amanda. I've been tied up with another matter all week and just now saw your email from Tuesday. Thank you for the follow-up. Yes, I received your prior email and the City's attached memo of 09/14/21. We are in the process of compiling the requested information and preparing a formal response, which we will finalize and send to you no later than October 1 (as requested). That being said, I do have a couple of questions regarding the City's interpretation of its former Tree Code with respect to mitigation credit for trees preserved onsite, as per Section 23-33(d). I will try calling you tomorrow to discuss further. Thanks again, and talk soon. Best regards, Karl Karl J. Sanders, Esq. kjsandersna kjslawpa.com 904.868.7929 I Office I,AW„ 561.386.1216 I Mobile From: Amanda Askew<aaskew@coab.us> Date: Tuesday, September 21, 2021 at 11:38 AM To: Karl Sanders <kisanders@kislawpa.com> Cc: Angela Irizarry<alrizarry@coab.us>, Tom Bourdon <TOMBOURDON7@GMAIL.COM> Subject: RE: 342 19th Street Hello Karl, 5 I just wanted to follow up on my email below to make sure you got the attached and see if you had any questions. Please confirm receipt of this email. From:Askew, Amanda Sent:Tuesday, September 14, 2021 3:55 PM To: 'Karl J. Sanders' Cc: Irizarry,Angela; 'TOMBOURDON7@GMAIL.COM' Subject: 342 19th Street Good afternoon Karl, Attached you will find the city's official response to the materials submitted on Sept. 1St regarding the trees on 342 19th Street. Please let me know if you have any questions. Amanda L. Askew, AICP Director of Planning and Community Development 800 Seminole Road Atlantic Beach, FL 32266 904-247-5841 Want to receive City of Atlantic Beach news by email?Just say so in an email to info@coab.us. Follow the City of Atlantic Beach on Facebook https://www.facebook.com/CityOfAtlanticBeach. Florida has a very broad Public Records Law. Most written communications to or from State and Local Officials and agencies regarding State or Local business are public records available to the public and media upon request. Your email communications, including your email address, may therefore be subject to public disclosure. Atlantic Beach residents and other stakeholders, imagine what your community could be at its very best in the year 2040, and let us know your thoughts by completing the City of Atlantic Beach 2040 VISION Citizen Questionnaire by Oct. 20, 2021. Here is the questionnaire: https://bit.ly/3ifkC6m, Here is information about the City's visioning process and why it's important: www.coab.us/vision. Want to receive City of Atlantic Beach news by email?Just say so in an email to info@coab.us. Follow the City of Atlantic Beach on Facebook at www.facebook.com/cityofatlanticbeach. Florida has a very broad public records law. Most written communications to or from state and local officials and agencies regarding state or local business are public records available to the public and media upon request. Your email communications, including your email address, may therefore be subject to public disclosure. 6 Irizarry,Angela From: Karl J. Sanders <kjsanders@kjslawpa.com> Sent: Monday, October 25, 2021 5:01 PM To: Askew, Amanda Cc:Irizarry,Angela Subject: Registered Landscape Architect Declaration re: Tree Removal/Mitigation Issue at 342 19th St (Code Enforcement Case No. 21-087) Attachments: DECLARATION (with Exhs) of Michael Miller RLA re Tree Removal & Mitigation.pdf Hey, Amanda. Nice speaking with you again today. As discussed, I've attached a copy of the Verified Written Declaration from the Registered Landscape Architect that my clients retained to review the circumstances surrounding removal of the subject trees from their residential property at 342 19th Street. As more fully set forth in that Declaration, our duly licensed Registered Landscape Architect has concluded that 15 of the 20 trees which were removed from the Bourdon Residence presented a danger to persons and/or property at the time of their removal; accordingly, per Section 163.045, Florida Statues, any local regulations requiring prior notice, application, approval, permit, fees or mitigation for their removal are expressly preempted by State law. Once you and your Staff have had an opportunity to review the attached Declaration, I kindly ask that you confirm the City will be revising its initial Tree Removal Calculations and corresponding mitigation assessment. Should you have any questions or wish to discuss further, please do not hesitate to contact me. Best regards, Karl Karl J. Sanders, Esq. KS kjsanders@kjslawpa.com 904.868.7929 I Office LAWPA 561.386.1216 I Mobile VERFIED WRITTEN DECLARATION OF MICHAEL MILLER, RLA The undersigned Declarant, Michael Miller, hereby states the following: 1. My name is Michael Miller, and I am licensed to practice landscape architecture in the State of Florida as a Registered Landscape Architect (RLA License # LA6666826). 2. The facts set forth herein are based on my personal knowledge regarding the removal of certain trees from the residential property of Thomas and Kathleen Bourdon, located at 342 19th Street in Atlantic Beach, Florida. 3. In addition to being licensed by the State of Florida as a Registered Landscape Architect since 2006, my education, knowledge, skills, training and professional experience in the field of landscape architecture demonstrate my qualifications and professional competency to testify and opine on the facts set forth herein; namely: a. I received my Bachelor of Landscape Architecture degree from the University of Florida in 1998. b. I have held several leadership roles in the Florida Chapter of the American Society of Landscape Architects (ASLA) — the national association representing landscape architects throughout the United States — including serving as President of the Florida ASLA Chapter in 2013. c. I am currently employed as a Senior Landscape Architect& Project Manager for England-Thims& Miller, Inc., a full-service engineering and consulting firm with offices located in both North and Central Florida. 4. On or about July 23, 2020, Mr. and Mrs. Bourdon closed on the purchase of their family's new home at 342 19th Street in Atlantic Beach (the "Bourdon Residence"). Shortly thereafter, and prior to relocating the family to Florida, Mr. Bourdon was advised that he should promptly have certain trees on the property removed, as they posed a danger to both the existing single-family home located on the Bourdon Residence and the property of his adjoining neighbor on the eastern side of the Bourdon Residence. 5. On or about August 1, 2020, Mr. Bourdon retained a local tree service company to remove a total of twenty(20)trees from his property;the remaining 42 trees located on the property were preserved onsite and are still standing today. A complete inventory of the trees removed from the Bourdon Residence — as prepared by an employee of the City of Atlantic Beach — is attached hereto as Composite Exhibit A" and incorporated by reference herein. 6. On or about August 10, 2020, Mr. Bourdon was contacted by an employee of the City of Atlantic Beach and advised that the City's local regulations required him to secure an after-the-fact permit for the removal of those trees from the Bourdon Residence. 7. The City's tree protection regulations require a permit for the removal of any tree identified as a "Legacy Tree" by the City, and Hickory trees are identified as one of the types of"Legacy Trees" subject to the City's permitting requirements. 8. One of the trees removed from the Bourdon Residence was a Hickory tree, with a diameter at breast height (DBH) of 24 inches; none of the other trees removed from the Bourdon Residence were "Legacy Trees," as defined by the City's tree protection regulations. 9. In 2019, the Florida Legislature enacted legislation to preempt certain local government regulations regarding the removal of trees on one's residential property; namely, Section 163.045 provides that: A local government may not require a notice, application, approval, permit, fee or mitigation for the pruning, trimming or removal of a tree on residential property if the property owner obtains documentation from . . . a Florida licensed landscape architect that the tree presents a danger to persons or property." 10. In my professional opinion as a Florida licensed landscape architect, no permit application was required to remove the Hickory tree from the Bourdon Residence, as — prior to its removal — the tree presented a danger to his property due to its size and proximity to the home's foundation and roof; as such, per the terms of Section 163.045, Florida Statutes, no permit was required for its removal, notwithstanding any contrary provisions of the City's tree protection regulations. 11. Similarly, of the remaining nineteen (19)trees that were removed from the Bourdon Residence, fourteen (14) of them — prior to their removal — presented a danger to persons and/or property located on both the Bourdon Residence and the adjoining neighbor on the eastern side of the Bourdon Residence, due to their location, size and/or health; as such, in my professional opinion as a Florida licensed landscape architect, the removal of those fourteen (14)trees was also justified and expressly permitted by State law, notwithstanding any contrary provisions of the City's tree protection regulations. 12. A complete inventory of the twenty (20) trees removed from the Bourdon Residence — including identification of the fifteen (15) trees which presented a danger to persons or property at the time of their removal (the "Exempt Trees"), as well as the forty-two (42) trees that were preserved onsite — is set forth in Composite Exhibit "B" and incorporated by reference herein. Page 2 of 3 13. For all the reasons set forth herein, it is my professional opinion that — per the express terms of Section 163.045, Florida Statutes —the Exempt Trees removed from the Bourdon Residence are not subject to the City's local regulations which might have otherwise required prior notice, application, approval, permits, fees or mitigation for their removal. Under penalties of perjury, I declare that I have read the foregoing recitals and the facts stated in it are true. Executed on this 21st day of October, 2021. MICHAEL MILL R, RLA Page 3 of 3 COMPOSITE EXHIBIT "A" t f' Sy'''r TREE REMOVAL CALCULATIONS S City of Atlantic Beach Community Development Department 800 Seminole Road Atlantic Beach,Florida 32233-5445 4-0.219./- Phone: (904)247-5826 Fax: (904)247-5845 Email: Building-Dept@coab.us Permit: TREE20-0034 Applicant: Thomas Bourdon Address: Site Address: 342 19"Street Phone: RE#:Email: TREE REMOVAL CALCULATIONS REMOVED Legacy(non-oak) Legacy(oak)Oaks Palms Others Total Protected Trees Removed: 24 0 0 130 72 226 Mitigation Needed: 24 0 0 130 72 226 Trees Removed: 24"Hickory;8",9", 11",2-14", 16"Trees;8",9",8-10",3-11"Palms MITIGATION Legacy(non-oak) Legacy(oak)Oaks Palms Others Total Credit for Trees Preserved: 0 0 0 0 0 0 Credit for Trees Relocated: 0 0 0 0 0 0 Credit for Trees Planted: 0 0 0 0 0 0 Total: 0 0 0 0 0 0 Trees Preserved: None for credit(trees 3"-5"diameter). Trees Relocated: None for credit. Trees Planted: None for credit. Planted Legacy Tree species receive DOUBLE credit when replacing non-Legacy Trees.The Legacy Tree list includes Bald Cypress; Southern and Eastern Red Cedars; Winged and Florida Elms; Live and Sand Live Oaks; Hickory; Pecan; Pignut Hickory;Loblolly Bay;Southern and Sweetbay Magnolias;Red and Florida Maples;and Tupelo. ADDITIONAL MITIGATION REQUIRED (Mitigation Needed--Total) Legacy(non-oak) Legacy(oak)Oaks Palms Others Total New Trees Planted: 0 0 0 0 0 226 or Payment Into Tree Fund**: 0.00 0.00 0.00 0.00 0.00 $33,448.00 or A Combination of the Above** At least 50%of mitigation must be onsite. Additional Notes:Mitigation is 1 inch preserved or planted for every 2 inches removed.Tree Fund rate is$148.00 per inch. Status is in accordance with the City of Atlantic Beach code of ordinances in effect at the time of application submittal. APPROVED DENIED TPO ADMINISTRATOR DATE 01-A-Nrit, EXHIBIT C: TREE MITIGATION WORKSHEET s A City of Atlantic Beach Community Development Department 800 Seminole Road Atlantic Beach,FL 32233 FOR INTERNAL OFFICE USE ONLY A Ji3 vV (P)904-247-5800 PERMIT# List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B X..= "[]„_ „O„= ID DBH SPECIES COMMENTS removing preserving replacing 1 10" Palm 2 24" Hickory Legacy Tree" (Sec.23-33(f)(2)(c),AB Ord.Code) 3 11" Tree 4 16" Tree 5 11" Palm 6 10" Palm 7 10" Palm 8 10" Palm 9 9" Palm 10 11" Palm 11 9" Tree 12 10" Palm 13 11" Palm 14 10" Palm 15 10" Palm 16 8" Palm 17 14" Tree 18 8" Tree 19 14" Tree 20 10" Palm Total 266" DBH 02 TREE REMOVAL-EXHIBIT C:Tree Mitigation Worksheet 03.01.2018 WAR 60' fNO`4\.... Ai 8,413642rE. • .Tree #1: 10" Palm 410 1;•.:a. '.l 17,°:%i Tree #2: 24" Hickory Tree #14 Tree #13 Tree #3: 11" TreeTree #12 NIA I. Preserved Tree #4: 16" Tree Tree #15. h.. 4 Trees4,t X Tree #5: 11" Palm Tree #164eil —0 -- Tree #17 44411111____1_,,t6—.'Ei1_Tree #6: g::I. .Tree #7: " Palm Tree #1 Tree #19 Tree #18 Tree #2 Tree #8: 10" Palm Tree #20 1 a, t'• j f'1'4_ It Tree #9: 9" Palm Tree #6 Tree #10: 11" Palm r - . 0 . • : ARS' X—r-- Tree #3 Tree #11: 9" Tree f G. , 4' ° 4 x Tree #4 Tree #12: 10" Palm 0 v— STORY X -free #5 Tree #13: 11" Palm o pciii../.4 Tree #14: 10" Palm et A /G'E•/E i iv Tree #15: 10" Palm A .. 942 of tt ,o.?• air ; Nle' rh Tree #16: 8" Palm Ni, c: e: w' t '4 a •r e • Tree #17: 14" Tree 1\1 Ato - -• ":, Tree #8 .r 1 ` Tree #18: 8" Tree Tree #10 X Tree #19: 14" Tree Tree #7 qi Tree #20: 10" Palm Preserve• Tree #9 ib( C Trees o•117 11•211R 411. ree #11 w w ak w.~... . 0 M• Liar, EXHIBIT C: TREE MITIGATION WORKSHEET ç i-' , City of Atlantic Beach COMPOSITE EXHIBIT "B" Community Development Department 800 Seminole Road Atlantic Beach, FL 32233 RLA Inventory of Exempt Trees L01, v r ( P) 904-247-5800 per Section 163.045,Fla.Stat. List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B ID DBH SPECIES Removed EXEMPT COMMENTS Trees TREES 1 10" Palm Tree presented danger to persons/property at time of removal 2 24" Hickory Tree presented danger to persons/property at time of removal 3 11" Tree Tree presented danger to persons/property at time of removal 4 16" Tree Tree presented danger to persons/property at time of removal 5 11" Palm Tree presented danger to persons/property at time of removal 6 1 0" Palm Tree presented danger to persons/property at time of removal 7 10" Palm 8 10" Palm Tree presented danger to persons/property at time of removal 9 9" Palm Tree presented danger to persons/property at time of removal 10 11" Palm Tree presented danger to persons/property at time of removal 11 9" Tree 12 10" Palm 13 11" Palm 14 10" Palm Tree presented danger to persons/property at time of removal 15 10" Palm 16 8" Palm Tree presented danger to persons/property at time of removal 17 14" Tree Tree presented danger to persons/property at time of removal 18 8" Tree Tree presented danger to persons/property at time of removal 19 14" Tree Tree presented danger to persons/property at time of removal 20 10" Palm Tree presented danger to persons/property at time of removal Total 50" Total DBH based on the 5 removed trees that did not DBH qualify as Exempt Trees,per Sec. 163.045, Fla. Stat. 02 TREE REMOVAL-EXHIBIT C:Tree Mitigation Worksheet 03.01.2018 Tree#1: 11" Palm Tree#21: 13" Palm III N Tree#2: 5" Palm Tree #22: 13" Other Tree#3: 23" Other Tree#23: 12" Palm 0.: Tree#4: 9.5" Other Tree#24: 10" Other Tree#5: 10" Other Tree#25: 12" Palm Tree#6: 8" Other Tree #26: 11" Palm Tree#7: 8.5" Other Tree#27: 8" Other S Tree#8: 9" Other Tree #28: 6" Other Tree #9: 10" Other Tree#29: 9" Palm Tree#10: 7.5" Other Tree#30: 2" Other Concrete Tree #11: 8" Other Tree #31: 3.5 " Other Tree#12: 11" Other Tree#32: 3.5" Other SAik• Tree #13: 10" Other Tree#33: 12" Palm Tree#14: 10" Palm Tree #34: 12" Palm Tree#15: 12.5" Palm Tree#35: 12" Palm Tree#16: 14" Other Tree #36: 13" Other Tree#17: 8" Other Tree#37: 11" Palm Tree#18: 6" Other Tree#38: 11.5" Palm Tree#19: 11" Palm Tree#39: 12 Palm" Tree #20: 12.5" Palm Tree#40: 9.5" Palm Tree #41: 12.5" Palm Concrete Tree#42: 11" Palm Tree #43: 11" Palm 41111 e PRESERVED TREESPRESERVED St.,Atlantic Beach 11111 IIIII s!AN:jr, EXHIBIT C: TREE MITIGATION WORKSHEET s Cityn• of Atlantic Beach Community Development Department t }' 800 Seminole Road Atlantic Beach,FL 32233 6,3 (P)904-247-5800 PRESERVED TREE INVENTORY List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B ID DBH SPECIES PRESERVED COMMENTS TREES 1 11" Palm 2 5" Palm 3 23" Oak 4 9.5" Sweetgum 5 10" Sweetgum 6 8" Sweetgum 7 8.5" Sweetgum 8 9" Sweetgum 9 10" Sweetgum 10 7.5" Sweetgum 11 8" Sweetgum 12 11" Sweetgum 13 10" Sweetgum 14 10" Palm 15 12.5" Palm 16 14" Sweetgum 17 8" Sweetbay Magnolia 18 6" Sweetbay Magnolia 19 11" Palm 20 12.5" Palm 21 13" Palm 22 13" Sweetgum 23 12" Palm 24 10" Sweetgum 25 12" Palm 02 TREE REMOVAL-EXHIBIT C:Tree Mitigation Worksheet 03.01.2018 s si-AnEXHIBIT C: TREE MITIGATION WORKSHEET A City of Atlantic Beach Community Development Department5.. 800 Seminole Road Atlantic Beach,FL 32233 J,i P)904-247-5800 PRESERVED TREE INVENTORY List the species and diameter at breast height(dbh)of all trees identified on EXHIBIT B ID DBH SPECIES PRESERVED COMMENTS TREES 26 11" Palm 27 8" Sweetgum 28 6" Oak 29 9" Palm 30 3.5" Sweetbay Magnolia 31 3.5" Sweetbay Magnolia 32 12" Palm 33 12" Palm 34 12" Palm 35 13" Oak 36 11" Palm 37 11.5" Palm 38 12" Palm 39 9.5" Palm 40 12.5" Palm 41 11" Palm 42 11" Palm Total 433" DBH 02 TREE REMOVAL-EXHIBIT C:Tree Mitigation Worksheet 03.01.2018 CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7013 1710 0002 1691 9363 vs. Property Address: 342 19th St. Thomas Patrick Bourdon Atlantic Beach, FL 32233 342 19`h St. Atlantic Beach, FL 32233 Respondent. CASE NUMBER: 21-087 REAL ESTATE NUMBER: 172020 1242 LEGAL DESCRIPTION: 36-64 09-28-29E SELVA MARINA UNIT 12-A LO 5,ATLANTIC BEACH, FL ORDER ON CASE NO. 21-087 THIS CAUSE came for public hearing before the Code Enforcement Special Magistrate on November 4, 2021, and the Special Magistrate having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, issues findings of fact, conclusions of law, and orders as follows: FINDINGS OF FACT 1. Respondent owns the property located at 342 19th St., Atlantic Beach, Florida. 2. Notice of the hearing was continued from September 2, 2021, Code Enforcement hearing. 3. The Respondent was again represented by Mr. Karl Sanders. The Respondent was previously cited for violation of Sec. 23-51 (d) and Sec 23-46 for failing to make proper application for tree or vegetation removal permit and then failing to immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties as specified in Section 23-33. 4. The City of Atlantic Beach issued a stop work Order on August 3, 2020. A tree removal application was received on August 19, 2020. 5. Counsel for the Respondent previously stated that they are researching the issue of contesting the allegation of"inches" of the tree or money to contest the allegations. 6. The City of Atlantic Beach stated that they received the Respondent's Expert's findings for mitigation the evening of September 1, 2021, and therefore had not had the time to review the submission. As of November 4, 2021, the City of Atlantic Beach had reviewed the mitigation plan and stated the mitigation plan was not up to Code. A letter" was presented to the City of Atlantic Beach from an individual who was not a certified arborist (per the Code) and was insufficient as to any mitigation. 7. The City of Atlantic Beach followed up with correspondence to the Respondent on September 14, 2021, detailing the City's position about the prior Code requirements and the mitigation. 8. The City of Atlantic Beach stated that the "letter" contained a statement that the trees in question should be removed, but that was 400 days after the fact. The City of Atlantic Beach questions the determination of the individual who arrived at the conclusion (Mr. Michael Miller, not present) that a total of 1'14 palms plus a Hickory tree were a danger to the property. 9. Counsel for the Respondent cross examined the City of Atlantic Beach regarding pertinent portions of the tree Code surrounding the cumulative $10,000 permit limit Code 23-22 and 23-21). The Respondent questioned the "type" of permits required. Counsel for Respondent further presented evidence of RES 20-0226 (Exhibit #2) which details the type of permits. In this case electrical, plumbing, roofing and residential alterations totaling$136,000. The City of Atlantic Beach's position was that once the 10,000 limit is reached, the description of the permit is not required and that a tree permit is required. 10. Counsel for Respondent proceeded to present a history of the property and the tree removal and cited codes 23-21 (2) and(4) and 23-22(1) which define "major and minor development" and "legacy trees". Counsel also presented evidence of the Florida House of Representatives notes and a 2020 resulting statute (F.S. 163.045) (Exhibit 6). 11. The statute appears to bring into question whether it is retroactive and is a permit required prior to removal if at all. Numerous other exhibits were presented by Counsel for the Respondent regarding correspondence, photos between the City of Atlantic Beach and the Respondent's representatives. 12.The City of Atlantic Beach nor it's Counsel had reviewed these exhibits prior to the hearing. CONCLUSIONS OF LAW 13. The Respondent was provided proper notice of the violation and hearing and was represented by Counsel. The City of Atlantic Beach is to review the statutes and exhibits presented and further evidence or rebuttal will be placed on the January 6, 2022, agenda. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: 2 THAT the Respondent has provided numerous legal citations and statutes regarding the City of Atlantic Beach's position on trees removal and mitigation. The City of Atlantic Beach shall review the exhibits presented and if the matter is not rectified between the parties, the issue will be placed on the January 6, 2022, agenda for legal argument and determination of compliance. DONE AND ORDERED THIS 24TH DAY OF NOVEMBER 2021. CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ATTEST: 4G46,1,_, TH -Raccv• Kimberly M. wer, Records Clerk Suzann . W. Green, Sp cial Magistrate Executed this 24th day of November 2021. PLEASE NOTE:Florida Statutes § 162.11 requires that any appeal of this order must be filed in the circuit court for Duval County within 30 days of this Order's execution. 3 CODE ENFORCEMENT may, 4 I CITY OF ATLANTIC BEACH, FLORIDA NOTICE OF HEARING 12/9/2021 Case Number: 21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7017 0660 0000 3856 5361 ATLANTIC BEACH, FL 32233 Property Address: 342 19TH STREET ATLANTIC BEACH, FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on January 6, 2022 at 2:00 pm at Atlantic Beach City Hall, Commission Chamber, 800 Seminole Road, to answer and be heard on the following alleged violations on the property known as 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida. The City of Atlantic Beach adopted the International Property Maintenance Code and the Florida Building Code as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. International Property Maintenance Code/City Code of Ordinances 1. Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2) times the normal established application fee specified in section 23-26. In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2)Regulated trees removed in violation of this chapter shall be assessed at two (2) times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. STATEMENT OF CODE ENFORCEMENT OFFICER: A stop work order was posted on the property on August 3,2020 for removal of trees on the property prior to issuance of a tree removal permit. A tree removal application was received on 8/19/2020 but no mitigation plan has been approved. This case was heard before the Special Magistrate on November 4, 2021. The Magistrate ordered that the city of Atlantic Beach review the statues and exhibits presented at that hearing and the issue be placed on the January 6, 2022 agenda for further evidence and rebuttal. Page 1 of 2 If the violation is corrected and then recurs or if the violation was not corrected by the time specified for correction by the Code Enforcement Officer in the Notice of Violation that you received, the case may be presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. You have the right to obtain an attorney at your own expense and to present witnesses on your behalf. If you desire to have witnesses subpoenaed or if you have questions regarding the procedure,please contact the City Clerk's office within five days of the receipt of this notice at (904) 247-5821. Please note the presence of a court reporter for the purpose of insuring a verbatim record in the event an appeal should be secured at your expense. hereby swear and affirm that the above statement is true and accurate. s1 Iri . Code Enforcement Officer, City of Atlantic each ATTEST: Kim Flower, Records Clerk cc: Karl Sanders via email: kjsanders@kjslawpa.com Page 2 of 2 ENDER: COMPLETE Th..:,SECTION COMPLETE THIS SECTION ON DELIVERY Complete items 1,2,and a. A. Signature Print your name and address on the reverse X 0 Agent so that we can return the card to you.0 Address® Attach this card to the back of the mailpiece,B. Received by(Printed Name) C. Date of Deliver or on the front if space permits. 1. Article Addressed to: D. Is delivery address different from item 1? 0 Yes If YES,enter delivery address below: 0 No Qoardon Thomas i'ck CE - D-J - O -1 II I I I I)I'I 'I I II 11111111 I 1111111 111 3. Service Type 0 Adult Signature Priority Mail Express® Registered MailrM Adult Signature Restricted Delivery 0 Registered Mail Restrict Certified Mail® Delivery 9590 9402 5982 0062 6067 05 0 Certified Mail Restricted Delivery 0 Return Receipt for Collect on Delivery Merchandise 2. Article Number(Transfer from service label) Collect on Delivery Restricted Delivery 0 Signature Confirmation* Insured Mail 0 Signature Confirmation 017 0660 0000 3856 5361 Insured Mail Restricted Delivery over$500) Restricted Delivery x e.......4Qi 1 11.i..nnir ncn,,cnn nn nnn nnon rinnnec.fin Derr,...De..etni fill' 11: 4400....,A t i 4,... vir.' or 4 ipik P lii it II i specified for If c iolation was not corrected by the time spec may be the violation corrected and then recur: Jtice of Violation that you received,the case correcttionnbby the Code Enforcement Office 1`inlatinn has been corrected prior to the l CITY OF :'I.ANTIC BEC'EI;'FLORIDA^ Hp 1 gl NC:T" JF HEARING POSTED ON PROPERTY AND ATLANTIC BEAC CITY HALL DATE: 'oZ-7 o ) 12/9/2021 mber:21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7017 0660 0000 3856 5361 ATLANTIC BEACH,FL 32233 Property Address:342 19TH STREET ATLANTIC BEACH,FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on January r Z022 at be hear2: 00on the follpm at owing alleged violationantic Beach City s on thCommission p osi Chamber, 800 Seminole Road,to answer andof perty known as 342 19TH ST,36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach,Florida.TheCity as Atlantic Beach adopted the International Property Maintenance Code and the Florida BuildingpartoftheCityofAtlanticBeachCodeofOrdinancesinChapter6,Article II,Section 6-16. International Pro e ' Maintenance Code 1 Ci Code of Ordinances d)Sanctions for failure to obtain a permit.(1)Regulated trees or regulated vegetation 1, Sec.23-51. an after-the-fact permit,the fee for which shall removed) violation of this chapter ed re be two(2)times the normal established application fee specified in section 23-26.In addition,asaconditionofthepermit,the applicant shall immediately complete all remedial work as necessarytostabilizethesiteandmitigatealldamagetothesiteandadjacentproperties.(2)Regulated treesremovedinviolationofthischaptershallbeassessedattwo(2)times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or Vegetation removal permit as required by these provisions, or failure to implement any requirements orconditionsofatreeorvegetationremovalpermit,shall be deemed a violation of this chapter,andshallbesubjecttocodeenforcementproceduresassetforthwithinchapter2,article V,division 2ofthisMunicipalCodeofOrdinancesandanyotherremediesavailableunderapplicablelaw. STATEMENT OF CODE ENFORCEMENT OFFICER: A stop work order was posted on the property on August 3,2020 for removal of trees on the property prior to issuance of a tree removalPerrnit. A tree removal application was received on 8/19/2020 but no mitigation plan has been approved. This case was heard before the Special Magistrate on November 4,2021.The Magistrate ordered that the city of'Atlantic Beach review the statues and exhibits presented at that hearing and the issue be placed on the January 6,2022 agenda for further evidence and rebuttal. Page 1 ort t t It i l i 1{ t{ CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7017 0660 0000 3856 5385 vs. Property Address: 342 19th St. Thomas Patrick Bourdon Atlantic Beach, FL 32233 342 19th St. Atlantic Beach, FL 32233 Respondent. CASE NUMBER: 21-087 REAL ESTATE NUMBER: 172020 1242 LEGAL DESCRIPTION: 36-64 09-2S-29E SELVA MARINA UNIT 12-A LO 5,ATLANTIC BEACH, FL ORDER ON CASE No.21-087 THIS CAUSE came for public hearing before the Code Enforcement Special Magistrate on January 6, 2022, and the Special Magistrate having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, issues findings of fact, conclusions of law, and orders as follows: FINDINGS OF FACT 1. Respondent owns the property located at 342 19th St., Atlantic Beach, Florida. ("The Property"). 2. Notice of the hearing was continued from September 2, 2021, and the November 4, 2021, Code Enforcement hearings. 3. The Respondent was represented by Mr. Karl Sanders at the previous hearings and again at the January 6, 2022, hearing. The Respondent was previously cited for violation of Sec. 23-51 (d) and Sec 23-46 for failing to make proper application for tree or vegetation removal permit and then failing to immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties as specified in Section 23-33. 4. The City of Atlantic Beach issued a stop work Order on August 3, 2020, after the Respondent removed twenty (20) trees from the Property on or about August 1, 2020. A tree removal application was subsequently received on August 19, 2020, after removal of the trees and after the stop work Order was issued. 5. On or about August 26, 2020, the City issued its Tree Removal Calculations to the Respondent, finding that twenty (20) trees removed from the Property constituted regulated trees under the then effective Chapter 23, Code of Ordinances(the"Tree Code") and advised the Respondent that he could either plant new trees or do a combination of tree replacement and pay funds into a tree conservation fund as mitigation of the unpermitted tree removal. The Respondent stated that they were discussing a mitigation plan with the City. However, the Respondent failed to provide or implement a mitigation plan. This resulted in the City issuing a new Notice of Violation for violations of Sec. 23- 51(d) and Sec. 23-46. 6. During the September 2, 2021, hearing, Respondent's counsel contested the City's determinations regarding the Tree Removal Calculations and required mitigation plan alternatives.Also, during the November 4,2021,hearing,Respondent's counsel contested whether the construction work conducted at the Property was adequate to trigger the tree permit requirements set forth in the Tree Code and that, based on a written statement dated October 21, 2021, from Michael Miller, a registered landscape architect, the City was prohibited from requiring any permit pursuant to Section 163.045, Florida Statutes. Section 163.045 (1). Florida Statutes in part states "A local government may not require a notice,application,approval,permit,fee or mitigation for the pruning trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property." (Emphasis added). 7. The City of Atlantic Beach stated that Mr. Miller's written statement contained a statement that the trees in question should be removed. However, the evidence presented shows that Mr. Miller was engaged more the eleven months after the trees were removed from the Property and there was no evidence presented that supports the conclusion the Mr. Miller based his statement on personal knowledge or viewing of the Property. The City of Atlantic Beach questioned the determination of the individual who arrived at the conclusion (Mr. Michael Miller was not present and did not testify) that a total of 14 trees plus a Hickory tree were a danger to the property. 8. During the January 6, 2022, hearing, the City presented testimony from its Planning and Development Director, describing the provision in the Tree Code that triggers the necessity for a tree removal permit. Specifically, Sec. 23-21 which states: Major development on all existing developed sites having any structure or vehicle use areas where additions, renovations, upgrades or site changes are intended or anticipated within a two-year period of time when any such activity is valued at ten thousand dollars ($10,000.00)or more. When value is in question, determination shall be made by the building official. (Emphasis added). 2 9. The Director opined that none of the exemptions described in Sec. 23-22 of the Tree Code are applicable to the facts at hand. 10.The City Planning Director further testified that pursuant to the definitions of development" in Sec.23-8 of the Tree Code and in Sec. 24-7 of the Land Development Regulations, Development" includes the "removal of trees incidental to the development of land" (Sec. 23-8) and the carrying out of any building...operation" (Sec. 24-17) and the "reconstruction, alteration of the size, or material change to the external appearance of a structure on land" (Sec. 24-17). Further, Sec.24-17 defines "development permit" to include any"building permit...". (1- 6-2022 COAB Exhibit 4). 11.The Director, who stated she is responsible for interpreting both the Tree Code (Chapter 23) and the Land Development Regulations of the Code of Ordinances (Chapter 24), stated that some of the renovations and upgrades complete by the Respondent in 2020, consisting specifically of the construction of a new roof, new exterior windows, and tree removal, which all required building permits, constitute development as defined in the Tree Code and in the City's Land Development Regulations. Also, that the Respondent's own applications for the building permits for the referenced renovations and upgrades Composite Exhibits 2 and 3 by Respondent during the November 4, 2021, hearing) show that the value of the work was over $10,000.00 (the roof alone was at $13,000.00); and that as a result, the Respondent's tree removal activities did require a tree removal permit under Sec 23-21 (2) of the City's Tree Code. 12.The Respondent during cross-examination of the Director argued that the renovation and upgrades consisting of the roof replacement and exterior window replacement did not meet the definitions of"development" primarily because of the conjunctive word "and" in the definition contained in Sec. 24-17 a) Development means the carrying out of any building or mining operation or the making of any material change in the use or appearance of any structure or land and the dividing of land into three (3) or more parcels. 13.The Respondent further stated that the conjunctive "and" requires that any of the foregoing descriptions of development in the definition will not constitute "development" and (continuing to cite language from Sec. 24-16(1)) stating that none of the activities connected by "or" in the first part of the definition constitute "development" unless the activity is also accompanied at the time with the division of land into three or more parcels. Therefore, since there was no division of land into three parts there was no development" and consequently no tree permit required. 14. Respondent also contends that because no site plan was required by the City in order to obtain the permits for roof replacement or for the exterior windows, the work does not meet the definition of"development" found in the Tree Code in Sec. 23-8. On redirect, 3 the Director concluded that not all "development" as defined requires the approval of a site plan. CONCLUSIONS OF LAW 15.The Respondent was provided proper notice of the violation and hearings and was represented by Counsel. 16. Facts presented to the Special Magistrate require the analysis of whether the renovations and upgrades on the Property constitute a "development" and if so, whether the answer to that question then triggers Florida Statute 163.045. 17. Considering the facts and evidence presented and contained in this Order, the upgrades and renovations consisting of a new roof, and new exterior windows in an amount valued over $10,000.00 constitute "development" as defined in the City's Code of Ordinances. Also, an examination of the wording of City Ordinance 24-17 leads to a logical conclusion that "development" means (1) the carrying out of any building or mining operation, (2) the making of any material change in the use or appearance of any structure or land and 3)the dividing of land into three(3)or more parcels.Any of those three conditions would constitute a "development". It does not follow that the meaning of"and" requires every piece of land needs to be divided into three parcels in order to constitute a"development". Therefore, a tree removal permit was required prior to removal of the trees. 18.Furthermore, if the determination was the renovations and upgrades did not constitute development", the plain language of Florida Statute 163.045 required the documentation to say a tree presents a danger to person or property. The wording of the statute leads to the conclusion that the arborist or certified landscape architect must have observed the trees personally or had some other direct personal knowledge prior to removal regarding the condition of or risk posed by the tree(s). In this case, no such evidence was presented, and Mr. Miller was not present to testify or be available for cross examination. The Declaration or written statement is vague and unclear as to whom initially advised the Respondent as to the condition of the trees. Therefore, even if a "development" was not found, the requirements necessary to make Section 163.045 Florida Statutes applicable to these facts, have not been met. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: A. The Respondent shall comply with the Tree Code as set forth in Sec. 23-33 withing sixty 60) days from the date of execution of this Order, by submitting a mitigation plan to address the removed trees and the trunk inches either in the form of a tree replacement plan or in the form of a combination of tree replacement and payment in lieu of replacement, pursuant to Sec. 23-37, in accordance with the City's calculation set forth in 4 the Tree Removal Calculations issued by the City on or about August 26, 2020 previously submitted as Composite Exhibit 4 from the November 4, 2021 hearing. B. If any payment in lieu of replacement is made a part of Respondent's mitigation plan, Respondent must make such payment in full no later than seventy-five(75) days from the date of execution of this Order. C. All trees included in Respondent's mitigation plan must be planted with One hundred and twenty (120) days from the date of execution of this Order and the Respondent must comply with the requirements of Sec. 23-34, Maintenance and Monitoring, and all other applicable provision of the Tree Code. D. Should the Respondent fail to comply with sections A, B and C of this Order, a fine of two hundred and fifty dollars ($250.00) per day and two hundred and fifty dollars 250.00) every day thereafter the violation continues to exist shall be levied. Respondent shall also pay any administrative costs to the City incurred in prosecuting this case. E. The Respondent is responsible for contacting the City of Atlantic Beach Code Enforcement Officer and obtaining all inspections of compliance. F. Failure to timely pay all accumulated fines will result in a lien being recorde3d with the clerk of the Circuit Court for Duval County for the total assessment plus costs incurred for the filing of the lien. All lien amounts are payable at an interest rate of 4.25% per annum from the date of the certification until paid. DONE AND ORDERED THIS 2:7 DAY OF JANUARY 2022. CITY OF ATLANTIC BEACH,FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ATTEST: 71/..t,‘"4/1.,A)///;&/`---- Ladayija Nichols, Records Clerk Suzann W. Green, Special Magistrate Executed this2-1 day of January 2022. PLEASE NOTE: Florida Statutes § 162.11 requires that any appeal of this Order must be filed in the circuit court for Duval County within 30 days of this Order's execution. 5 CODE ENFORCEMENT PROCEEDING BEFORE THE CITY OF ATLANTIC BEACH SPECIAL MAGISTRATE CASE NO.: 21-087 PARCEL ID NO: 172020-1242 ADDRESS: 342 19TH St., Atlantic Beach, FL CITY OF ATLANTIC BEACH, a municipal corporation, Petitioner, vs. THOMAS BOURDON, Respondent. RESPONDENT'S REQUEST FOR REHEARING Respondent, Thomas Bourdon, hereby files this Request for Rehearing of the Special Magistrate's Order on Case No. 21-087, dated January 27, 2022 (the "Order"). In support of this Request, Respondent states as follows: 1. Per Section 2-148 of the Ordinance Code for the City of Atlantic Beach (the City"), a Request for Rehearing of a Special Magistrate's Order in a code enforcement proceeding initiated by the City may be filed with the city clerk's office within ten days of the execution of the order to be appealed. 2. Once filed, a Request for Rehearing shall be scheduled for the next available hearing date by the Special Magistrate. 3. Respondent respectfully submits that the above-referenced Order should be immediately vacated and scheduled for rehearing at the next available hearing date, as: 1 a. There exists new and material evidence which, if introduced at the hearing, would allegedly have changed the Special Magistrate's decision and could not with reasonable diligence have been discovered before and produced at the initial hearing; and b. Given this evidence,the Order issued is contrary to the law and evidence previously presented for the Special Magistrate's consideration in resolving the issues at hand. 4. In particular, new and material evidence has been discovered which directly contradicts the new testimony and new legal arguments presented by the City at the code enforcement hearing on January 6, 2022, with respect to the issues of (1) whether Respondent's building permit activities constituted "development" as that term is defined by the City's Tree Ordinance, and (2) whether Section 163.045, Fla. Stat., preempts the City's prior authority to regulate matters relating to trees located on residential properties. 5. Contrary to the City's new testimony at the hearing on January 6, 2022, the City's Ordinance Code does, in fact, require a site plan "for all development and redevelopment." See Sec. 24-69, City Ord. Code., attached hereto. 6. Contrary to the City's new legal position and new legal arguments presented at the hearing on January 6, 2022, the City — through its elected City Commissioners — has previously declared — by way of a written Resolution adopted on February 8, 2021 subsequent to Respondent's removal of trees from his residential property) — that Section 163.045 does, in fact, preempt "local regulation affecting trees located on residential properties." See Resolution No. 21-08, attached hereto. WHEREFORE, Respondent respectfully requests that the Special Magistrate vacate the above-referenced Order and scheduled this matter for rehearing. 2 Respectfully submitted on this 7th day of February, 2022. KJS LAW, P.A. By: /s/Karl J. Sanders KARL.J. SANDERS,EsQ. Florida Bar No. 28452 1102 Al N., Suite 203 Ponte Vedra Beach, FL 33401 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.corn Attorney for Respondent 3 RESOLUTION NO.21-08 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF ATLANTIC BEACH,FLORIDA,SUPPORTING FLORIDA SENATE BILL 596 AND COMPANION HOUSE BILL 6023,WHICH WOULD REPEAL FLORIDA STATUTE 163.045 TO ENABLE LOCAL GOVERNMENTS TO REGULATE MATTERS RELATING TO TREES LOCATED ON RESIDENTIAL PROPERTIES; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS,Florida Senator Linda Stewart and Representative Anna V. Eskamani are leading the effort to repeal a state preemption of local ordinances related to trees located on residential properties;and WHEREAS,Senator Stewart's Senate Bill 596 and Representative Eskamani's House Bill 6023 would repeal Section 163.045,Florida Statues,and restore the rights of local governments related to pruning,trimming,or removal of trees on residential property;and WHEREAS,Section 163.045,adopted by the Florida Legislature in 2019,advocated a way to protect residential property owners' rights,and arose after local controversies occurred in several places in the state related to removal and trimming of trees;and WHEREAS,the City of Atlantic Beach and many other Florida communities utilize tree- protection codes to define their communities' character and standards of life,and local governments should be restored local controls to protect these invaluable natural resources;and WHEREAS,local county and city governments are more closely connected to their residents' wishes and needs than the state government,and as such,should be restored the ability to adopt regulations that reflect the values of their respective communities and the desires of their residents; and WHEREAS,the City of Atlantic Beach seeks to preserve and protect home rule authority for Atlantic Beach and local governments. NOW THEREFORE, be it resolved by the City Commission of the City of Atlantic Beach, Florida: SECTION 1. That the City Commission of the City of Atlantic Beach supports Senate Bill 596 and House Bill 6023,which would repeal Section 163.045,Florida Statutes, preempting local regulation affecting trees located on residential properties. SECTION 2.That the City Commission directs the City Clerk to transmit a copy of this Resolution to the Florida Governor,the City of Jacksonville,the Florida League of Cities,and the Duval County delegation of the Florida Legislature, for distribution. SECTION 3.That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. SECTION 4. This Resolution shall take effect immediately upon its passage and adoption. PASSED AND ADOPTED by the City Commission of the City of Atlantic Beach,this 8th day of February, 2021. 6-(i/t717/ E -n Glasser,Mayor Attest: OvOyvycQ, !/4-14r-te- Donna L. Bartle,City Clerk Approved as to form and correctness: B nna n, City Attorney Resolution No. 21-08 page 2 of 2 Sec. 24-69. - Development review and issuance of development permits. a) Purpose. The purpose of this section shall be to establish procedures for the submittal, review and approval of construction plans, and the issuance of development permits. b) Procedures. Plans prepared according to the requirements set forth within this section shall be submitted to the building department for distribution, review and comment from appropriate departments of the city. Plans may be denied if they do not meet the intent or the requirements of this section and this chapter and the Florida Building Code. c) Site development plan required. A site development plan, drawn at a clear and legible scale, shall be required for all development and redevelopment, other than interior renovations and fences, in accordance with the following provisions: 1) Single-family, two-family (duplex) or two-unit townhouse and exterior structural alterations or additions thereto, including swimming pools and accessory structures. A certified survey and site development plan accompanied by the required application form and review fee as established by the city commission shall be submitted to the building department. Each of the following items shall be addressed: a. All driveways and parking. b. All existing and proposed structures. c. Setbacks, any platted building restriction lines and height of buildings. d. Any jurisdictional wetlands or coastal construction control line, water bodies, any required buffers or significant environmental features. e. A pre-construction topographical survey. f. A summary table showing proposed impervious surface area, including all structures, walkways, driveways, parking and equipment pads and any other surface defined as impervious in section 24-17 and conceptual stormwater requirements in accordance with section 24-68. g. Other information as may be appropriate for the purposes of preliminary review. 2) Multi-family, commercial and industrial uses and exterior structural alterations or additions thereto. A certified survey and preliminary site development plan accompanied by the required application form and review fee as established by the city commission shall be submitted the building department. The site development plan shall depict the entire tract proposed for development and shall be drawn at a scale sufficient to depict all required information in a clear and legible manner. Each of the following items shall be provided as appropriate to the project and as further set forth within the application for a particular form of development permit as provided by the building official: a. Project boundary with bearings and distances. b. Legal description, including property size. c. Location of all structures, temporary and permanent, including setbacks, building height, number of stories and square footage (identify any existing structures and uses). d. Project layout, including roadways, any easements, parking areas, driveway connections, sidewalks, vehicular and pedestrian circulation. e. Existing driveways and roadways within three hundred (300) feet of project boundary. f. Existing and proposed right-of-way improvements. g. Conceptual stormwater management plan addressing drainage patterns, retention/detention areas, provisions for utilities, including a pre-construction topographical survey, pursuant to section 24-68. h. Environmental features, including any jurisdictional wetlands, CCCL, natural water bodies, open space, buffers and vegetation preservation areas. For projects not meeting the thresholds requiring an environmental resource permit from the St.John's River Water Management District, provide conceptual plans showing how project intends to meet the stormwater retention and treatment requirements of section 24- 68. i. General notes shall include: total project area; impervious surface area; building square footage separated by type of use(s) if applicable; parking calculations; project phasing; zoning district classification and any conditions or restrictions. j. Other information as may be appropriate for the purposes of preliminary review. d) Review and approval of development permit applications. An application for a development permit shall include a development plan (consisting of the items described in section 24-69(c) above) and all required information including construction plans that demonstrate compliance with all applicable federal, state, and local land development regulations and permitting requirements. Completed applications shall be submitted to the building department for distribution and reviewed by the appropriate city departments. Upon approval of construction plans and development plans by reviewing departments and payment of required fees, development permits may be issued, and construction plans shall be released for construction. e) [Failure to respond.] In the case that an applicant fails to make a good faith effort to timely respond to requests for additional information after any application for a development permit is submitted, plans shall remain valid for a period of six (6) months, after the date of latest comments by the city, after which time new plans and a new review fee shall be required. f) Expiration of approved of construction plans. Approved construction plans shall be claimed within ninety (90) days of notice of approval or completed comments, or said plans shall be considered to have expired. Upon expiration, a new submittal and review with applicable fees shall be required. Development review comments shall expire six (6) months from the date that comments are provided to the applicant. g) Expiration of development permits. Development permits shall expire on the six-month anniversary of the date such permits were issued unless development has commenced and continued in good faith. Commencement shall mean the issuance of a valid building permit and the development permit shall remain active along with the building permit. Failure to maintain an active building permit will cause the development permit to expire. h) Retention of expired plans. Any construction plans and supporting documents which have expired shall be discarded following effort to notify the applicant by the building department. It shall not be the responsibility of the city to store or retain expired construction plans. i) Changes to approved plans. Applicants must submit to the city any and all proposed changes to approved plans including, but not limited to, changes required by other regulatory agencies such as the St.John's River Water Management District, Florida Department of Environmental Protection or Florida Department of Transportation. Failure to provide changes to the city for review may result in a stop work order being issued if construction deviates from the approved plans on file with the city. Ord. No. 90-10-212, § 2(Exh. A), 3-8-10; Ord. No. 90-19-240 , § 3(Exh. A), 7-8-19) CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7013 1710 0002 1691 8915 vs. Property Address: 342 19th St. Thomas Patrick Bourdon Atlantic Beach,FL 32233 342 19th St. Atlantic Beach, FL 32233 Respondent. CASE NUMBER:21-087 REAL ESTATE NUMBER: 172020 1242 LEGAL DESCRIPTION:36-64 09-2S-29E SELVA MARINA UNIT 12-A LO 5,ATLANTIC BEACH, FL ORDER ON CASE No.21-087 THIS CAUSE came for public hearing on the Respondent's Request for Rehearing before the Code Enforcement Special Magistrate on February 16, 2022, and the Special Magistrate having heard arguments respective to all appropriate matters, and orders as follows: FINDINGS OF FACT 1. Respondent owns the property located at 342 19th St., Atlantic Beach, Florida. ("The Property"). 2. Notice of the hearing was coordinated by the Petitioner and Respondent after the Special Magistrate's ruling from the January 6, 2022, Code Enforcement hearing in this cause resulting in the Order dated January 27,2022. 3. The Respondent was represented by Mr. Karl Sanders at the previous hearings and again at the February 16,2022, hearing. The City of Atlantic Beach was represented by the City Attorney, Brenna Durden. 4. Pursuant to Section 2-148 of the Code of the City of Atlantic Beach, the Respondent filed a Request for Rehearing of the Order dated January 27,2022 stating there now exists new and material evidence which if introduced at the hearing would have changed the Special Magistrate's decision and could not with reasonable diligence have been discovered which would render the Order issued as contrary to the law and evidence previously presented for the Special Magistrate's consideration in resolving the issues at hand. CONCLUSIONS OF LAW 5. The Special Magistrate found that nothing new or material presented constituted evidence that was contrary to the law as stated in the January 27, 2022, Order. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: A. The Request for Rehearing is DENIED. DONE AND ORDERED THIS 1 g DAY OF FEBRUARY 2022. CITY OF ATLANTIC BEACH,FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ATTEST: 006vrynar V64,tee, onA, Donna Bartle, City Clerk Suz W. Green, Special Magistrate Executed this (y,day of February 2022. PLEASE NOTE:Florida Statutes § 162.11 requires that any appeal of this Order must be filed in the circuit court for Duval County within 30 days of this Order's execution. 2 Irizarry,Angela From: Bartle, Donna Sent: Tuesday, March 1, 2022 4:33 PM To:Irizarry,Angela;Askew, Amanda Subject: FW: NOTICE OF APPEAL -- Code Enforcement Case No. 21-087 (City of Atlantic Beach v. Thomas Bourdon) Attachments: NOTICE OF APPEAL (City of Atlantic Beach) -- as filed.pdf FYI. Donna From: Karl J. Sanders [mailto:kjsanders@kjslawpa.com] Sent: Monday, February 28, 2022 6:52 PM To: Bartle, Donna <dbartle@coab.us>; Flower, Kimberly M. <kflower@coab.us>; Suzanne Green suzannewgreenpa@gmail.com>; Brenna Malouf Durden <bdurden@llw-law.com> Subject: NOTICE OF APPEAL--Code Enforcement Case No. 21-087 (City of Atlantic Beach v.Thomas Bourdon) Attached for filing with the clerk for the City of Atlantic Beach Code Enforcement Special Magistrate is Respondent's Notice of Appeal of the Special Magistrate's Order on Case No. 21-087, rendered on January 27, 2022. Best regards, Karl Karl 7. Sanders, Esq. iç kjsanders(&kjslawDa.com 904.868.7929 I Office LA /p„ 561.386.1216 I Mobile 1 IN THE CITY OF ATLANTIC BEACH, FLORIDA, CODE ENFORCEMENT SPECIAL MAGISTRATE CASE NO.: 21-087 THOMAS BOURDON, Respondent/Appellant, vs. CITY OF ATLANTIC BEACH, a municipal corporation, Petitioner/Appellee. NOTICE OF APPEAL NOTICE IS GIVEN that, pursuant to Fla. R. App. P. 9.030(c)(1)(A), 9.110(a)(1), 9.110(c) and § 162.11, Fla. Stat(2021), Respondent/Appellant, Thomas Bourdon, appeals to the Fourth Judicial Circuit Court, in and for Duval County, Florida, the City of Atlantic Beach Code Enforcement Special Magistrate Order on Case No. 21-087, rendered on January 27, 2022. A conformed copy of the Order is attached hereto. The nature of the order being appealed is a final administrative order ruling upon a code enforcement citation issued by the City of Atlantic Beach for alleged violations of Sec. 23-51(d) and Sec. 23-46 of the City's Tree Protection Code. Respectfully submitted on this 28th day of February, 2022. KJS LAW, P.A. By: /s/Karl J. Sanders KARL J. SANDERS, ESQ. Florida Bar No. 28452 1102 A l A N., Suite 203 Ponte Vedra Beach, FL 32082 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.com Attorney for Respondent/Appellant CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7017 0660 0000 3856 5385 vs. Property Address: 342 19th St. Thomas Patrick Bourdon Atlantic Beach, FL 32233 342 19th St. Atlantic Beach, FL 32233 Respondent. CASE NUMBER:21-087 REAL ESTATE NUMBER: 172020 1242 LEGAL DESCRIPTION:36-64 09-2S-29E SELVA MARINA UNIT 12-A LO 5,ATLANTIC BEACH, FL ORDER ON CASE No.21-087 THIS CAUSE came for public hearing before the Code Enforcement Special Magistrate on January 6, 2022, and the Special Magistrate having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters,issues findings of fact,conclusions of law, and orders as follows: FINDINGS OF FACT 1. Respondent owns the property located at 342 19th St., Atlantic Beach, Florida. ("The Property"). 2. Notice of the hearing was continued from September 2, 2021, and the November 4, 2021, Code Enforcement hearings. 3. The Respondent was represented by Mr. Karl Sanders at the previous hearings and again at the January 6, 2022, hearing. The Respondent was previously cited for violation of Sec. 23-51 (d) and Sec 23-46 for failing to make proper application for tree or vegetation removal permit and then failing to immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties as specified in Section 23-33. 4. The City of Atlantic Beach issued a stop work Order on August 3, 2020, after the Respondent removed twenty (20) trees from the Property on or about August 1, 2020. A tree removal application was subsequently received on August 19, 2020, after removal of the trees and after the stop work Order was issued. 5. On or about August 26, 2020, the City issued its Tree Removal Calculations to the Respondent, finding that twenty (20) trees removed from the Property constituted regulated trees under the then effective Chapter 23, Code of Ordinances(the"Tree Code") and advised the Respondent that he could either plant new trees or do a combination of tree replacement and pay funds into a tree conservation fund as mitigation of the unpermitted tree removal. The Respondent stated that they were discussing a mitigation plan with the City. However, the Respondent failed to provide or implement a mitigation plan. This resulted in the City issuing a new Notice of Violation for violations of Sec. 23- 51(d) and Sec. 23-46. 6. During the September 2, 2021, hearing, Respondent's counsel contested the City's determinations regarding the Tree Removal Calculations and required mitigation plan alternatives.Also, during the November 4,2021,hearing,Respondent's counsel contested whether the construction work conducted at the Property was adequate to trigger the tree permit requirements set forth in the Tree Code and that, based on a written statement dated October 21, 2021, from Michael Miller, a registered landscape architect, the City was prohibited from requiring any permit pursuant to Section 163.045, Florida Statutes. Section 163.045 (1).Florida Statutes in part states "A local government may not require a notice,application,approval,permit,fee or mitigation for the pruning trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property." (Emphasis added). 7. The City of Atlantic Beach stated that Mr. Miller's written statement contained a statement that the trees in question should be removed. However, the evidence presented shows that Mr. Miller was engaged more the eleven months after the trees were removed from the Property and there was no evidence presented that supports the conclusion the Mr. Miller based his statement on personal knowledge or viewing of the Property. The City of Atlantic Beach questioned the determination of the individual who arrived at the conclusion (Mr. Michael Miller was not present and did not testify)that a total of 14 trees plus a Hickory tree were a danger to the property. 8. During the January 6, 2022, hearing, the City presented testimony from its Planning and Development Director, describing the provision in the Tree Code that triggers the necessity for a tree removal permit. Specifically, Sec. 23-21 which states: Major development on all existing developed sites having any structure or vehicle use areas where additions, renovations, upgrades or site changes are intended or anticipated within a two-year period of time when any such activity is valued at ten thousand dollars($10,000.00) or more. When value is in question, determination shall be made by the building official. (Emphasis added). 2 9. The Director opined that none of the exemptions described in Sec. 23-22 of the Tree Code are applicable to the facts at hand. 10.The City Planning Director further testified that pursuant to the definitions of development" in Sec.23-8 of the Tree Code and in Sec. 24-7 of the Land Development Regulations, Development" includes the "removal of trees incidental to the development of land" (Sec. 23-8) and the carrying out of any building...operation" (Sec. 24-17)and the "reconstruction, alteration of the size, or material change to the external appearance of a structure on land" (Sec. 24-17). Further, Sec.24-17 defines "development permit"to include any"building permit...".(1- 6-2022 COAB Exhibit 4). 11.The Director, who stated she is responsible for interpreting both the Tree Code (Chapter 23) and the Land Development Regulations of the Code of Ordinances (Chapter 24), stated that some of the renovations and upgrades complete by the Respondent in 2020, consisting specifically of the construction of a new roof, new exterior windows, and tree removal, which all required building permits, constitute development as defined in the Tree Code and in the City's Land Development Regulations. Also, that the Respondent's own applications for the building permits for the referenced renovations and upgrades Composite Exhibits 2 and 3 by Respondent during the November 4,2021, hearing)show that the value of the work was over $10,000.00 (the roof alone was at $13,000.00); and that as a result, the Respondent's tree removal activities did require a tree removal permit under Sec 23-21 (2) of the City's Tree Code. 12. The Respondent during cross-examination of the Director argued that the renovation and upgrades consisting of the roof replacement and exterior window replacement did not meet the definitions of"development" primarily because of the conjunctive word "and" in the definition contained in Sec. 24-17 a) Development means the carrying out of any building or mining operation or the making of any material change in the use or appearance of any structure or land and the dividing of land into three(3) or more parcels. 13. The Respondent further stated that the conjunctive "and" requires that any of the foregoing descriptions of development in the definition will not constitute "development" and (continuing to cite language from Sec. 24-16(f)) stating that none of the activities connected by "or" in the first part of the definition constitute "development" unless the activity is also accompanied at the time with the division of land into three or more parcels. Therefore, since there was no division of land into three parts there was no development" and consequently no tree permit required. 14. Respondent also contends that because no site plan was required by the City in order to obtain the permits for roof replacement or for the exterior windows, the work does not meet the definition of"development" found in the Tree Code in Sec. 23-8. On redirect, 3 the Director concluded that not all "development" as defined requires the approval of a site plan. CONCLUSIONS OF LAW 15. The Respondent was provided proper notice of the violation and hearings and was represented by Counsel. 16. Facts presented to the Special Magistrate require the analysis of whether the renovations and upgrades on the Property constitute a "development" and if so, whether the answer to that question then triggers Florida Statute 163.045. 17. Considering the facts and evidence presented and contained in this Order, the upgrades and renovations consisting of a new roof, and new exterior windows in an amount valued over $10,000.00 constitute "development" as defined in the City's Code of Ordinances. Also, an examination of the wording of City Ordinance 24-17 leads to a logical conclusion that "development" means (1) the carrying out of any building or mining operation, (2) the making of any material change in the use or appearance of any structure or land and 3)the dividing of land into three(3)or more parcels.Any of those three conditions would constitute a "development". It does not follow that the meaning of"and" requires every piece of land needs to be divided into three parcels in order to constitute a "development". Therefore, a tree removal permit was required prior to removal of the trees. 18. Furthermore, if the determination was the renovations and upgrades did not constitute development", the plain language of Florida Statute 163.045 required the documentation to say a tree presents a danger to person or property. The wording of the statute leads to the conclusion that the arborist or certified landscape architect must have observed the trees personally or had some other direct personal knowledge prior to removal regarding the condition of or risk posed by the tree(s). In this case, no such evidence was presented, and Mr. Miller was not present to testify or be available for cross examination. The Declaration or written statement is vague and unclear as to whom initially advised the Respondent as to the condition of the trees. Therefore, even if a "development" was not found, the requirements necessary to make Section 163.045 Florida Statutes applicable to these facts, have not been met. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: A. The Respondent shall comply with the Tree Code as set forth in Sec. 23-33 withing sixty 60) days from the date of execution of this Order, by submitting a mitigation plan to address the removed trees and the trunk inches either in the form of a tree replacement plan or in the form of a combination of tree replacement and payment in lieu of replacement, pursuant to Sec. 23-37, in accordance with the City's calculation set forth in 4 the Tree Removal Calculations issued by the City on or about August 26, 2020 previously submitted as Composite Exhibit 4 from the November 4, 2021 hearing. B. If any payment in lieu of replacement is made a part of Respondent's mitigation plan, Respondent must make such payment in full no later than seventy-five(75)days from the date of execution of this Order. C. All trees included in Respondent's mitigation plan must be planted with One hundred and twenty (120) days from the date of execution of this Order and the Respondent must comply with the requirements of Sec. 23-34, Maintenance and Monitoring, and all other applicable provision of the Tree Code. D. Should the Respondent fail to comply with sections A, B and C of this Order, a fine of two hundred and fifty dollars ($250.00) per day and two hundred and fifty dollars 250.00)every day thereafter the violation continues to exist shall be levied. Respondent shall also pay any administrative costs to the City incurred in prosecuting this case. E. The Respondent is responsible for contacting the City of Atlantic Beach Code Enforcement Officer and obtaining all inspections of compliance. F. Failure to timely pay all accumulated fines will result in a lien being recorde3d with the clerk of the Circuit Court for Duval County for the total assessment plus costs incurred for the filing of the lien. All lien amounts are payable at an interest rate of 4.25% per annum from the date of the certification until paid. DONE AND ORDERED THIS 2.1 DAY OF JANUARY 2022. CITY OF ATLANTIC BEACH,FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ATTEST: 2/1/1(lAt(-----_- Ladayija Nichols, Records Clerk Suzann W. Green, Special Magistrate Executed this -1 day of January 2022. PLEASE NOTE:Florida Statutes § 162.11 requires that any appeal of this Order must be filed in the circuit court for Duval County within 30 days of this Order's execution. 5 ENDER: COMPLETE THIS SECTION COMPIE'TE THIS SECTION ON DELIVERY Complete items 1,2,and 3. y'e A.Si• e Print your name and address on the reverse X 0 Agent so that we can return the card to you. 0 Addresse Attach this card to the back of the mailpiece,B. Received by(Printed Name) C. Date of Deliver or on the front if space permits. KM. U-11/- 0 ra I Z 23?; 1. Article Addressed to: D. Is delivery address different from item 1? 0 Yes If YES,enter delivery address below: 0 No c.Dokr-clon Se_ 2i - 01 1111111111111111111111111111111111111111IIIIIIllIIIIIIllIIIIIIIIIIIIIIIIII 3. Service Type Cl Adult Signature Priority Mail Express® 0 Registered MaiITM Adult Signature Restricted Delivery 0 Registered Mail Restrict 9590 9402 3831 8032 5658 64 0 Certified Mail® Delivery Cl Certified Mail Restricted Delivery 0 Return Receipt for Collect on Delivery Merchandise 2. ArtinIA Ni imhwr ITrancfir fmm cPrvir•.a/ahell Cl Collect on Delivery Restricted Delivery 0 Signature ConfirmationT sured Mail 0 Signature Confirmation 7 017 0660 0000 3856 5385 sures Mail Restricted Delivery Restricted Delivery ver$500) PS Form 3811.July 2015 PSN 7530-02-000-9053 Domestic Return Receipt 0Li-V..1 143 CODE ENFORCEMENT CITY OF ATLANTIC BEACH, FLORIDA 1,a NOTICE OF HEARING 4/14/2022 Case Number: 21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7013 1710 0002 1691 9301 ATLANTIC BEACH, FL 32233 Property Address: 342 19TH STREET ATLANTIC BEACH, FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on May 5,2022 at 2:00 pm at Atlantic Beach City Hall, Commission Chamber, 800 Seminole Road,to answer and be heard on the following alleged violations on the property known as 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida. The City of Atlantic Beach adopted the International Property Maintenance Code and the Florida Building Code as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. International Pronerty Maintenance Code/City Code of Ordinances 1. Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2)times the normal established application fee specified in section 23-26. In addition, as a condition of the permit, the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2)Regulated trees removed in violation of this chapter shall be assessed at two (2)times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. STATEMENT OF CODE ENFORCEMENT OFFICER: At the 1/6/2022 hearing the Respondent was found in violation. In the written order dated 1/27/2022,the Respondent was ordered to comply with the City's tree code within 60 days from the date of the order by submitting a mitigation plan. The Respondent was also ordered to make any proposed payment as part of that mitigation plan within 75 days of the date of the order. As of today, the City has not received a mitigation plan or payment in lieu of any part of the mitigation. A request for rehearing on this case was denied in a written order dated 2/18/2022 Page 1 of 2 On 2/28/2022 Karl Sanders, attorney for Mr. Bourdon, submitted an appeal of this case to the Fourth Judicial Circuit Court. No stay of enforcement has been ordered for this case. If the violation is corrected and then recurs or if the violation was not corrected by the time specified for correction by the Code Enforcement Officer in the Notice of Violation that you received, the case may be presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. You have the right to obtain an attorney at your own expense and to present witnesses on your behalf. If you desire to have witnesses subpoenaed or if you have questions regarding the procedure, please contact the City Clerk's office within five days of the receipt of this notice at (904) 247-5821. Please note the presence of a court reporter for the purpose of insuring a verbatim record in the event an appeal should be secured at your expense. I, V- \SQ.CT hereby swear and affirm that the above statement true , d acc .. e. gefr Iriz. ,11. Co•e Enforce nt Officer, City of : anti• each ATTEST: Vanessa Angers, Records Clerk cc: Karl Sanders via email: kjsanders@kjslawpa.com Page 2 of 2 g CITY OF ATLANTIC BEACH 800 SEMINOLE ROAD O'''''p, ATLANTIC BEACH, FL 32233 f PHONE (904) 247-5855 POSTING AFFIDAVIT CASE #21-087 Pursuant to Chapi ‘:da a It ,: .:sitid Sec. 2-147, City of Atlantic Beach City Code of Ordinances, I, rcement Officer,City of Atlantic Beach, hereby affirm a Notice of Violation, a copy of which is attached,was posted at the following locations: 1) Date Posted: 4/25/2022 Location: 342 19th Street Atlantic Beach, Florida 32233 2) Date Posted: 4/25/2022 Location: Atlantic Beach City Hall 800 Seminole Road Atlantic Beach, FL 32233 1 IL 1• Angela Iriza , Code Enfo r , e '` County of Duval State of Florida The foregoing Affidavit was acknowledged before me this 25 day of ri 2022, by Angela Irizarry, who is personally known to me as Code Enforcement Officer for the City of Atlantic Beach. Person taking acknowledgement: 1,e0r,/,14. Ji/sitt,z& Notary Public, State of Florida v.. - DONNA L BARTLE a = MY COMMISSION I NH 085656 7';',— .-EXPIRES:May 14,2025 f FW,.? BOIk Thu Noisy Public Urdeiwriters 4&_ ' '.I'--I- I tvif CODE ENFORCEMENTr .,.<fuz 4- ...- CITY OF ATLANTIC BEACH, FLORIDA a POSTED ON PROPERTY ANDNOTICEOFHEARING ATLANTIC ACH ITY HALL DATE: a 4/14/2022 Case Number: 21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7013 1710 0002 1691 9301 ATLANTIC BEACH, FL 32233 Property Address: 342 19TH STREET ATLANTIC BEACH, FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on May 5,2022 at 2:00 pm at Atlantic Beach City Hall, Commission Chamber, 800 Seminole Road,to answer and be heard on the following alleged violations on the property known as 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida. The City of Atlantic Beach adopted the International Property Maintenance Code and the Florida Building Code as part of the City of Atlantic Beach Code of Ordinances in Chapter 6, Article II, Section 6-16. International Property Maintenance Code/City Code of Ordinances 1. Sec. 23-51. (d) Sanctions for failure to obtain a permit. (1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2)times the normal established application fee specified in section 23-26. In addition, as a condition of the permit, the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2)Regulated trees removed in violation of this chapter shall be assessed at two (2)times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. STATEMENT OF CODE ENFORCEMENT OFFICER: At the 1/6/2022 hearing the Respondent was found in violation. In the written order dated 1/27/2022, the Respondent was ordered to comply with the City's tree code within 60 days from the date of the order by submitting a mitigation plan. The Respondent was also ordered to make any proposed payment as part of that mitigation plan within 75 days of the date of the order. As of today, the City has not received a mitigation plan or payment in lieu of any part of the mitigation. A request for rehearing on this case was denied in a written order dated 2/18/2022 Page 1 of 2 r On 2/28/2022 Karl Sanders, attorney for Mr. Bourdon, submitted an appeal of this case to the Fourth Judicial Circuit Court. No stay of enforcement has been ordered for this case. If the violation is corrected and then recurs or if the violation was not corrected by the time specified for correction by the Code Enforcement Officer in the Notice of Violation that you received, the case may be presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. You have the right to obtain an attorney at your own expense and to present witnesses on your behalf. If you desire to have witnesses subpoenaed or if you have questions regarding the procedure, please contact the City Clerk's office within five days of the receipt of this notice at (904) 247-5821. Please note the presence of a court reporter for the purpose of insuring a verbatim record in the event an appeal should be secured at your expense. I, (\ /_ a 1 \--Q CC hereby swear and affirm that the above statement true ,nd acc 1. e. ge • Iriza y' Co.e Enforce flint Officer, City of : antis each ATTEST: 111.< Vanessa Angers, Records Clerk cc: Karl Sanders via email: kjsanders@kjslawpa.com Page 2 of 2 SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY IN Complete items 1,2,and 3. A. Signature Print your name and address on the reverse X 0 Agent so that we can return the card to you. 0 Addressee Attach this card to the back of the mailpiece, B. Received by(Printed Name) 9. Da f Delivery or on the front if space permits. c't 1. Article Addressed to: D. Is delivery address different from item 1?:!Yes If YES,enter delivery address below: 0 No 3w di n 2 i-cs7 Cr 3. Service Type 0 Priority Mail Express II I III III II I i III 'III III III IIIT 0 Adult Signature Restricted Delivery 0 Registered Mail Restricted 0 Certified Mails Delivery 9590 9402 4495 8248 3528 99 0 Certified Mail Restricted Delivery 0 Return Receipt for 0 Collect on Delivery Merchandise 0 Collect on Delivery Restricted Delivery 0 Signature Confirmation'," 2. Article Number(Transfer from service label) 1 Insured Mail 0 Signature Confirmation 7 013 1710 0002 16 91 9301 'nsurd Mail Restricted Delivery Restricted Delivery aver$5001 PS Form 3811,July 2015 PSN 7530-02-000-9053 Domestic Return Receipt 1::'- r 1 I Si a f a..: 0rl r Mr 4- 1 ;a. .Y i I f 1 CODE ENFORCEMENT PROCEEDING BEFORE THE CITY OF ATLANTIC BEACH SPECIAL MAGISTRATE CASE NO.: 21-087 PARCEL ID NO: 172020-1242 ADDRESS: 342 19TH St., Atlantic Beach, FL CITY OF ATLANTIC BEACH, a municipal corporation, Petitioner, vs. THOMAS BOURDON, Respondent. RENEWED MOTION TO STAY ENFORCEMENT OF SPECIAL MAGISTRATE'S CODE ENFORCEMENT ORDER Respondent, Thomas Bourdon, hereby files this Renewed Motion to Stay Enforcement of the Special Magistrate's Final Order on Case No. 21-087, dated January 27, 2022 (the "Code Enforcement Order"), pending final disposition of the appeal filed with the Appellate Division of the Fourth Judicial Circuit, in and for Duval County, on February 28, 2022. In support of this Motion, Respondent states as follows: 1. On January 27, 2022, the Special Magistrate issued her Final Order on Case No. 21-087, finding Respondent in violation of Section 23-51(d) and Section 23-46 of the City's Tree Protection Code and directing him to secure an after-the-fact tree removal permit for the removal of twenty (20) trees from his residential property. 2. Two weeks later, on February 16, 2022, the First District Court of Appeal for the State of Florida issued an Opinion holding that the "clear and unambiguous language" of 1 Section 163.045, Fla. Stat. (the "Tree Preemption Statute"), "expressly prohibits" a local government from challenging either the evidentiary basis or ultimate conclusions set forth in the statutory "documentation" obtained by a property owner to invoke the protections of the Tree Preemption Statute in response to a local government's demand for a tree removal permit or mitigation for the removal of trees from his residential property. Vickery v. City of Pensacola, 1D19-4344 (Fla. 1st DCA Feb. 16, 2022). 3. On February 25, 2022, Respondent filed an Emergency Motion to Vacate the Special Magistrate's Final Order on Case No. 21-087, and, alternatively, Motion to Stay Enforcement of the Order pending appeal, citing the newly issued opinion of the First DCA regarding the Court's interpretation of the statutory preemption language in Section 163.042, Fla. Stat. A copy of Respondent's Emergency Motion to Vacate and Alternative Motion to Stay Enforcement is attached hereto as Exhibit "A" and incorporated by reference herein. 4. The Special Magistrate did not enter an order either granting or denying Respondent's Motion prior to the jurisdictional deadline of February 28, 2022, for appealing the Code Enforcement Order.' 5. Respondent timely filed its Notice of Appeal with the Fourth Judicial Circuit on February 28, 2022, thereby divesting the Special Magistrate of jurisdiction to rule on Respondent's Emergency Motion to Vacate. A copy of Respondent's Notice of Appeal, Case NO. 16-2022-AP-000003-XXXX-MA, Division JV-A, is attached hereto as Exhibit "B" and incorporated by reference herein. On February 28, 2022, the City filed its Response to the Emergency Motion to Vacate and Alternative Motion to Stay, a copy of which is attached hereto as Exhibit "C." 2 6. Per Florida Rule of Appellate Procedure 9.190 (Judicial Review of Administrative Action), the Special Magistrate has continuing jurisdiction to rule on Respondent's Motion to Stay Enforcement of the Code Enforcement Order, pending final disposition of the appeal. Fla. R. App. 9.190(e)(3) ("A party seeking to stay administrative action, not governed by the Administrative Procedure Act, shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief."). 7. On or about April 14, 2022, the City sent Respondent a Notice of Hearing for May 5, 2022 (the "Post-Appeal Hearing Notice"), directing Respondent to appear before the Code Enforcement Special Magistrate "to answer and be heard on the following alleged violations" with respect to Respondent's property: International Property Maintenance Code/ City Code of Ordinances 1. Sec. 23- 51. Penalties d) Sanctions for failure to obtain a permit. 1) Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the- fact permit, the fee for which shall be two (2) times the normal established application fee specified in section 23-26. In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. 2) Regulated trees removed in violation of this chapter shall be assessed at two ( 2) times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. Violations Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to 3 code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. 8. The referenced violations in the Post-Appeal Hearing Notice are identical to the original code enforcement citations, which the Special Magistrate disposed of in the Code Enforcement Order issued on January 27, 2022 (which is now pending on appeal before the Fourth Judicial Circuit). 9. In light of the pending Motion to Stay Enforcement filed with the Special Magistrate on February 25, 2022, Respondent has not submitted a tree mitigation plan or otherwise tendered any payment for same in accordance with the deadlines set forth in the Special Magistrate's Code Enforcement Order; namely, counsel for Respondent believes that the filing of the above-referenced Motion automatically tolled the calendar for calculating the deadlines set forth in the Code Enforcement Order. 10. The undersigned has conferred with counsel for the City and is authorized to represent that she does not oppose Respondent's request to stay enforcement of the Special Magistrate's Code Enforcement Order, pending final disposition of the pending appeal. 11. Respondent realleges and restates those paragraphs and legal arguments previously set forth in Respondent's Alternative Motion to Stay Enforcement of the Special Magistrate's Code Enforcement Order, as more fully set forth in Exhibit "A", attached hereto and incorporated by reference herein. WHEREFORE, for the foregoing reasons, Respondent respectfully requests that the Special Magistrate GRANT this Renewed Motion to Stay Enforcement of the January 27, 2022 Code Enforcement Order, pending final disposition of the timely filed appeal to the Fourth Judicial Circuit, in and for Duval County, Florida. 4 Respectfully submitted on this 4th day of May, 2022. KJS LAW, P.A. By: /s/Karl J. Sanders KARL J. SANDERS,ESQ. Florida Bar No. 28452 1102 AlA N., Suite 203 Ponte Vedra Beach, FL 33401 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.com Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 4th day of May, 2022, a true and correct copy of the foregoing has been filed with the City's Records Clerk, Vanessa Angers, via email at vangers@coab.us, and served on the City's counsel, Brenna M. Durden, via email at bdurden@llw-law.com s/Karl J. Sanders KARL J. SANDERS 5 Exhibit j 'A CODE ENFORCEMENT PROCEEDING BEFORE THE CITY OF ATLANTIC BEACH SPECIAL MAGISTRATE CASE NO.: 21-087 PARCEL ID NO: 172020-1242 ADDRESS: 342 19TH St., Atlantic Beach, FL CITY OF ATLANTIC BEACH, a municipal corporation, Petitioner, vs. THOMAS BOURDON, Respondent. EMERGENCY MOTION TO VACATE FINAL ORDER AND ALTERNATIVE MOTION TO STAY ENFORCEMENT PENDING APPEAL Respondent, Thomas Bourdon, hereby files this Emergency Motion to Vacate the Special Magistrate's Final Order on Case No. 21-087, dated January 27, 2022 (the "Order") and, alternatively, Motion to Stay Enforcement of the Order pending appeal. As more fully set forth herein, the First District Court of Appeal for the State of Florida has just recently issued an Opinion holding that the "clear and unambiguous language" of Section 163.045, Fla. Stat. (the "Tree Preemption Statute"), "expressly prohibits" a local government from challenging either the evidentiary basis or ultimate conclusions set forth in the statutory documentation" obtained by a property owner to invoke the protections of the Tree Preemption Statute in response to a local government's demand for a tree removal permit or mitigation for the removal of trees from his residential property. Vickery v. City of Pensacola, 1D19-4344(Fla. 1st DCA Feb. 16, 2022). 1 In support of this Motion, Respondent states as follows: 1. The above-styled proceeding concerns a code enforcement citation issued by the City of Atlantic Beach (the "City"), alleging that Section 23-51(d) of the City's Tree Protection Code required Respondent to secure an after-the-fact tree removal permit for the twenty (20) trees from his residential property. 2. The State's Tree Preemption Statute clearly and unambiguously sets forth the conditions under which a local government is precluded from regulating the removal of trees from a residential property: A local government may not require a notice, application, approval, permit, fee or mitigation for the pruning, trimming or removal of a tree on residential property if the property owner obtains documentation from . . . a Florida licensed landscape architect that the tree presents a danger to persons or property." Section 163.045(1), Fla. Stat. (2021). 3. Subsequent to the City's issuance of a code enforcement citation for removing trees from the yard of his residential home, Respondent obtained documentation from a Florida licensed landscape architect that fifteen (15) of the removed trees presented a danger to persons or property prior to their removal. 4. The documentation obtained by Respondent to invoke the protections of the State's Tree Preemption Statute was in the form of a Verified Written Declaration from a Florida licensed landscape architect, wherein the Declarant verified that the facts upon which he relied in reaching his conclusions were "based on [his] personal knowledge regarding the removal of certain trees from the residential property of Thomas and Kathleen Bourdon, located at 342 19th Street in Atlantic Beach, Florida." 2 5. On November 4, 2021, the City testified at the code enforcement hearing that the documentation provided by Respondent was insufficient because it did not meet the intent" of the State's Tree Preemption Statute. 6. On January 13, 2022, counsel for the City expounded upon the basis for this alleged "insufficiency" of Respondent's documentation, asserting in its proposed order that a) there was "no evidence whatsoever as to who advised [Respondent] that the trees should be removed," and (b) the documentation must "establish" that the landscape architect either personally observed the trees or have some other direct personal knowledge regarding the condition of or risk posed by the trees in order to qualify as "documentation" sufficient to invoke the protections of the State Preemption Statute. 7. On January 27, 2022, this tribunal issued a Final Order on Case No. 21-087, concluding that: T]he plain language of Florida Statute 163.045 required the documentation to say a tree presents a danger to person or property. The wording of the statute leads to the conclusion that the arborist or certified landscape architect must have observed the trees personally or had some other direct personal knowledge prior to removal regarding the condition of or risk posed by the tree(s). In this case, no such evidence was presented, and Mr. Miller was not present to testify or be available for cross examination. The Declaration or written statement is vague and unclear as to whom initially advised the Respondent as to the condition of the trees. Therefore, . . . the requirements necessary to make Section 163.045 Florida Statutes applicable to these facts have not been met. 8. Respondent respectfully submits that — in light of the First DCA's recent Opinion in Vickery v. City of Pensacola, 1D19-4344 (Fla. 1st DCA Feb. 16, 2022) — a copy of which is attached hereto — it is now crystal clear that the State's Tree Preemption Statute does not permit a local government to either contest the findings or otherwise challenge the evidentiary sufficiency of"documentation" obtained by a residential property owner from a 3 licensed landscape architect justifying the removal of trees which the architect deemed to present a danger to persons or property prior to their removal. In the words of the First DCA: S]ection 163.045(1)does not empower a local government to challenge the sufficiency of documentation either before or after tree removal." Challenges to the sufficiency of the documentation would render the statute meaningless. Permitting such challenges would mean that property owners would not know whether they could rely on the statute until a local government indicates that it is satisfied with their specialists' findings and the trees' dangerousness. Requiring property owners to undergo the procedures that the statute is designed to allow them to avoid defeats the statute's purpose. Vickery v. City of Pensacola, 1D19-4344 (Fla. 1st DCA Feb. 16, 2022) 9. Although the City's Ordinance Code does not expressly speak to the authority of this tribunal to entertain a Motion to Vacate a Special Magistrate's final order disposing of a code enforcement proceeding, the Courts of this State have repeatedly recognized that such authority does, in fact, exist. Mills v. Laris Painting Co., 125 So.2d 745, 748 (Fla. 1961) A]dministrative agencies have inherent or implied power, comparable to that possessed by courts, to rehear or reopen a cause and reconsider its action or determination therein, where the proceeding is in essence a judicial one."); Smull v. Town of Jupiter, 854 So. 2d 780 (4th DCA 2003) ("Florida court[s] ha[ve] recognized an administrative power to control and modify orders by timely action 'before an appeal from the original order of the administrative body has been lodged or before such order has become final by lapse of time without a timely appeal."' (quoting Vey v. Bradford Union Guidance Clinic, Inc., 399 So.2d 1137, 1138 (1s` DCA 1981)). 4 10. This tribunal retains jurisdiction to vacate its Final Order on Case No. 21-087 unless and until Responds files a Notice of Appeal by 11:59 p.m. on Monday, February 28, 2022. Accordingly, in light of the express and direct conflict of the Final Order with respect to the First DCA's recent opinion regarding the clear and unambiguous language and effect of the State's Tree Preemption Statute, Respondent respectfully requests that this tribunal enter a new order vacating its previously rendered Final Order on Case No. 21-087 prior to 5:00 p.m. on Monday, February 28, 2022. Otherwise, given the 30-day jurisdictional deadline for appealing that order, this tribunal will lose jurisdiction of this case and Respondent will be forced to unnecessarily incur the costs and expenses associated with securing a reversal of that order on appeal. 11. Alternatively, in the event that this tribunal does not vacate the Final Order prior to the jurisdictional deadline for appealing same, Respondent respectfully requests that the Special Magistrate enter an Order Staying Enforcement of Final Order on Case No. 21- 087,pending final disposition of the appeal. See F.R.A.P. 9.310(a)("[A] party seeking to stay a final . . . order pending review shall file a motion in the lower tribunal."). 12. As the Appellate Rules make clear, it is within this Special Magistrate's discretion to grant, modify, or deny Respondent's Alternative Motion to Stay. Factors which a tribunal may consider in deciding whether to grant a stay include the moving party's likelihood of success on the merits, and the likelihood of harm should a stay not be granted. See State ex rel. Price v. McCord, 380 So.2d 1037 (Fla. 1980); see also Perez v. Perez, 769 So. 2d 389, 391, n.4(Fla. 3d DCA 1999). 13. Respondent respectfully submits that the First DCA's recent Opinion regarding the State's Tree Preemption Statute is dispositive of the preemption issues presented during 5 the code enforcement proceedings; indeed, the Court's analysis is virtually identical to the legal arguments presented by Respondents throughout these proceedings. As such, the likelihood of success on the merits of any such appeal is high. 14. Similarly, in the event that a stay is not granted, the likelihood of harm to Respondent is high, as any future attempts to enforce the Special Magistrate's Final Order or otherwise impose daily fines for noncompliance with same while that Order remains on appeal will expose Respondent to significant financial risk and liability. Indeed, imposing any such fines on Respondent for exercising his right to appeal the Final Order would run contrary to the very purpose of code enforcement fines. Such fines are not designed to be punitive; they are issued to encourage or otherwise compel compliance with local regulations. At no time has Respondent asserted or otherwise suggested that he would not comply with the City's regulations (and, of course, the Special Magistrate's Final Order) if, in fact, those regulations are deemed lawful by a court of competent jurisdiction. WHEREFORE, for the foregoing reasons, Respondent respectfully requests that the Special Magistrate VACATE the Final Order on Case No. 21-087 or, alternatively, grant the Motion to Stay Enforcement pending appeal. Respectfully submitted on this 25th day of February, 2022. KJS LAW, P.A. By: /s/Karl J. Sanders KARL J. SANDERS,ESQ. Florida Bar No. 28452 1 102 A l A N., Suite 203 Ponte Vedra Beach, FL 33401 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.com Attorney for Respondent 6 FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA No. 1D19-4344 LARRY and ELLEN VICKERY, Appellants, v. CITY OF PENSACOLA, a Municipal Corporation, Appellee. On appeal from the Circuit Court for Escambia County. Jeffrey Burns, Judge. February 16, 2022 WINOKUR, J. Larry and Ellen Vickery appeal from an order denying dissolution of a temporary injunction prohibiting them from removing a tree from their property. Because the injunction was improper, we reverse. I The Vickerys own a residential lot in the North Hill Preservation District of Pensacola, on which a live oak tree is situated in the rear corner. Hoping to build a house and wanting to avoid potential damage from the tree, the Vickerys applied to the Parks and Recreation Department for a permit to remove the tree. The permit was denied shortly before section 163.045(1), Florida Statutes, came into effect on July 1, 2019. See Ch. 2019- 155, §§ 1, 4, Laws of Fla. This statute authorizes residential property owners to remove trees from their property without interference from local government if the owners obtain documentation, from an International Society of Arboriculture ISA)-certified arborist or Florida-licensed landscape architect, indicating that the trees present a danger to persons or property. The Vickerys' builder emailed the City of Pensacola (the City) to inform it that the Vickerys planned to remove the tree. The builder attached a letter from an ISA-certified arborist indicating that the main trunk of the tree had "severe decay" resulting from the prior removal of one of the tree's main stems, as well as other evidence of the tree "rotting on the inside." As a result, the letter contained the arborist's opinion that the "location of the tree puts homes and the occupants at risk of severe damage and safety" when the tree fails. The City filed an action for declaratory judgment seeking a determination that section 163.045(1), Florida Statutes, did not prohibit the City from enforcing the local code provisions requiring the Vickerys to obtain a permit to remove the tree. It argued that the statute's use of the words "documentation" and "danger" is ambiguous, that the Vickerys'documentation was insufficient, and that the Legislature must have intended to require property owners to obtain an objective evaluation based on standards used by ISA-certified arborists. The City also requested a temporary injunction prohibiting the Vickerys from removing the tree. The trial court granted the temporary injunction, which the Vickerys moved to dissolve. In a hearing on this motion, the City called experts to contest the Vickerys' arborist's finding of danger. Additionally, a landscape architect testified that those in his profession are not bound by written guidelines, that they use their own discretion to determine how to assess the danger of a tree, and that he would not typically prepare a written report of the danger. After the hearing, the court denied the Vickerys' motion. In its order, it discussed the City's likelihood of success on the merits of the declaratory action. In addition to accepting the City's 2 contention that the tree was not enough of a danger to remove, the court interpreted section 163.045(1). It stated that"the Legislature left express clues in the statutory language to narrow the scope of danger' and `documentation"' and concluded that "[t]he Legislature must be presumed to know the meaning of certified as an arborist or licensed as a landscape architect. By selecting only those two professions, the Legislature has implicitly adopted the professional standards applicable to the two respective industries." It further concluded that "the only reasonable interpretation . . . is one where: (1) an arborist or landscape architect must determine that a tree is a danger; and (2) for the determination and documentation to be rendered utilizing only the methodologies and official documents applicable to the two respective industries." The court determined that the statute applies only when a tree is dangerous, as substantiated by documentation, and also determined that section 163.045(1) does not preempt the City from challenging, through submission of its own expert opinions, the conclusions reached by an arborist who generated questionable documentation that [the tree] is dangerous." The Vickerys brought this appeal. They argue that the trial court ignored the plain meaning of section 163.045(1). The City counters that the statute is ambiguous and the trial court correctly interpreted it, including that the statute should be read to require arborists and landscape architects to follow industry standards and methods. It also argues that the trial court's interpretation does not impede the Legislature's purpose, which the City contends is to relieve residents of a bureaucratic process when a tree on their land is dangerous. Additionally, the City maintains that enforcing the local code is permissible because section 163.045(1) does not preempt all municipal protection of trees, that the Vickerys should have appealed the original denial of their permit application, and that the statute should not apply to the Vickerys at all because they do not yet reside on the property containing the tree. Finally, the City opposes a plain-language interpretation on the ground that it would permit property owners to determine for themselves whether a tree is dangerous, as they could simply pay for the opinion they want. 3 II We review legal conclusions de novo and factual findings for abuse of discretion. See Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258 (Fla. 2017). To obtain an injunction, a party must show "(1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that the injunction will serve the public interest." Smart Pharmacy, Inc. v. Viccari, 213 So. 3d 986, 989 (Fla. 1st DCA 2016). Only element (3) is at issue in this appeal. The merits of the declaratory action turn on the meaning of section 163.045(1), Florida Statutes, which provides the following: A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property. In determining the meaning of this statute, we are bound by the plain language of the text: If the statutory language is clear and unambiguous, the court must apply that unequivocal meaning and may not resort to the rules of statutory construction. The court must give full effect to all statutory provisions and avoid readings that would render a part of a statute meaningless; additionally, the court may not construe an unambiguous statute in a way that would extend, modify, or limit its express terms or its reasonable and obvious implications. Herman v. Bennett, 278 So. 3d 178, 179-80 (Fla. 1st DCA 2019) internal citation omitted). Additionally, the following principles apply: "[T]he Legislature is assumed to know the meaning of the words used in the statute and to have expressed its intent through 4 the use of the words." State, Dep't of Revenue v. Lockheed Martin Corp., 905 So. 2d 1017, 1020 (Fla. 1st DCA 2005). A court may discern "the plain and obvious meaning of the statute's text" from a dictionary. W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012). "[I]t is not this Court's function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute." State v. Rife, 789 So. 2d 288, 292 (Fla. 2001). "[N]o court is entitled to disregard the plain language of a statute in favor of what it deems to be a more reasonable construction." Horizon Hosp. v. Williams ex rel. Williams, 610 So. 2d 692, 693 (Fla. 2d DCA 1992). III Contrary to the City's contention, the words "documentation" and "danger" are unambiguous. They apply broadly, but their meanings are clear: "Documentation" refers to written evidence, and "danger" refers to risk of harm. Merriam-Webster defines "documentation" as (1) "the act or an instance of furnishing or authenticating with documents"; (2)(a) the provision of documents in substantiation" or "documentary evidence"; (2)(b)(1) "the use of historical documents"; (2)(b)(2) conformity to historical or objective facts"; (2)(b)(3) "the provision of footnotes, appendices, or addenda referring to or containing documentary evidence"; (3) "information science"; or (4) "the usually printed instructions, comments, and information for using a particular piece or system of computer software or hardware." Documentation, MERRIAM-WEBSTER (10th ed. 1998). "Information science" is "the collection, classification, storage, retrieval, and dissemination of recorded knowledge." Information Science, MERRIAM-WEBSTER (10th ed. 1998). Because section 163.045(1) uses "documentation" as a physical thing to be obtained, none of the definitions involving an act, including definition (3), can apply. Definition (4) cannot apply because there is no computer software or hardware at issue. Thus, "documentation" under section 163.045(1) clearly refers to written evidence. Merriam-Webster defines "danger" as (1)(a) "jurisdiction" archaic); (1)(b) "reach, range" (obsolete); (2) "harm, damage" obsolete); (3) "exposure or liability to injury, pain, harm, or loss"; 5 or (4) "a case or cause of danger." Danger, MERRIAM-WEBSTER 10th ed. 1998). The archaic and obsolete definitions do not make sense in context of section 163.045(1), and so clearly "danger" under the statute refers to risk of harm. With these definitions in mind, we turn to the plain meaning of section 163.045(1). The statute prohibits local governments from requir[ing] a notice, application, approval, permit, fee, or mitigation . . . for the removal of a tree" once an ISA-certified arborist or a Florida-licensed landscape architect has provided a residential property owner with documentation—written evidence—indicating that the tree presents a danger—a risk of harm. In short, property owners need not inform, let alone obtain permission from, the local government before removing a tree once they have met these conditions. If property owners have not met these conditions, this statute does not relieve them from obligations of local rules. As long as a local government does not require notice, we see no impediment to it asking for the documentation required by section 163.045(1). If a property owner has not complied with the statute and has violated a local code, nothing in the statute protects the owner from penalties under the local code. However, section 163.045(1) does not empower a local government to challenge the sufficiency of the documentation either before or after tree removal.1 Challenges to the sufficiency of the documentation would render the statute meaningless. Permitting such challenges would mean that property owners would not know whether they could rely on the statute until a local government indicates that it is satisfied with their specialists' findings and the trees' dangerousness. Requiring property owners to undergo the procedures that the statute is designed to allow them to avoid defeats the statute's purpose. 1 The dissent claims the Vickerys take an "extreme position" that "no judicial review is permitted at all." Dissenting op. at 29. We note that we express no opinion on whether the statute permits challenges to the authenticity of the documentation, as this issue is not before us. 6 Having established the plain meaning of section 163.045(1), we now address the City's interpretation. The City contends that section 163.045(1) requires arborists and landscape architects to follow particular standards and that their failure to do so removes property owners from the protection of the statute. We disagree. Had the Legislature intended arborists and landscape architects to follow particular procedures before section 163.045(1) could apply, it would have mandated those procedures. Moreover, the statute explicitly burdens local government—not arborists or landscape architects. The trial court's finding that the statute implicitly obligates the professionals to follow industry standards is unconvincing; it based this finding on the premise that the Legislature is presumed to know what it means to be certified as an arborist or licensed as a landscape architect, but—as a landscape architect testified at the hearing—there are no industry standards for landscape architects and some do not typically provide written documentation when opining that a tree is dangerous. The Legislature's presumptive knowledge of this would indicate that the Legislature did not intend to impose specific standards. The statute would be meaningless if it required property owners to obtain expert opinions but then did not protect them when they relied on those opinions. The City characterizes the Legislature's purpose as "relieving residents from a bureaucratic process where a tree on a resident's land is a danger to persons or property" and asserts that permitting local governments to challenge the documented finding that a tree is dangerous does not impede this purpose. This argument fails because a property owner whose documentation were to be challenged would have to go through a bureaucratic process before they could remove their trees. In other words, the statute would grant no relief. While the City is correct that section 163.045(1) does not preempt all municipal protection of trees, any local laws that conflict with state laws are invalid. See Sarasota All. for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 890-91 (Fla. 2010). Here, the City's local code requires property owners to obtain a permit before removing protected trees from their land. Under section 163.045(1), the City cannot require such a permit if the 7 property owner obtains documentation indicating that a tree is dangerous. To the extent of the conflict, the City's code cannot be enforced. We reject the City's contention that section 163.045(1) does not apply to the Vickerys because they do not yet reside on their land. "Residential property" is property zoned for residential use or, in areas that have no zoning, property used for the same purposes as property zoned for residential use. To hold otherwise would ignore the term's common use and improperly limit section 163.045(1). Under such an interpretation, purchasers would be required to move onto property containing a dangerous tree, subjecting themselves to risk, before they could remove the tree. Various residential properties would be excluded, including homes transitioning between occupation by seller and occupation by buyer, vacation homes, and temporarily unoccupied rental properties. Additionally, if a tree located on an unoccupied property zoned for residential use presented a danger to neighbors' persons or property, the owners would not be able to remove it under the statute. All such properties are widely understood to be residential, and they are included in both the statute's express terms and its reasonable and obvious implications. The argument that the Vickerys' land cannot be residential because they have not yet moved onto it ignores the plain meaning of "residential property" and improperly limits an unambiguous statute. Finally, the City's concern that property owners might abuse section 163.045(1), paying arborists and landscape architects for the opinion they want, is not a reason for the courts to ignore the plain language of the statute. "[H]owever compelling the public policy considerations may be . . ., it is not the province of the judiciary to read into the language of the . . . text anything not included or to limit the text in a manner not supported by its plain language."Fla. Police Benevolent Assoc., Inc. v. City of Tallahassee, 314 So. 3d 796, 802-03 (Fla. 1st DCA 2021). Section 163.045(1) is clear. It expressly prohibits the actions to which the City seeks to establish a right through declaratory judgment. The City therefore failed to show a substantial likelihood of success on the merits, and the temporary injunction is improper. 8 IV A We disagree with several assertions and characterizations of the facts contained in the dissenting opinion. It is generally enough to say that we are confident that we have properly applied the statute to the facts presented. Nonetheless, some of the statements merit a response. Regarding the tree itself, the dissent provides an imagined backstory and an evocative name for the tree, claiming that it has been "dubbed" "the Old Tree." Dissenting op. at 16. In fact, the record provides no evidence that, prior to this litigation, the tree has ever been named anything.2 This is unsurprising considering that the tree is in the rear of a residential lot. The dissent also notes that the tree has been designated a"protected heritage tree." Id. The record indicates only that the Pensacola municipal code identifies a "heritage tree" as a protected tree that is thirty-four inches in diameter. The record does not reflect how common this designation is. In fact, the record does not reflect any feature of the tree in question that might show it to be unique, or particularly big or old. The dissent claims that, when the City denied the Vickerys' application to remove the tree, the City's horticultural agent found that the tree "posed no safety concerns." Id. at 18. What the agent actually wrote was that the tree was "not in a state of condition that would initiate recommendation for removal for safety reasons," not that there were no safety concerns. In fact, the agent noted that his assessment did not determine the internal stability 2 The trial court used the phrase "the Old Tree" once during the course of this case, in its order denying the Vickerys' motion to dissolve the injunction. As the litigation was over a tree, and the tree is old, this seems unnoteworthy. In any event, it does not suggest that the tree was remarkable enough to merit a specific name. 9 of the tree, which constituted the primary reason for safety concerns indicated by the Vickerys' arborist. Likewise, we disagree with the dissent's claim that the City told the Vickerys that they could "tweak" the building plans to avoid removing the tree, suggesting that only a minor modification was needed. Id. at 18. The City actually suggested that the Vickerys could revise their plan "to flip the house," which we take to mean an entirely new building plan. This was hardly a "tweak." We disagree with many comments the dissent makes about the letter provided by the arborist to the Vickerys, both in the manner in which the letter was written and in the content of the letter itself. First, the dissent notes that the Vickerys asked the arborist to add a sentence to the letter regarding the danger posed by the tree, implying that the Vickerys compelled the arborist to indicate that the tree was dangerous. In fact, while Mr. Vickery did request an addition to the original letter, he did not tell the arborist what to write. Instead, the arborist explained that Mr. Vickery told him that he needed to include in his letter what effect a potential failure could have on neighboring homes. This does not make the letter "dubious" or "spurious" or show that it was prepared in a "manipulative manner." Id. at 19. Moreover, while the dissent contends that it was undisputed that the tree was healthy, the Vickerys' arborist concluded that the tree was not "structurally sound" and that it put the occupants at risk of severe damage when the tree fails. The dissent makes much of the arborist's inability to pinpoint a precise time when the tree would fall. But section 163.045 does not require the arborist to identify exactly when the tree will fall, only that it presents a danger to persons or property, which the arborist addressed here. Finally, we note that the Vickerys' arborist stated that construction on the lot prior to removal of the tree would create a situation where machinery could not be used to remove the tree. This would, he claimed, put his workers at high risk. The arborist stated that he was not sure he would even feel comfortable agreeing to remove the tree after development of the land. In other words, the opinion that the failure to remove the tree presented a danger was not based "solely on convenience and economic efficiency," as the dissent contends. Id. at 20. 10 Contrary to the dissent's contention, we have not made the statements and testimony of the Vickerys' arborist the centerpiece" of this opinion, ignoring the fact that the trial judge rejected it. Id. at 22 n.8. In fact, the analysis sections above hold that section 163.045 did not permit the trial judge here to assess the credibility of the arborist's documentation. As such, we have not credited the arborist over the City's witnesses, given that the proceeding where their credibility determinations were made was improper.3 The only reason that we even mention specifics of the arborist's statements is to dispute several factual assertions made in the dissent. B Regarding the application of the statute, the dissent agrees that a local government cannot require notice of removal if the statutory conditions have been met. However, in the event that the local government finds out about a proposed removal anyway, as occurred here, the dissent contends that the government is free to challenge the arborist's conclusions made in the documentation supporting the removal. We disagree. Such a rule implies that the government has the right to condition the removal on its approval, which is explicitly prohibited by the statute and contrary to its aim. Moreover, this proposal creates an unreasonable distinction between homeowners whose removal plans are known to the government and homeowners whose plans are kept quiet. 3 Although we have not credited the arborist's testimony over that of the City's witnesses, it is doubtful that we would have been required to defer to the trial judge's credibility determination when he did not have the authority to make such a determination in the first place. See, e.g., Cent. Waterworks, Inc. v. Town of Century, 754 So. 2d 814, 816 (Fla. 1st DCA 2000) (noting that "[a] finding of fact by the trial court in a non-jury case will not be set aside on review. unless it was induced by an erroneous view of the law" (emphasis added) (quoting Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956))). 11 V Because the temporary injunction is improper, the trial court erred in failing to dissolve it. Accordingly, we reverse and remand for dissolution. B.L. THOMAS, J., concurs with opinion; MAKAR, J., dissents with opinion. Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. B.L. THOMAS, J., concurring. I concur in the majority's well-reasoned opinion. The majority opinion properly respects the legislative power to promulgate policies that protect homeowners and their families from the risk of death and serious personal injury from dangerous trees, provided that a certified arborist has documented that a tree presents a danger to persons or property." § 163.045(1), Fla. Stat. 2019). Here, the certified arborist provided documentation that the tree would fail due to "severe decay" and "rotting on the inside." The arborist confirmed that the tree presented a danger in an affidavit: I probed into the decayed area and it was approximately 24 inches in before I hit solid wood. In addition, fungus, visual decay and fruiting bodies [we]re all visible on the trunk. These are signs [that] the tree was] rotting on the inside. It is my opinion this tree will fail when the decaying trunk can no longer support the weight of the two stems. The location of this tree puts the homes and the occupants at risk of severe damage and safety concerns when this failure occurs. . . . 12 The tree is not structurally sound [because of] the cavity in the trunk, the included bark, and the decay from improper pruning. The tree has a deep cavity in the main trunk. The decay from pruning is in the main trunk. The included bark is in the main trunk. It is my opinion that the tree presents a danger to persons or property. emphasis added). As the majority opinion correctly holds, no judicial review has been authorized anywhere in the text of the statute. The text of the statute does not even allow a local government to require a residential-property owner to give notice before the owner proceeds to remove a documented-dangerous tree. The dissenting opinion writes extensively about a hypothetical statute that would allow a judicial challenge to an arborist's documentation. But this hypothetical statute is a mirror opposite of the enacted statute which states in toto: 1) A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property. 2) A local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section. 3) This section does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to [§§] 403.9321-403.9333. 163.045, Fla. Stat. (emphasis added). And the title of that act is "[a]n act relating to private property rights . . . ." Ch. 2019-155, § 1, Laws of Fla. (emphasis added). 13 Nowhere does the title or body of the law in any way authorize a local government to force homeowners into court to defend the certified arborist's documentation that the tree presents a danger to people or property. The dissenting opinion's hypothetical statute has no basis in the actual text of the enacted statute. Thus, were we to agree with the dissent, the resulting majority opinion would be in violation of Florida's strict separation of powers. See, e.g., Citizens for Strong Schs., Inc. v. Fla. State Bd. of Educ., 232 So. 3d 1163, 1165 (Fla. 1st DCA 2017), aff'd, 262 So. 2d 167 (Fla. 2019). The Legislature and the Governor, not local governments and not the judiciary, have the power to enact substantive state law. See Art. III, § 1, Fla. Const. ("The legislative power of the state shall be vested in a legislature of the State of Floridan . . . .") (emphasis added); see also Art. III, § 8(a), Fla. Const. ("Every bill passed by the legislature shall be presented to the governor for approval and shall become law if the governor approves and signs itn . . . .") emphasis added). A search of the actual text of the enacted statute for any authorization of judicial review, a designated burden of persuasion, or any other evidence that the Legislature intended to allow what occurred here would be in vain. In addition to the plain text of the statute, which nowhere authorizes judicial review, the majority's interpretation of section 163.045 is further supported by the statute's legislative history and the Legislature's staff analysis. While this Court need not consult these sources as the text is unambiguous, these sources further support the majority's opinion. See White v. State, 714 So. 2d. 440, 443 n.5 (Fla. 1998) ("While we recognize that staff analyses are not determinative of final legislative intent, they are, nevertheless, 'one touchstone of the collective legislative will.' " quoting Sun Bank/S. Fla., N.A. v. Baker, 632 So. 2d 669, 671 (Fla. 4th DCA 1994))); Am. Home Assurance Corp. v. Plaza Materials Corp., 908 So. 2d 360, 369 (Fla. 2005) ("In fact, since 1982 this Court has on numerous occasions looked to legislative history and staff analysis to discern legislative intent." (citations omitted)). The final staff analysis for CS for HB 1159, now codified in section 163.045, Florida Statutes, states: B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 14 1. Revenues: None. 2. Expenditures: Indeterminate. There may be a negative fiscal impact associated with prohibiting a local government from requiring a fee, permit, or fine for the maintenance or removal of trees in certain circumstances. . . . C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: There may be a positive fiscal impact on residential property owners who are not required to obtain permits for tree maintenance in specified circumstances or replace removed trees. D. FISCAL COMMENTS: None. Fla. H.R. Comm. on State Affs., CS for HB 1159 (2019), Final Bill Analysis 7 (June 27, 2019) (emphasis added) https://www.myfloridahouse.gov/Sections/Documents/loaddoc.asp x?FileName=h 1159 z 1.LFV.DOCX&DocumentType=Analysis&Bil 1Number=1159&Session=2019. There could be no"positive fiscal impact"on the private sector, if the proposed legislation allowed local governments to force homeowners into court to defend the certified arborist's determination that a tree presented a danger to human life or residential property. The homeowners would have to expend considerable sums on legal fees in addition to the cost of hiring the certified arborist. And homeowners would be subject to the stress and time required to attend judicial proceedings, all to prevent a dangerous tree from killing or injuring the homeowners, their families, or other persons. Thus, I concur with the majority opinion because it correctly interprets the plain and unambiguous statutory text. 15 MAKAR, J., dissenting. Prior to 1845, when Territorial Florida was admitted to the Union, an acorn sprouted in what is now known as the Hill Preservation historic district near downtown Pensacola. Today, that acorn is a large Southern Live Oak (Quercus virginiana) estimated at over 200 years old and designated as a protected heritage tree—one whose trunk chest-level diameter exceeds thirty-four inches—under the City's municipal code. It has been dubbed the "Old Tree," justifiably due to its age and sixty-three- inch girth. ti; N r h iii . nfwi'd' k'''• r-, v .`.F'"•-'3,' 3i i4,,,.‘4, e. T{tk i.,-, ,..z,%: tg4e ec' .. -'4,—:% 7',. .. _ _"?»V ._ 16 In its centuries-old life, the Old Tree has endured hurricanes, wars, and pestilence; by all accounts, it is healthy and vigorous with an estimated life span potentially reaching 300-350 years. Its ongoing survival, however, may have met its match in a controversial Florida statute adopted in 2019 that allows for the pruning, trimming, or removal of any tree on a residential property for which "documentation" establishes that it is "dangerous." This statute—dubbed herein as the "removal statute" (even though it includes trimming and pruning)—states that: A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property. 163.045(1), Fla. Stat. (2021). The removal statute, whose genesis partially relates to governmental delays in removing hurricane debris, also prevents local governments from requiring"a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section." Id. § 163.045(2). It does not apply to the exercise of specifically delegated authority for mangrove protection" set out elsewhere in the statutes. Id. § 163.045(3). At issue in this appeal is whether a temporary injunction preventing the removal of the Old Tree during the litigation on the merits of the City's lawsuit, which involves competing interpretations of the removal statute based on the idiosyncratic facts presented, is warranted. I. In the fall of 2018, Larry and Ellen Vickery sought a permit from the City of Pensacola to remove the Old Tree from their undeveloped residential lot, which they bought in 2013 thereby subjecting it to the municipal code's historic district standards. 17 Vickery' sought removal of the tree to clear the lot for a new home and, relatedly, to avoid the risk of removing the tree if it became a hazard after the home is built, as explained in a letter from Tri- State Tree Services, LLC, a company owned by certified arborist Wayne Williams. The letter opined that removing the Old Tree prior to development of the lot would "eliminate the use of equipment [that would] make removal risk extremely high" later. On the City's behalf, a horticultural agent inspected the tree and determined it was healthy and an arborist found it was in satisfactory condition and posed no safety concerns; in addition, the City determined that Vickery could tweak the identical building plans, essentially flip-flopping them mirror-like, without the tree's removal. A removal permit was thereby denied; Vickery did not contest or appeal the denial, rendering it a final decision. Soon thereafter, the removal statute was enacted with an effective date of July 1, 2019.2 This prompted an email to the City from Vickery's builder stating an intent to remove the tree. Attached was a revised letter from Williams, who added a sentence—requested by Vickery—to his original letter opining that the Old Tree's location "puts the [neighboring] homes and the occupants at risk of severe damage and safety" when a failure of a stem of the tree occurs (though he had no idea when that would be). In response, the City immediately filed a lawsuit challenging the legality of the Old Tree's removal and seeking a declaration of its rights under the removal statute; it obtained an ex parte temporary injunction preventing the Old Tree's removal pending 1 Mr. Vickery acted for the couple during the administrative and litigation processes, so "Vickery" is used for convenience. 2 The removal statute was adopted concurrently with a Property Owners Bill of Rights, which sets out a non- comprehensive list of existing property rights to be set out on property appraiser's websites, but which "does not create a civil cause of action." Ch. 2019-155, § 3, Laws of Fla. (codified at 70.002, Fla. Stat.). 18 resolution of the merits of the litigation, which remains pending in the trial court. Vickery sought to vacate the temporary injunction, relying on an affidavit from Williams that mirrored parts of his original and revised letters but again included modifications injected by Vickery's lawyer. At the hearing, Williams testified about the genesis of his letter, its dubious basis, and the manipulative manner in which it was prepared and revised. Initially, Williams was asked to prepare an estimate to remove the tree without consideration of pruning or trimming("we did not discuss keeping the tree") to facilitate developing the open lot and building a new home.3 Yet his affidavit averred that he was not and ha[d] never been retained . . . to remove the tree I was asked to inspect." The affidavit was prepared by Vickery's lawyer who made changes to wording and tone that were different from William's initial statements. In assessing the Old Tree at that time, Williams agreed its canopy was "vigorous and healthy" and that its leaves showed no signs of disease or poor condition and that, like every tree, its components may fail at some point. The initial letter from Williams stated as follows (bracketed and in bold is a sentence that Vickery asked him to include after the removal statute was enacted): It is my opinion this tree will fail when the decaying trunk can no longer support the weight of the two stems.4 The location of this tree puts the homes and the occupants at risk of severe damage and safety 3 Williams testified that pruning and trimming can reduce the risk of a failure of a tree's component, noting that he and other tree companies "make their living by not removing a tree, but by pruning it and cycling it, and coming back and back and back. So you actually make more money in the long run by pruning a tree." 4 In a slightly ironic twist, the letter noted that a "house fire caused one of the [Old Tree's] three main stems to be removed." In other words, a fire at a neighboring house posed a danger to the Old Tree. 19 when this failure occurs.] I suggest removal of the tree prior to land development which will eliminate the use of equipment and make removal risk extremely high. The first sentence is a truism, that the Old Tree—like all others— will fail when the decaying trunk can no longer support the weight of the two stems." But Williams had no idea when that might happen ("Q: And you have no idea when [failure] will be, do you? A: No, ma'am, I do not.").Asked about a timeframe for the Old Tree to have a stem failure, Williams testified that "it could be in my lifetime. It could be today. It could be 100 years from now. Who knows." And he had no basis for saying whether the Old Tree might pose a probable or imminent risk of failure ("Q: [Failure] is not probable, and it is not imminent. Correct? A: I guess only God knows that." (emphasis added)).5 As such, no evidence was presented that a failure of any stem/component of the Old Tree was probable, imminent, or irremediable. The third sentence, contained in the original letter and slightly revised in the affidavit,6 related solely to the convenience and economic efficiency of removing the Old Tree to facilitate the planned development; it had nothing to do with the Old Tree's dangerousness, as Williams explained ("Q: And in terms of suggesting removal of the tree prior to land development, that 5 God's predictive power of when the Old Tree will tumble down dovetails well with Joyce Kilmer's famous poem, which acknowledges God's generative power in creating trees: "Poems are made by fools like me, But only God can make a tree." See Stephen Werner, The Tragedy of Joyce Kilmer, the Catholic poet killed in World War I, America: The Jesuit Review (July 27, 2018), https://www.americamagazine.org/arts- culture/2018/07/27/tragedy-joyce-kilmer-catholic-poet-killed- world-war-i. 6 The affidavit broke the sentence in two, stating "I suggest removal of the tree prior to land development. After home construction, removal would require specialized equipment and the removal risk would be extremely high and practically impossible." 20 would be a convenience and cost reduction approach. Right? A: Correct."). In addition, Williams never reviewed anything concerning the actual plans for the new house. Instead, he was asked by Vickery to revise his letter to include what would happen if—not when—the Old Tree were to fall on the "targets," i.e., the neighboring homes: Q: And did Mr. Vickery ask you to write it up that way? A: I was asked to add that in addition to, if the tree fell, what were the targets. Q: Did he tell you why he wanted you to add that to the letter? A: At that point of our conversation, I was unaware of the new law, or anything that was going on. Q: Do you remember that you later found out that is why he asked you to do it? A: I mean, I proverbially stepped into a mess that I wish I wasn't phone-called for. When asked about the addition of a sentence by Vickery lawyer's saying the "tree is not structurally sound," Williams disclaimed they were his words ("I don't know about structurally sound . . . this is not the way I worded my letter.") and continued to maintain that the tree is healthy ("Q: But you still maintain the tree is healthy? A: I do. Q: And you don't know when it will ultimately suffer a failure?A: No ma'am."). After hearing testimony from the City and its witnesses, including a certified arborist (Jerry Jarrett) who used industry standards in concluding the Old Tree was healthy/vibrant and presented no danger to people or property, the trial court heard oral argument on the merits at a later date and ultimately denied Vickery's request to vacate the temporary injunction in a detailed fifteen-page order containing comprehensive factual findings and detailed legal analysis interpreting the meaning of the removal 21 statute (and, of course, nicknaming the tree at issue the "Old Tree.").7 At the outset, and of critical importance, the trial court specifically concluded that the Vickery's arborist opinion lacked credibility and rejected it entirely: Wayne Williams, the arborist hired by [Vickery]. Mr. Williams confirmed he initially rendered an opinion that the Old Tree was not dangerous, and that he only changed his opinion when requested to do so [by Vickery]. Mr. Williams was also candid that he did not utilize industry standards for determining whether the Old Tree is dangerous. While Mr. Williams presented himself as a tree expert who is ISA certified, his opinion in the instant matter lacks credibility due to Mr. Williams' failure to utilize industry standards, and his tacit admission to changing his original opinion to suit the whims of Vickery]. Emphases added). This failure and the lack of credibility led the trial court to conclude that the "documentation" submitted by Vickery was dubious ("Here, the evidence at the injunction hearing raised serious doubts as to the accuracy and credibility of the documentation that [Vickery] submitted to the City."). The trial court thereby rejected Williams' opinion and affidavit entirely, concluding that "Jerry Jarrett provided the only credible expert opinion. In her opinion, the Old Tree is not a danger." (Emphasis added).8 7 The trial court noted that "the parties are in apparent agreement that the Old Tree falls under the definition of`Heritage Tree,' as that term is defined" in the City's code. 8 The majority fails to mention that the trial judge—who heard the testimony and assessed the demeanor of all witnesses— specifically concluded that Vickery's arborist lacked credibility and totally rejected his opinion; instead, the centerpiece of the majority's opinion is its reliance on and multiple citations to the discredited arborist's dubious assertions—despite the trial court having made specific factual findings rejecting them. Doing so is 22 In conjunction with these findings, the trial court ruled the City had presented a prima facie case of the four elements necessary for injunctive relief: a) Irreparable harm (because the destruction of a 200-year-old oak tree, 63 inches in diameter, cannot be replaced, and its loss is irreparable[]"); b) Inadequate remedy at law ("[M]oney damages alone cannot replace a unique 200-year-old tree which is likely much older than the State of Florida itself."); c) Likelihood of success ("The Court does not find Vickery's] interpretation of section 163.045(1), Florida Statutes to be credible. Specifically, the Court finds that the Legislature has not preempted local governments from challenging the documentation determining a tree is a danger if the documentation and opinion are not credible."); and contrary to basic principles of appellate adjudication that do not allow an appellate court to give credence to opinions of expert witnesses that a trial court has specifically discredited as lacking accuracy and believability. See Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 19:6 (2021 ed.) ("Florida courts have long recognized that questions relating to the credibility of witnesses are best resolved as an aspect of the fact-finding process, and that the decision of a trier of fact on such issues should not be reversed on appeal. A judge or jury may choose to believe one witness and discredit contrary testimony of a host of others, and the appellate court may not reevaluate that decision." (citing, for example, Tonnelier Const. Grp., Inc. v. Shema, 48 So. 3d 163, 166 (Fla. 1st DCA 2010) (footnote omitted))); see also Durousseau v. State, 55 So. 3d 543, 562 (Fla. 2010) ("As a general rule, the trial court is in the best position to evaluate the credibility of witnesses, and appellate courts are obligated to give great deference to the findings of the trial court."). But it makes the majority's position clear: documentation from an "expert"—no matter how unbelievable, far-fetched, or baseless—satisfies the removal statute, which cannot be what the Legislature intended. 23 d) Public interest ("The injunction will serve the public interest, as the tree ordinances in place were enacted by local government officials elected by the voters of the City, and are the reflection of the public interest of the residents of Pensacola."). For these reasons, the trial court denied Vickery's motion to dissolve the temporary injunction. Vickery appealed the non-final order, arguing that the trial court erred in its statutory analysis because the removal statute allows a residential property owner to remove any tree without local government involvement by simply having a "document" from a certified arborist. II. A. As a preliminary matter, a municipality has standing to seek declaratory relief about the scope of its powers, provided a bona fide, actual need is shown, which is clearly the situation in this case. Santa Rosa Cnty. v. Admin. Comm n, Div. of Admin. Hearings, 661 So. 2d 1190, 1192 (Fla. 1995) (quoting Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991)) ("The purpose of a declaratory judgment is to afford parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Parties who seek declaratory relief must show that there is a bona fide, actual, present practical need for the declarationf."' ). Such a declaration must be based on present facts and that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts" for relief to be available. Santa Rosa Cnty., 661 So. 2d at 1192 (quoting Martinez, 582 So. 2d at 1170); see also § 86.011, Fla. Stat. (2021) trial courts "have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. . . . The court may render declaratory judgments on the existence, or nonexistence: . . . Of any immunity, power, privilege, or right" or of any facts dependent thereon). 24 The City's lawsuit meets these standards by seeking a declaration about its municipal powers in light of the newly enacted removal statute, which creates a limited "dangerous tree" exception from specified aspects of local regulations. Contrary to Vickery's legal position, the removal statute's exemption was not intended to displace or nullify local regulation of trees entirely. To the contrary, local governments continue to have the full extent of their regulatory authority over all trees in their jurisdictions subject to the "documented danger" exception that the removal statute created. A local government's regulatory code continues to apply to all trees within its jurisdiction; it is only when a residential property owner presents documentation of danger in compliance with the removal statute's exemption that the local government's authority is curtailed. Stated differently, a local government retains its full regulatory authority over protected trees unless a residential property owner relies upon the exemption and fulfills the removal statute's requirement of documented danger. For example, if a residential property owner does not present any documentation of danger as specified in the statute, or simply sought removal of non-dangerous trees, the local government retains its full range of regulatory powers over its tree canopy, including imposing requirements such as "notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree." § 163.045(1), Fla. Stat. Absent documentation of danger required by the removal statute, the local government's regulations regarding tree protection remain unchanged and continue in force. For this reason, the City justifiably applied its regulatory code to deny Vickery's initial request to remove the Old Tree, which occurred before the removal statute's existence. No claim is made that the City's denial of the initial request was improper; indeed, Vickery didn't appeal the denial, which became final absent challenge. Likewise, the City would have been justified in applying its regulatory code to a subsequent request to remove the Old Tree, and denying that request as well, had Vickery not put the City on notice of his intent to invoke the removal statute; the City's code provisions would have prevailed in such a case. 25 Once a residential property owner puts a local government on notice of the intent to invoke the exemption from the removal statute, the local government is placed in a defensive posture and is thereby entitled to challenge apparent deficiencies in the documentation" upon which a property owner relies in claiming the statutory exception. That's because the local government's regulatory code continues to apply until it is established that the statutory exemption of documented danger is met. At a minimum, a city may require proof that the removal statute's pre-requisites have been met (how else will it know whether it can apply its own code to a particular tree?) and it may judicially challenge apparent deficiencies in the documentation upon which a property owner relies to except itself from local regulation (otherwise the Legislature's requirement of documentation from a certified arborist/licensed landscape architect would be rendered meaningless). The Legislature could have—but didn't—use language in the removal statute that creates an unreviewable exemption; instead, it used conditional and qualified language premised upon acquiring documentation of danger from a certified or licensed professional. Strong parallels exist with this Court's decision in Department of Health v. Curry, 722 So. 2d 874 (Fla. 1st DCA 1998), which noted the significant differences in the statutory language used in the religious and medical exemptions for student immunizations. The religious exemption stated that the immunization requirements "shall not apply" if the parent/guardian "of the child objects in writing that the administration of immunizing agents conflicts with his or her religious tenets or practices."Id. at 876 (emphasis added). In sharp contrast, the medical exemption required that a licensed physician certify that a "child should be permanently exempt from the required immunization for medical reasons stated in writing, based upon valid clinical reasoning or evidence, demonstrating the need for the permanent exemption" from immunization. Id. emphasis added).9 9 The religious and medical exemptions were in sections 232.0032(4)(a) and (5)(b), Florida Statutes, but are now contained in sections 1003.22(5)(a) and (5)(b), following a major legislative 26 This Court rejected the Department's position that it could test the bona fides of Curry's unilateral religious objection, pointing to the unqualified language of the religious exemption and comparing it to the highly qualified language of the medical exemption. Id. at 878. In contrasting the differences in the language, the Court noted that "the legislature might have required a certificate from a cleric that immunization would conflict with the parent's or guardian's religious beliefs, much as it did in [the medical exemptions], where it required a certificate from a physician as a condition precedent to the exemptions provided." Id. But it did not. Moreover, the Court noted that: a]t a minimum, one might expect that the legislature would have required a parent or guardian to swear or affirm that the objection was bona fide. However, the legislature did none of these things. Instead, it used unqualified language which, when given its commonly understood meaning, does not appear to permit the interpretation urged by the Department. Id. (emphasis added). By parallel reasoning, the Legislature didn't use sparse, unqualified language in the removal statute like that used in the religious exception; instead, it used conditional and highly qualified language akin to the medical exemptions for student immunizations, which posits that a licensed professional must certify the need for an exemption. The natural conclusion is that the removal statute's language does not give residential property owners a "free pass" to remove trees; instead, testing the bona fides of the documentation of danger by a certified arborist is fair game. The removal statute does not say that a residential property owner can merely offer up his personal "objection in writing" to the applicability of the City's tree code; instead, the exemption is conditioned on the requirement of documented proof of danger from a certified arborist. As to state preemption of the City's code, the trial court noted that the removal statute's language does not preclude the City re-write of the education code in 2002. See Chapter 2002-387, 117, Laws of Fla. 27 from challenging the validity of documentation. No express pre- emption exists; the statute doesn't say it preempts anything and merely creates an exception from a broad list of local regulatory controls. See Masone v. City of Aventura, 147 So. 3d 492, 495 (Fla. 2014). The Legislature could have written a different statute, one pre-empting all local government regulations (e.g., "No local government regulation shall apply" or "All local regulations are preempted"), but it created something different. Implied pre- emption doesn't apply because state regulation of the tree canopy is not so extensive that it leaves no room for local regulation. See id. And no direct conflict exists between the removal statute and local government regulation if the statute's exemption requirements are met, i.e., documentation of danger by a designated professional is presented. See id. As the trial court phrased it, the "Legislature has not preempted local governments from challenging the documentation determining a tree is a danger if the documentation and opinion are not credible." Importantly, no state powers are affected in any way because the removal statute merely creates an exemption from specified local provisions if the statute's documentation standard is met. As Vickery's notification to the City suggests, a commonsense approach is for property owners to provide the City with the documentation that purports to exempt them from the local regulatory process for tree pruning/trimming/removal. At that point, the City may concur in the documentation and dispense with the regulatory requirements the removal statute forbids. But in cases such as this one, where the "documentation" is of facially dubious reliability, a local government may seek a judicial declaration as to the adequacy of the "documentation" itself.'° 10 A potential consequence of allowing judicial challenge to questionable "documentation" is that such proceedings may become protracted and burdensome, which may delay the pruning, trimming, or removal of a truly dangerous tree. A counterpoint is that such proceedings further legislative intent by ensuring that non-dangerous trees remain protected; moreover, proceedings such as this one are likely to be infrequent, typically occurring only when the "documentation" is highly questionable and the stakes are high, such as the loss of a heritage tree, thereby ensuring that only truly dangerous trees can be removed as the Legislature 28 Vickery argues, however, that no judicial review is permitted at all; he posits that the Legislature "set circumstances where a residential] property owner could act without the need for municipal permission." In his view, he has no obligation to disclose documentation to anyone, nor may it be subject to any judicial scrutiny whatsoever. This extreme position, obviously, would embolden the removal of trees—dangerous or not—based solely on a residential property owner's whim; if no one can obtain or review the documentation authorizing the exception, why require it at all? As the City's attorney argued in the trial court, we "know that the Legislature did not intend to authorize the clear-cutting of the State of Florida." That may be a bit hyperbolic, but it is implausible—and an unreasonable reading of the removal statute—to believe the Legislature intended that residential property owners have an unfettered, unilateral right to furtively remove portions of the tree canopy based on documents that are not subject to any disclosure, review, or challenge. To put it in the context of this case, is it reasonable to believe that the Legislature would allow healthy centuries-old heritage trees, protected by long-standing and valid local laws, to be destroyed based on the spurious "documentation" in this case? Of course not. The better view is that although the Legislature intended to make it much easier for property owners to remove demonstrably unsafe trees, it did not intend to preclude a minimal level of scrutiny to ensure that statutory requirements are met." intended. Of course, the extent of litigation in this case is explained, in part, because it involves issues of first impression. 11 Of note, the Department argued in Curry that disallowing review of a religious exemption's bona fides "would lead to unreasonable and absurd results because 'any parent [could] get a religious exemption for entirely bogus, fraudulent, or otherwise non-religious reasons,' thereby defeating the purpose of the statute—to protect the health and welfare of school children." 722 So. 2d at 878. This Court concluded, however, that although it "is true that the intent we have attributed to the legislature will permit parents and guardians to obtain exemptions based upon untruthful representations that immunization would conflict with 29 The City was thereby justified in seeking declaratory relief and the imposition of a temporary injunction pending a decision on the merits. The limited inquiry is whether the removal statute's requirements were met such that the City's regulatory authority became curtailed. If competent substantial evidence was produced that documentation accords with the removal statute, the exception is met and the City must stand down to that extent specified in the statute; if such evidence is lacking, the exemption is inapplicable. B. Next is a question of statutory interpretation: what did the Legislature mean in requiring "documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property"? §163.045(1), Fla. Stat. (emphases added). Vickery argues that this language, including the highlighted words, is clear and unambiguous, rendering only one legitimate result, which—in his view—precludes the City and the judicial system from any involvement in the matter. He read the statute to say that his procurement of a document from a certified arborist that says the Old Tree is dangerous ends the inquiry; the statute's requirements have been met, period, thereby nullifying any attempt to obtain or verify the legitimacy of purported documentation. But such a cramped and literalistic reading of the statute ignores a basic tenet of statutory interpretation, which is that a text must be given its fair reading by taking account of its wording, context, and purpose. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012) ("The interpretive approach we endorse is that of the 'fair reading': determining the their religious beliefs," the"legislature might well have considered that a relatively minor concern compared to the danger that giving to the Department the authority to determine the bona fides of such objections would pose to the free exercise of religion guaranteed by both the federal and state constitutions." Id. 30 application of a governing text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued."). Purpose and context matter. Id. (explaining that the fair reading approach requires an ability to comprehend the purpose of the text, which is a vital part of its context0"). Each of the highlighted words above in the removal statute—read in isolation, literally, and out of context—can lead to a patently unreasonable result: a residential property owner can unilaterally remove a healthy tree that presents no current danger by merely securing a document that posits speculative future danger that is inconsistent with the professional standards of certified arborists. Such a reading, obviously, nullifies the purpose and meaning of the words the Legislature chose. First off, the trial court's invalidation of Vickery's documentation" was based on statutory analysis that hewed closely to traditional norms, citing well-worn principles of statutory construction. In doing so, the trial court made a critical observation: "In a vacuum, the words `danger' and`documentation' are arguably vague and ambiguous because they are susceptible to innumerable interpretations."12 That's eminently correct as to 12 Everyone agrees that the Old Tree is a "tree" for purposes of the removal statute, but even the word "tree" can be viewed as ambiguous in its scope; those in the industry struggle to agree upon a clear definition of what distinguishes it from a shrub, bush, or vine. See, e.g., Kathy Warner, Q: What is the difference between a tree and a shrub?, UF IFAS: Blogs (July 19, 2017), http://blogs.ifas.ufl.edu/nassauco/2017/07/19/q-difference-tree- shrub/; see also Peter Wohlleben, The Hidden Life of Trees 79-84 2016) (chapter entitled Tree or Not Tree) (noting that centuries old tree stumps remain alive and that tundra dwarf trees are often trampled to death by travelers who don't even know they are there a"); Vanessa Richins Myers, What Is the Difference Between a Tree and a Shrub?, The Spruce (updated Oct. 20, 2021), https://www.the spruce.com/the-difference-between-trees-and- shrubs-3269804 (noting that "[m]any people think, for example, that so-called banana trees are trees, but in fact, they are considered the world's largest herbf"). 31 danger" because it takes little imagination to conjure up— whether from one's own mind or a thick dictionary—ways in which a tree might be potentially dangerous. As the trial court noted: All trees are potentially dangerous, and can: (1) cause serious allergies; (2) attract rodents (squirrels); (3) attract bats(who have rabies); (4)act as lightning rods; (5) drop limbs and pine cones on people and property, causing injury; (6) damage property when sap drips, or leaves fall and stain with their tannins; (7) grow root systems that damage foundations, driveways, and roads; (8) have roots that act as trip hazards; (9) fall over when a strong wind blows, damaging property or killing people and pets; (10) catch on fire; (11) be used to fashion arrows, clubs, and other weapons; (12) harbor ticks, roaches, spiders, and other critters that cause disease; (13) cast large shadows that prevent healthy sunlight from making it through to the ground; (14)harbor raccoons and other larger animals that can attack people; and (15) they attract termites that can destroy the infrastructure of any house. All trees are dangerous to some degree; as the City's attorney argued, you "can slip on an acorn, or a limb, or be below a coconut tree and have a coconut hit your head. Does that mean every tree should be cut down?" The answer to this rhetorical question is no, but the Legislature clearly wanted genuinely dangerous trees to be subject to pruning, trimming, or even removal, if statutory requirements are met. Remember that the statute requires documentation that a tree presents a danger to persons or property," which signifies a legislative intent that a present danger must be shown versus a potential risk of danger at some unspecified future date. The statute doesn't say that a tree can be removed simply because it presents"a risk of danger," "potential danger," or"future danger"— doing so would open up the broad panoply of imponderables the trial judge and City attorney conjured up and thereby render the statute unreasonably overbroad. In addition, risk is the term used in the industry; risk can be low to high, depending on the probability of the risk and its potential harm. In contrast, the statute uses the word danger, which signifies a peril or hazard 32 associated with a high risk of current endangerment. The statute doesn't say the tree is a hazard, a risk, a threat, a peril, or the like; it says the tree must be documented as truly presenting a danger to justify its pruning, trimming, or removal. As such, the most reasonable reading of the removal statute requires a showing of current danger, not a potential risk of danger at some speculative time in the future. Saying a tree is dangerous and can be removed, simply because one or more limbs might fall in the future or that it might be more difficult or dangerous to remove the tree in the future, is not what the statute envisions. Next, the removal statute uses an important noun: documentation. It did not use a more generic noun, document. That's because documentation is more than a document. Documentation implies meaningful proof of what is asserted. Saying it was documented that a roof leak exists implies something more than a barebones document making such an assertion; documentation requires proof. See Document, Black's Law Dictionary (8th ed. 2004) (defining`document' as "[t]o support with records, instruments, or other evidentiary authorities[]"). The trial judge made this point via hypotheticals, saying: Could somebody simply share a beer with a licensed arborist who then scribbles on a bar napkin that a certain tree is dangerous because'a lot of people are allergic to oak tree pollen'?Or maybe one beer later scribbles that the tree is dangerous because "trees attract lightening [sic] and lightening [sic] can cause injuries"? Or after several more cocktails scribbles that a tree is dangerous because "the tree attracts birds, and for somebody with Ornithophobia the fear of birds), such a bird magnet would lead to traumatic results." The Legislature's use of the noun documentation—rather than document—signifies that a document with speculative or insupportable assertions is inadequate; a document must contain records, instruments, or other evidentiary authorities" that support its conclusions to be legitimate. 33 This understanding of "documentation" is the most reasonable. Keep in mind that the statute requires documentation from an arborist certified by the International Society of Arboriculture" to meet the statutory exception. By specifying documentation from a certified arborist, the Legislature by necessary implication requires that the documentation itself be produced according to the industry standards by which certified arborists govern their conduct. See Curry, 722 So. 2d at 878 (noting that student immunization statute requires "certificate from a physician as a condition precedent to the exemptions providedlj"). Certified arborists operate within the standards of their profession, which use a matrix of factors that injects a degree of objectivity in the risk analysis associated with trees; when a certified arborist documents the degree of risk a tree poses, the documentation is done within those standards. It makes no sense otherwise; the phrase "documentation from an arborist certified" by the industry's standard-bearer is rendered meaningless if fabricated whims and bar napkin conjectures make the cut. The far more reasonable conclusion is that the Legislature intended legitimate documentation that meets professional standards from certified arborists who are independent and not swayed by the whims of their clients. III. The trial judge reasonably concluded that the statutory requirement of "documentation" from a certified arborist that a tree presents a danger to persons or property" was not met in this case. To the contrary, the trial judge—who reviewed the evidence and observed the live testimony—found that the arborist lacked credibility and that his affidavit and letters were inconsistent with industry standards, didn't hew to the statute's requirement of present danger, and had no better predictive power of the Old Tree's purported dangerousness than a Magic 8 Ball. The arborist opined initially that the Old Tree was healthy and not dangerous only to change his opinion when Vickery asked him to do so, which simply catered to the "whims" of Vickery. This can't be the type of documentation" of "danger" the Legislature envisioned. Under these circumstances, the Legislature couldn't have intended that a healthy, non-dangerous heritage tree—one older than the State of Florida itself—be destroyed based on a bogus report. Reading the 34 statute to permit such an unintended and absurd result defies what the Judge Learned Hand said long ago: "We do not forget that courts must not make law, but only declare it; but there is no vade mecum to guide us between a sterile literalism which loses sight of the forest for the trees, and a proper scruple against imputing meanings for which the words give no warrant."13 Paul Bailey of Welton Law Firm, LLC, Crestview and Kim Anthony Skievaski of Kim Anthony Skievaski, P.A., Pensacola, for Appellants. Heather F. Lindsay, Assistant City Attorney, Pensacola, for Appellee. 13 New York Tr. Co. v. Comm'r of Internal Revenue, 68 F.2d 19, 20 (2d Cir. 1933) (emphasis added), aff'd sub nom. Helvering v. New York Tr. Co., 292 U.S. 455 (1934). 35 16-2022-AP-000003-XXXX-MA Div: JV-A Filing# 144770742 E-Filed 02/28/2022 10:02:47 PM Exhibit B IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FL CASE NO.: DIVISION: THOMAS BOURDON, Appellant, vs. CITY OF ATLANTIC BEACH, a municipal corporation, Appellee. NOTICE OF APPEAL NOTICE IS GIVEN that, pursuant to Fla. R. App. P. 9.030(c)(1)(A), 9.110(a)(1), 9.110(c) and § 162.11, Fla. Stat (2021), Appellant, Thomas Bourdon, hereby files a copy of the Notice of Appeal filed with the clerk of the lower administrative tribunal regarding the City of Atlantic Beach Code Enforcement Special Magistrate Order on Case No. 21-087, rendered on January 27, 2022. The nature of the order being appealed is a final administrative order ruling upon a code enforcement citation issued by the City of Atlantic Beach for alleged violations of Sec. 23-51(d) and Sec. 23-46 of the City's Tree Protection Code. ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 03/01/2022 12:13:11 PM Respectfully submitted on this 28th day of February, 2022. KJS LAW, P.A. By: /s/Karl J. Sanders KARL J. SANDERS,ESQ. Florida Bar No. 28452 1102 AlA N., Suite 203 Ponte Vedra Beach, FL 32082 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.com Attorney for Respondent/Appellant IN THE CITY OF ATLANTIC BEACH, FLORIDA, CODE ENFORCEMENT SPECIAL MAGISTRATE CASE NO.: 21-087 THOMAS BOURDON, Respondent/Appellant, vs. CITY OF ATLANTIC BEACH, a municipal corporation, Petitioner/Appellee. NOTICE OF APPEAL NOTICE IS GIVEN that, pursuant to Fla. R. App. P. 9.030(c)(1)(A), 9.110(a)(1), 9.110(c) and § 162.11, Fla. Stat(2021), Respondent/Appellant, Thomas Bourdon, appeals to the Fourth Judicial Circuit Court, in and for Duval County, Florida, the City of Atlantic Beach Code Enforcement Special Magistrate Order on Case No. 21-087, rendered on January 27, 2022. A conformed copy of the Order is attached hereto. The nature of the order being appealed is a final administrative order ruling upon a code enforcement citation issued by the City of Atlantic Beach for alleged violations of Sec. 23-51(d) and Sec. 23-46 of the City's Tree Protection Code. Respectfully submitted on this 28th day of February, 2022. KJS LAW, P.A. By: /s/Karl J. Sanders KARL J. SANDERS,ESQ. Florida Bar No. 28452 1102 AlA N., Suite 203 Ponte Vedra Beach, FL 32082 Telephone: 904-868-7929 Email: kjsanders@a,kjslawpa.com Attorney for Respondent/Appellant CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7017 0660 0000 3856 5385 vs. P--0,------.. oprty Address: 342 19th St. Thomas Patrick Bourdon l Atlantic Beach, FL 32233 342 19t St. re ,-. f r" f . Atlantic Beach, FL 32233 ti r R.::>, ..?,L„ r / Respondent. yt' , ` s. gfit;.:.. .4`•• C r k s( : .el •mrf . CASE NUMBER:21087 ,;'"V' 1"x^ ti \ REAL ESTATE NUMBER:-.•i720201242 " -§ " a_ t LEGAL DESCRIPTION 36 64 09-2S J29E SEL-VAMARINA UNIT 12-A LO 5,ATLANTIC BEACH, FL na" Vit'`= + ..s ,r LY ,};'<A\, t , i,- 1 3 i6.,• ems 1. rso.._- F. rats,-,.. v,,,,L ,,. i ;:\• 1`• b. S t. 0-40;.:" } ) ~`Vim>f' r, raw — ` x a .ti 1. a ii.:• '• --ORDER oN CASE NO:21-087. I 1 ;' S THIS CAUSE came for public hearing before the Code Enforcement Special Magisstirate`on January 6, 2022, and the,Special Magistrate having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters,issues findings of fact,conclusions o haw, and orders as follows: ' 4$, l C::::: .FINDINGS OF FACT.-- 4 $..? 1. Respondent owns.the property, located.at 342 19`.,St.; Atlantic Beach, Florida. ("The Property") 2. Notice of the hearing was continued from September 2, 2021, and the November 4, 2021, Code Enforcement hearings. 3. The Respondent was represented by Mr. Karl Sanders at the previous hearings and again at the January 6,2022,hearing.The Respondent was previously cited for violation of Sec. 23-51 (d) and Sec 23-46 for failing to make proper application for tree or vegetation removal permit and then failing to immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties as specified in Section 23-33. 4. The City of Atlantic Beach issued a stop work Order on August 3, 2020, after the Respondent removed twenty (20) trees from the Property on or about August 1, 2020. A tree removal application was subsequently received on August 19, 2020, after removal of the trees and after the stop work Order was issued. 5. On or about August 26, 2020, the City issued its Tree Removal Calculations to the Respondent, finding that twenty (20) trees removed from the Property constituted regulated trees under the then effective Chapter 23, Code of Ordinances(the"Tree Code") and advised the Respondent that he could either plant new trees or do a combination of tree replacement and pay funds into a tree conservation fund as mitigation of the unpermitted tree removal. The:Respondent stated that they were discussing a mitigation plan with the City. However, the Respondent failed fo provide or implement a mitigation plan. This resulted-in the City issuing a..riewNotice of-Violation for violations of Sec. 23- 51(d) and Sec.-2J-46. 6. During ,the1 September 2 •;•2021;-hearing, Respondent's counsel contested the City's determinations regarding`the''Tree Removal Calculations and required,mitigation plan alternatives..Also, during the:Novembert4 2021,hearing,Respondent's counsel contested whether the construction work conducted;at.the Property was adequate toitrigger the tree permit requirements set:forth in$the Tree`Code and that, based'on a written statement dated October•21, 2021,fr`omMichael Miller, a registered landscape,architect, the City was prohibited from requiring any permit pursuant to Section 163.045,Florida Statutes. r, ..`` i '' Section.163 045 (1) Florida Statutes in part states "A local government may,not;require a notice,application ,approval,permit,fee or:mitigation for`thie pruning trimming, or removal of a tree on residential property if property OW-tier-obtains documentation from an arborist certified by the -?International Society 'of Arboriculture or a 'Florida licensed landscape architect that the tree presents a danger_toy`persons or property." (Emphasis added), f° r 7. The City.of Atlantie'Beach stated that Mr. Miller's written statement contained a statement that the trees in question should be removed. However, the evidence presented shows that Mr. Miller was engaged more the eleven months after the trees were<<removed from the Property and there was no evidence presented that.supports the conclusion the Mr. Miller based his statement on•personal knowledge or viewing of the Property. The City of Atlantic Beach questioned 'the determination' of the individual who arrived at the conclusion (Mr. Michael Miller was not resent`and did not testify)that a totalfof 14 trees plus a Hickory tree were a danger to the 8. During the January 6, 2022, hearing, the City presented testimony from its Planning and Development Director, describing the provision in the Tree Code that triggers the necessity for a tree removal permit. Specifically, Sec. 23-21 which states: Major development on all existing developed sites having any structure or vehicle use areas where additions,renovations, upgrades or site changes are intended or anticipated within a two-year period of time when any such activity is valued at ten thousand dollars($10,000.00)or more. When value is in question, determination shall be made by the building official. (Emphasis added). 2 9. The Director opined that none of the exemptions described in Sec.23-22 of the Tree Code are applicable to the facts at hand. 10.The City Planning Director further testified that pursuant to the definitions of development" in Sec.23-8 of the Tree Code and in Sec. 24-7 of the Land Development Regulations, Development" includes the "removal of trees incidental to the development of land" (Sec. 23-8) and the carrying out of any building...operation" (Sec.24-17)and the "reconstruction, alteration of the size, ormaterial-change•to.the external appearance of a structure on land'!f Sec. 24-1 . `z Further, Sec.24-17 definess-"developmerit permit"to include,any"building permit...".(1- 6-2022 COAB Exhibit 4). 11.The Director, who stated she is responsible for interpreting hoth`the Tree Code (Chapter 23) and the, Land.Development Regulations of the Codes of Ordinances (Chapter 24), stated`that somethe&renovations and;upgrades complete by the Respondent in 2020, consisting specifically of the construction of,a new roof, new exterior windows, and tree removal,-which all'requirred building permits, constitute development as defined in the Tree Code and m the City's Zand Development Regulations.Also,'tliat4the Respondent's own applications-for the building•permits for the referenced renovations and upgrades Composite Exhibits 2-and 3,byRespondent during the November 4,12021,hearing)show that the value'of the work woyer$10;000.00 (the roof alone was at $13,000.00); and that as a result, the:Respondent's tree removal activities did require a'iree removal permit under Sec23-21:(2)of the City's.Tree Code. 12.The Respondeii'during cross-examination of the Director argued that the renovation and upgrades consisting,of the roof replacement and exterior window replacement did not meet the definitions;of"development" primarily because of the conjunctive word "and" in the definition contained in Sec. 24-17 r E N 4 T f a) Development means the carrying out of any building or mining operation or the making of any(inaterial change in the use or appearance of any structure,or'land and the dividing of land into three'0)i-if-more parcels' AF 13.The Respondent further stated_that the"conjunctive ."and" requires that any of the foregoing descriptions of development in the.defnition will not constitute "development" and (continuing to cite language from Sec. 24-16(f)) stating that none of the activities connected by "or" in the first part of the definition constitute "development" unless the activity is also accompanied at the time with the division of land into three or more parcels. Therefore, since there was no division of land into three parts there was no development" and consequently no tree permit required. 14. Respondent also contends that because no site plan was required by the City in order to obtain the permits for roof replacement or for the exterior windows, the work does not meet the definition of"development" found in the Tree Code in Sec. 23-8. On redirect, 3 the Director concluded that not all "development" as defined requires the approval of a site plan. CONCLUSIONS OF LAW 15.The Respondent was provided proper notice of the violation and hearings and was represented by Counsel. 16. Facts presented to the Special Magistrate require the analysis of whether the renovations and upgrades on the Property.constitute'a•"development" and if so, whether the answer to that question then triggers Florida Statute 163.045:- e=-9. 17. Considering the facts and evidence presented and contained in this Order, the upgrades and renovations consisting of a new roof, and hew.extenor windows in an amount valued over $10,000:00 constitute development" as defined in the City's Code of Ordinances. Also, an examination of the wording of City Ordinance 24-171eads to a logical conclusion that "development' means(1) the carrying out of any building or-mining operation, (2) the making of any;material'change m the•;use"or appearance of anystructure or land and 3)`the dividing of land into 3)-ormore parcels.Any of those three conditions would constitute a 'development'Et'does.not follow that the meaning of"and"-requires every piece of land needs to be divided:into,three parcels in order to constitute a"development". Therefore, a tree rerriovaliieriYut was required prior to removal of the trees.'• 18.Furthermore, if the-determmatlon,was`the renovations and upgrades did-not constitute F development",t e plain language of Florida Statutd 163:045 required the documentation to say a`tree presents'a danger to person or property. The wording;ofthe statute leads to the conclusion that the arborist or certified landscape architect must have'observed the trees personally or had some other direct personal knowledge prior to removal regarding the.condition of or risk posed by the tree(s). In this case, no such evidence was presented, and 4Mr. Miller .was not present to testify or be available for cross examination. The Declaration or written statement is vague and unclear as toFwhom initially advised the Respondent as to the condition of the trees. Therefore, even if a "development" was not found, the requirements necessary to make Section 163.045 Florida Statutes applicable to these facts,have not been met. Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: A. The Respondent shall comply with the Tree Code as set forth in Sec.23-33 withing sixty 60) days from the date of execution of this Order, by submitting a mitigation plan to address the removed trees and the trunk inches either in the form of a tree replacement plan or in the form of a combination of tree replacement and payment in lieu of replacement, pursuant to Sec. 23-37, in accordance with the City's calculation set forth in 4 the Tree Removal Calculations issued by the City on or about August 26,2020 previously submitted as Composite Exhibit 4 from the November 4, 2021 hearing. B. If any payment in lieu ofreplacement is made a part of Respondent's mitigation plan, Respondent must make such payment in full no later than seventy-five(75) days from the date of execution of this Order. C. All trees included in Respondent's mitigation plan must be planted with One hundred and twenty (120) days from the date of execution of this Order and the Respondent must comply with the requirements of Sec. 23-34, Maintenance and Monitoring, and all other applicable provision of the Tree Code:m,----..• t..„, D. Should the Respondentfail to comply.:withfsections A0,13sand C of this Order, a fine of two hundred,.and fifty dollars-($250.00)-per-day and ,two hundred and fifty dollars 250.00) every day thereafter the violation continues totexistshall be levied. Respondent shall also pay any administrative costs to the City uicurred in prosecuting this case. r E. The tRespondent. .is'responsible for contacting the Cityof Atlantic Beach Code Enforcement Officer arid`o_btaining a Fin pections of compliance,.`"...,.t.- `: z t 0' ACt - N E V '?!•.ef.' a..I ;% F. Failure to t iiiely pay akaccumulated'fines will result in a lien being'recorde3d with the clerk of' th&CircuitCourt;`for Duval,County for the total assessment plus costs incurred for ttie filing ofcthe lief..All Then amounts are payable at an interest rate:of,4.25% per annum from'the.date ofpthe certCification until paid. t 6 c mss_ h yr fj 51•(l'.'` q 1 aLLL{ n.+rys yi t j i[ I DONE AND ORDERED THIS DAY OF JANUARY2Q22'.' ' ;. _ t' ...-----1 `:-..__ ..‘,-..',;,,r.i -:. 'w'.'i,'--.1...':': 1',"! :::.! R+ t CITY OF ATLANTIC BEACH,FLORIDA 16 y CODE ENFORCEMENT SPECIAL MAGISTRATE ATTEST: ; ti,,' ',, r;4,,n);-,--t--'hw ar 4_____ Ladayija Nichols, Records Clerk.,:---.....,Suzann W. Green, Special Magistrate 4 i'".M Executed this - 7 day of January.2022: .1_,„,,,? _K' 4. 1. J• - `' •F PLEASE NOTE:Florida Statutes § 162.11 requires that any appeal of this Order must be filed in the circuit court for Duval County within 30 days of this Order's execution. 5 Exhibit C CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE City of Atlantic Beach, Florida, Petitioner, Case No. 21-087 v. Property Address: 342 19th Street Thomas Patrick Bourdon Atlantic Beach, FL 32233 342 19th Street Atlantic Beach, FL 32233, Respondent. REAL ESTATE NUMBER: 172020-1242 LEGAL DESCRIPTION: 36-64 09-28-29E SELVA MARINA UNIT 12-A LOT 5,ATLANTIC BEACH, FL CITY'S RESPONSE TO RESPONDENT'S EMERGENCY MOTION TO VACATE FINAL ORDER AND ALTERNATIVE MOTION TO STAY ENFORCEMENT PENDING APPEAL Comes now, Petitioner, City of Atlantic Beach ("City") and files this Response to Respondent's Emergency Motion to Vacate ("Motion to Vacate") Final Order on Case No. 21- 087 dated January 27,2022 (the"Order") and in the alternative, Motion to Stay Enforcement Motion to Stay") of the Order pending appeal. Contrary to Respondent's Motion to Vacate, Vickery v. City of Pensacola, Case No. 1D19-4344 (Fla. 1st DCA Feb. 16, 2022), is not dispositive of the issues presented in this Code Enforcement action. In regards to Respondent's Motion to Stay,that potential remedy is available to Respondent upon filing a Petition for Writ. 01615354-1 Motion to Vacate The City opposes the Motion to Vacate for two primary reasons, First, the Vickery decision is not yet final.As such,it is subject to change by way of numerous potential actions by the parties,such as motions for rehearing,clarification or certification,as well as potential appeal to the Florida Supreme Court. The Order should not be vacated based on the Vickery decision which is not yet final. Second, the Order should not be vacated because the Vickery decision is not dispositive of the issues in the Bourdon proceeding. The facts in the two cases are distinguishable in that in Vickery the landowner had a certified arborist inspect the tree prior to removal who then opined that the tree had "severe decay"and was "rotting on the inside". Vickery at p. 2. The City of Pensacola then contested the sufficiency of Vickery's arborist's finding of danger itself. Id. In the case at hand, the Order is based on the fact that there was no evidence presented that the person who initially advised Bourdon to remove the trees and on whom's advice Mr. Bourdon then cut down the trees was either a certified arborist or licensed landscape architect, and further that there was no evidence that the landscape architect, whose declaration was written nearly a year after the trees were cut down, had ever observed the trees personally or had some other direct personal knowledge prior to removal regarding the condition of or risk posed by the trees. As a result, the conditions precedent to invoking the requirements necessary to make Section 163.045,Florida Statutes, applicable to the Bourdon facts were not met. Order at p. 4. Even in the Vickery holding,the First District Court of Appeal states: The statute prohibits local governments from "requir[ing] a notice, application, approval, permit, fee, or mitigation . . . for the removal of a tree" once an ISA-certified arborist or a Florida-licensed landscape architect has provided a residential property owner with documentation-written evidence 01615354-1 2 indicating that the tree presents a danger-a risk of harm. In short, property owners need not inform, let alone obtain permission from, the local government before removing a tree once they have met these conditions. If property owners have not met these conditions,this statute does not relieve them from obligations of local rules. [Emphasis supplied.] Vickery at p. 6. Because the Vickery decision is not final and is distinguishable both on the facts and merits from the Bourdon case, the City hereby requests the Special Magistrate to deny the Motion to Vacate. Alternatively, should the Special Magistrate be inclined to grant Respondent's Motion to Vacate, the City respectfully requests the Magistrate to set further proceedings in this case in her order. Motion to Stay Pursuant to Florida Rules of Appellate Procedure, a Motion to Stay Enforcement of the Order is appropriate following the filing of an appeal. See Fla. R. App. P. 9.310. In the event an appeal is timely filed by Respondent,then Respondent may properly seek a Motion to Stay.As a result,the City requests that any action on the Motion to Stay be held in abeyance until such time that Respondent timely files a proper appeal. Should Respondent file an appeal,the City requests an opportunity to provide a written response to this tribunal prior to the issuance of an order on the Motion to Stay. WHEREFORE, for the foregoing reasons, the City respectfully requests the Special Magistrate to deny Respondent's Motion to Vacate the Order or, alternatively, should the Magistrate be inclined to grant the Motion to Vacate,then to include in such order provisions for further proceedings in this enforcement action. In regards to the Motion to Stay, the City requests the Special Magistrate to hold in abeyance any action on the Motion to Stay until 01615354-1 3 such time that Respondent files an appeal and the City thereafter has an opportunity to file its substantive response with this tribunal. Respectfully submitted this 28th day of February, 2022. s/Brenna M. Durden Brenna M. Durden, City Attorney Florida Bar No. 518786 LEWIS, LONGMAN &WALKER, P.A. 245 Riverside Avenue,Suite 510 Jacksonville, FL 32202 Telephone: (904) 353-6410 Facsimile: (904) 353-7619 Email: bdurden@ llw-law.com ATTORNEY FOR CITY OF ATLANTIC BEACH Certificate of Service I hereby certify that the foregoing has been furnished by electronic mail to Karl J. Sanders, Esq., KJS Law, P.A., 1102 A1A N., Suite 203, Ponte Vedra Beach, FL 32082 kjsanders@kjslawpa.com),this 28th day of February, 2022. s/Brenna M. Durden Attorney 01615354-1 4 CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ORDER City of Atlantic Beach, Florida, Petitioner First Class and Certified Mail Return Receipt Requested: 7017 1000 0000 7000 3297 vs. Property Address: 342 19th St. Thomas Patrick Bourdon Atlantic Beach, FL 32233 342 19th St. Atlantic Beach, FL 32233 Respondent. CASE NUMBER:21-087 REAL ESTATE NUMBER: 172020 1242 LEGAL DESCRIPTION: 36-64 09-2S-29E SELVA MARINA UNIT 12-A LO 5,ATLANTIC BEACH, FL ORDER ON CASE NO. 21-087 THIS CAUSE came for public hearing before the Code Enforcement Special Magistrate on May 5, 2022, and the Special Magistrate having heard testimony under oath, received evidence, and heard arguments respective to all appropriate matters, issues findings of fact, conclusions of law, and orders as follows: FINDINGS OF FACT 1. Respondent owns the property located at 342 19th St., Atlantic Beach, Florida. ("The Property"). 2. Notice of the hearing was sent on April 14, 2022, for the May 6, 2022, Code Enforcement hearings. 3. The Respondent was represented by Mr. Karl Sanders at previous hearings. Counsel for the Respondent previously appeared at the January 6, 2022, hearing wherein the Respondent was previously cited for violation of Sec.23-51 (d)and Sec 23-46 for failing to make proper application for tree or vegetation removal permit and then failing to immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties as specified in Section 23-33. 4. At the January 6, 2022 hearing, the Respondent was ordered to comply with the Tree Code as set forth in Chapter 23-33. 5. The Respondent then filed a Request for a Rehearing on February 7, 2022, and a hearing on that Request was heard February 16, 2022. The Request for Rehearing was denied. 6. The Respondent by and through Counsel filed a Copy of a Notice to Appeal to the Circuit Court which was received by the Clerk of the Court. 7. No mitigation plan has been received at that time and at the time of this May 5, 2022 hearing. 8. The Respondent then filed a Motion to Stay the Enforcement of the previous Orders. Specifically, the January 6,2022, Order)until such time as the Circuit Court rules on the Appeal. The City of Atlantic Beach did not oppose the Motion to Stay. CONCLUSIONS OF LAW 9. The Respondent was provided proper notice of the violation and hearings and was represented by Counsel. Both the Respondent and the City of Atlantic Beach agreed to stay the enforcement of the prior January 6, 2022, Order until a ruling by the Circuit Court. ORDER Based upon the foregoing Findings of Fact and Conclusions of Law and pursuant to the authority granted in Chapter 162, Florida Statutes, and the Code of Ordinances of the City of Atlantic Beach, Florida it is Ordered: A. The Motion to Stay the Enforcement of the January 6, 2022, Order is granted as agreed to by the Parties. DONE AND ORDERED THIS l 7 DAY OF MAY, 2022. CITY OF ATLANTIC BEACH, FLORIDA CODE ENFORCEMENT SPECIAL MAGISTRATE ATTEST: 4,k-c- IC) Vanes Angers, Records Clerk SuzannW. Green, Specialp Magistrate Executed thisj]day of May 2022. PLEASE NOTE:Florida Statutes § 162.11 requires that any appeal of this Order must be filed in the circuit court for Duval County within 30 days of this Order's execution. 2 ENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired.X 1) 0 Agent Print your name and address on the reverse Addresse so that we can return the card to you. B. Rec-ived by(Printed Name) C. Date of Deliver Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery ad.ress different from Item 1? 0 Yes 1. Article Addressed to: If YES,enter delivery address below: 0 No Witmus Pa frk k- tarot , 3q2 0+14 St- i-P'+'1a,Vl''L v` Ft 322_33 3. Se9Ace Type MCertifedMair 0 Priority Mail Express"' Registered 0 Return Receipt for Merchandis 2 I -OQ 1 Insured Mail 0 Collect on Delivery tU, 1 4. Restricted Delivery?(Extra Fee) 0 Yes 2. Article Number 7017 1000 0000 7000 3297 Transfer from service labx PS Form 3811.July 2013 Domestic Return Receipt Irizarry,Angela From:Brenna Durden <bdurden@llw-law.com> Sent:Sunday, October 9, 2022 8:52 PM To:Askew, Amanda; Irizarry,Angela Subject:Fwd: SERVICE OF COURT DOCUMENT CASE NUMBER 162022AP000003XXXXMA CITY OF ATLANTIC BEACH - BOURDON, THOMAS Attachments:Transcripts.pdf; Transcripts.pdf; Transcripts.pdf FYI…Here are the transcripts bourdon filed onFriday. He also filed other documents around 11pm onFriday. I’llforward those toyou also. Again, just FYI but thought you’dwant toknow. Thx. Brenna Brenna M. Durden Shareholder Lewis, Longman & Walker, P.A. 904.353.6410 Sent from my iPhone Begin forwarded message: From: eservice@myflcourtaccess.com Date: October 7, 2022 at4:20:46PMEDT Subject: SERVICE OFCOURT DOCUMENT CASE NUMBER 162022AP000003XXXXMA CITY OFATLANTIC BEACH - BOURDON, THOMAS External Email Notice ofService of Court Documents Filing Information Filing #: 158820703 Filing Time: 10/07/2022 04:20:10 PM ET Filer: Karl JSanders 904-868-7929 Court: Fourth Judicial Circuit inand for Duval County, Florida Case #: 162022AP000003XXXXMA Court Case #: 16-2022-AP-000003-XXXX-MA Case Style: CITY OFATLANTIC BEACH - BOURDON, THOMAS Documents Title File Transcripts 10-07-22Notice ofFiling 11-04-21Hearing Transcripts.pdf Transcripts 10-07-22Notice ofFiling 01-06-22Hearing Transcripts.pdf Transcripts 10-07-22Notice ofFiling 02-16-22Hearing Transcripts.pdf 1 E-service recipients selected for service: Name Email Address Karl JSanders kjsanders@kjslawpa.com<mailto:kjsanders@kjslawpa.com> Brenna MDurden bdurden@llw-law.com<mailto:bdurden@llw-law.com> sreichard@llw-law.com<mailto:sreichard@llw-law.com> Breanna Durden bdurden@coab.us<mailto:bdurden@coab.us> Thomas Anthony Valdez tvaldez@qpwblaw.com<mailto:tvaldez@qpwblaw.com> tvaldez.pleadings@qpwblaw.com<mailto:tvaldez.pleadings@qpwblaw.com> adneris.cruz@qpwblaw.com<mailto:adneris.cruz@qpwblaw.com> E-service recipients not selected for service: Name Email Address State Attorney SAO4DuvalMAPPEAL@coj.net<mailto:SAO4DuvalMAPPEAL@coj.net> This isanautomatic email message generated bythe Florida Courts E-Filing Portal. This email address does not receive email. Thank you, The Florida Courts E-Filing Portal The following identifier(s) are associated with this transaction: request_id#:158820703;Audit#:541650665;UCN#:162022AP000003XXXXMA; 2 IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FL CASE NO.: LT CASE NO: DIVISION: 2022-AP-000003 21-087 AP-A THOMAS BOURDON, Appellant, vs. CITY OF ATLANTIC BEACH, a municipal corporation, Appellee. NOTICE OF FILING HEARING TRANSCRIPT OF 11/04/2021 CODE ENFORCEMENT PROCEEDINGS Appellant, Thomas Bourdon, by and through the undersigned, hereby notices filing of the attached hearing transcript for the City of Atlantic Beach Code Enforcement Proceedings which took place on November 4, 2021. Respectfully submitted on this 7th day of October, 2022. Signature Block and Certificate of Service on following page] Filing # 158820703 E-Filed 10/07/2022 04:20:10 PM 2 KJS LAW, P.A. By: /s/ Karl J. Sanders KARL J. SANDERS, ESQ. Florida Bar No. 28452 1102 A1A N., Suite 203 Ponte Vedra Beach, FL 32082 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.com Attorney for Appellant CERTIFICATE OF SERVICE I certify that, in compliance with Fla. R. Jud. Admin. 2.516, the foregoing document has been furnished via e-mail to the counsel of record identified as Electronic Service Recipients upon filing with the Florida Courts E-Filing Portal on this 7th day of October, 2022. KJS LAW, P.A. By: /s/ Karl J. Sanders Karl J. Sanders, Esq. 1 CITY OF ATLANTIC BEACH CODE ENFORCEMENT SPECIAL MAGISTRATE MEETING Case No.: 21-087 RESPONDENT: THOMAS BOURDON Re: 342 19th Street Atlantic Beach, Florida 32233 TRANSCRIPT OF PROCEEDINGS DATE: Thursday, November 4 , 2021 TIME: 2 :00 p .m . to 3 :38 p .m . BEFORE:Magistrate Suzanne W . Green LOCATION: 800 Seminole Road Atlantic Beach, Florida 32233 Stenographically reported by: Amy Marie Yarbrough, FPR-C North Florida Reporting, Inc. MadamCourtReporterJax@ comcast.net 2 APPEARANCES of COUNSEL On behalf of Respondent: KARL J . SANDERS, Esquire KJS Law, PA 1102 A 1 A North Suite 203 Ponte Vedra Beach, Florida 32082 904.868.7929 kjsanders@ kjslawpa.com Also Present: Angela Irizarry, Code Enforcement Officer CITY OF ATLANTIC BEACH'S EXHIBIT INDEX Exhibit No. Description Page 1 Packet of evidence and PPT Presentation 8 RESPONDENT'S EXHIBIT INDEX Exhibit No. Description Page 1 Chapter 23 Ordinance Code 16 2 Building Permit Application 22 3 Building Permit Application - Roof 22 4 Emails and Correspondence 28 5 Ordinance 24-17 34 6 H ouse Bill 1159 38 7 Declaration of Michael Miller, RLA 46 8 Email correspondence 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 P R O C E E D I N G S Meeting called to order) Pledge of Allegiance recited) THE MAGISTRATE: For some of you who haven't been here before, this is our code enforcement meeting. My name is S uzanne Green. I 'm an attorney. I 'm your special magistrate for today. First order of business, we had a meeting two months a go. We have to have the approval of the minutes. Does anyone have any objection to the minutes? I do not. Does the City have any objection? THE CLERK: No. THE MAGISTRATE: Then the minutes from that meeting will stand. It's the September 2 nd minutes. If anyone is going to testify, I need you to stand and swear you under oath, if that's okay. So we need the City and anybody else that intends to speak at the podium and testify. So anyone out there, go ahead and stand. Well, if not, that's fine. I mean, swear you in and if you decide you didn't stand up and swear, just tell me, and I 'll swear you in at that time. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Oath administered) IN UNISON): Yes. THE MAGISTRATE: You may sit down. Thanks. Our procedures are pursuant to Florida Statute 1 62 and the Atlantic Beach Code of Ordinances, so we kind of follow this as a trial, as a courtroom, a little more lax with some of the rules , but we are in a legal proceeding, so everyone needs to understand that. It's assumed that people that are here understand the codes, are familiar with them and the ordinances. Decisions are made here by a preponderance of the evidence. It's not a criminal case. It's not reasonable doubt. It's a preponderance of the evidence, so it's whether what the evidence is more likely than not to show. Atlantic Beach has the burden of proof because they are presenting the evidence, and then the respondent has the burden of proof to come back and say no, it didn't happen. It's very similar to a trial. Both parties present evidence. The City will present their evidence and their witnesses, and the respondent, whomever the parties are, are able to cross-examine the City. Any questions you have, no problem. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 Then you will present your side, and the City may have questions for you. I may have questions for you, so it goes back and forth. But please be respectful of everybody's time and their questions. Both parties can present evidence, testify, and present a closing. And if you have documentation that you're going to present as evidence, you need to tell us because we need to introduce it, have it marked, and make sure the City has a copy and you have a copy obviously, so it is part of the record. We have to have -- your witnesses that you're presenting have to have actual knowledge, not just I heard." That's called hearsay. So whoever is presenting something has to say, "I know, I saw, this is what happened." We follow the rules of evidence, like I said, although it's a little relaxed, but we still follow it. If you provide documents, again, if you didn't make copies, let us know. We can try and make copies for you. The decision is verbally announced and then written in an order following up. As you probably received in your notice, if there is a fine, it's up to $250 a day for an infraction from the first offense, $500 a day for a repeat offense, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 and if it's determined there is irreparable harm, it could be up to $5 ,000. That's in the ordinance. That's what people need to understand. You can appeal the ruling. If you file an appeal with the City, you have to do it within ten days of when the order is issued. It must be a mistake of fact or newly discovered evidence, not that you just didn't like it. So you have to think about that. After that, you can appeal to the county court -- I 'm sorry -- the circuit courts. You can appeal there in Duval County and have a whole appeal process, which is a lot more involved. You have 30 days to appeal that after our ten days. Our procedures -- all of you that are sworn in can accept the C ity 's recommendation. You can say no. If you don't a gree with it, that's fine. Just let me know. I know that the City has a packet of evidence. Can we mark that now and be presented? That means the slideshow as well. Have you presented that? MS. I RIZARRY: Yes, we have a copy of that. This was prepared by myself based on City department records. THE MAGISTRATE: Okay. So that will be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 admitted as evidence and any slideshow that goes with it. Thank you. Does anyone have any questions on procedure before we go forward? All right. Then I guess we'll go forward with the first -- we've approved the minutes. So old business? City's Exhibit No. 1 received in evidence.) MS. IRIZARRY: Let me just -- I 'm going to share the slideshow so that those watching remotely can also follow along. Okay. Our first old business item is the property address 1340 Violet Street. Case No. 20-154 heard) THE MAGISTRATE: This is Case 21-0 87. MS. IRIZARRY: Yes, this is Case 21-0 87, City of Atlantic Beach. The respondent is Thomas Patrick Bourdon. The address is 342 19th Street. This again is a follow-up to previous hearings. This case was heard in July and also in September. If you recall, this property owner purchased this property and had 20 trees removed from the property. This is just a photo showing the trees stacked in the front yard. This was done without a permit. Also, it was determined that due -- the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 trees were removed under the old code, and since our tree code has changed, we are treating him under the code that was in existence at the time of the tree removal. Based on that code, any tree over six inches in diameter would have been protected due to the fact they had over $10,000 worth of work, worth of permitted work, on the property. After the fact, they did submit -- we made contact with the homeowner. In August we posted a stop-work order. We made contact with the homeowner. He did submit an after-the-fact permit application. The mitigation was calculated on his property, and it was determined that he owed either 226 inches or $33,448 in mitigation costs. Just to let you know, these are the formulas that are used according to Section 23-33, Mitigation." There are two classifications of regulated trees . One is protected. One is heritage. These trees were considered protected trees due to the $10,000 permit work trigger. So as a private parcel, this is the chart that was used to calculate his mitigation. THE MAGISTRATE: Can you tell me the amount again? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 MS. IRIZARRY: $33,448 or 226 caliper inches of tree. THE MAGISTRATE: You mean to replace? MS. IRIZARRY: Yes. As I stated, this case was heard in both July and September. Just to summarize, after the July hearing, the respondent was given 30 days to research mitigation and any applicable Florida statutes and submit a mitigation report to the City. That report was due on August 20th. We did -- we received it on September 1 st after business hours. And so at the September hearing we had not had the chance to review that report and so therefore any fines were deferred. They were held in reserve and we asked for time in order to review his mitigation plan. We also ordered that if things had not reached a resolution that we would return and review again at this hearing. Clearly, a resolution has not been reached yet in this case. We are asking that those fines that were held in reserve be imposed. And the reasons, the documentation that they submitted on September 1 st was insufficient. They did submit -- and I do have, if you wanted to follow along, it starts on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 page 1 21 of your a genda packet. He submitted our calculation worksheet that was modified and submitted it back to us along with a letter claiming that the trees were exempt for two reasons: one, that they were exempt due to Florida Statute 1 6 3 .0 4 5 , and that also that they believed the property had preservation credits. The letter that they submitted -- according to the statute, it says that the letter has to be determined by a registered landscape architect or licensed arborist. The letter that was presented to us on that September 1 st was not -- had no name, no certification number, no company name, so therefore it didn't meet the requirement of being submitted by one of those people, certified people. We did respond back in writing in detail to him and we sent a response back on September 14th outlining those reasons , that it was insufficient due to the lack of information on the professional that reviewed it and that the tree code regarding preservation credits was misinterpreted. After we sent that back to him, Amanda Askew, who is here in the audience, corresponded with him back and forth for a couple weeks, and we sent it on the 14th. We did ask to have a response back 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 from them by October 1 st in order to keep this moving along. So Amanda followed up with him a week later on the 14th to make sure that he received our written response back to him. He responded back on the 23rd that he had. He did have some questions and wanted some clarification. So he did correspond via email and phone call with Amanda Askew, who again is here in the audience, to get clarification. We did receive a report. He also asked to submit a settlement offer to the City on the mitigation. THE MAGISTRATE: The City requested? MS. IRIZARRY: No. Mr. Sanders, on behalf of the respondent, asked for a settlement offer. The code doesn't have a provision for that. The amount of mitigation is just based on inches and numbers of trees removed, so it's not an option in our code to settle on the mitigation. So that's not something that we were able to work with him on. On October 25th, we received a revised report back from Mr. Sanders. The City did review that report. We do still feel that it is deficient. It doesn't meet the intent of the state statute. There are two questions that we raised and we sent that information back to Karl Sanders but we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 haven't received an answer on. The excerpt up on the screen is a snapshot directly from the report that he sent us and it is in your packet. Paragraph 4 says that "On or about July 23rd Mr. and Mrs. Bourdon closed on the purchase of their family's new home at 342 19th Street in Atlantic Beach. Shortly thereafter and prior to relocating the family to Florida, Mr. Bourdon was advised that he should promptly have certain trees on the property removed, as they posed a danger to both the existing single-family home located on the Bourdon residence and the property of the adjoining neighbor on the eastern side of the Bourdon residence." The report that we received from the landscape architect was dated October 21st by a gentleman named Michael Miller, who according to D B P R is an active, licensed, registered landscape architect who resides in Orlando, Florida. We saw no indication that he was the one who advised the homeowner that those trees needed to be removed. This report was signed over 400 days after the trees had been removed. So in that paragraph 4 , we questioned who it was who advised Mr. Bourdon that he should have 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 those trees removed, saying that they are dangerous. Our other question, in paragraphs 10 and 11 from that same report, the landscape architect , Mr. Miller, states that in his professional opinion, those trees were a danger. He called out the hickory tree in one line and the palm trees in the other line. He says a total of 15 -- 14 palms plus the hickory -- of the 20 trees are a danger to either Mr. Bourdon's residence or neighboring property. We questioned how he made that determination over a year after the trees were removed. There were no trees. They were gone. Did he look at photos ? Was he familiar with the property? And we questioned how that determination and what methodology was used in order to certify that information. So at this time, the City feels that we still do not have a mitigation report as requested from the homeowner. The mitigation has not been met, the trees have not been planted, and no mitigation has been paid into the mitigation fund. So at this time we deem him still in violation of the code. THE MAGISTRATE: What is the City asking for? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 MS. IRIZARRY: The City is asking that the fines that were reserved of $50 a day starting at the August 20th deadline be imposed and that they continue until the trees are planted or the mitigation is paid. THE MAGISTRATE: Anybody from the respondent that has questions to cross-examine the City? MR. SANDERS: Thank you. Good morning -- or afternoon, I guess. My name is Karl Sanders with the law firm KJS Law, P .A ., 110 2 A 1 A North, Ponte Vedra Beach, Florida. I represent Mr. Bourdon. I do have several arguments I would like to make, but if I may at this time ask a couple questions of the City. THE MAGISTRATE: Absolutely. This is the cross and then -- MR. SANDERS: Thank you. Just wanted to make sure. CROSS-EXAMINATION BY MR. SANDERS: Q.Ms. I rizarry, you indicated that a permit was required because of a $10,000 permit trigger; is that correct. A.That is correct. Q.What is the $10,000 permit trigger? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 A.So the code read that if you have in the prior two years or in the upcoming two years plan on doing 10,000 worth of work, then you are required at that time of the code to submit a tree permit application. On this property, I have those permits. Q.Do you know what section of the code that is? A.It was Section 23-8 . THE MAGISTRATE: So the City is saying if there is $10,000 or more of work to do two years before or after, there's a permit that has to be submitted? MS. IRIZARRY: Correct. It says r egulated trees include those with a diameter at breast height of six inches or more on a residentially zoned property that will be removed two years prior to or two years subsequent to construction valued at over $10,000. And then these are the permits that were issued at that address. So as you can see, they far exceed $10,000. BY MR. SANDERS: Q.That section of the tree protection ordinance is not 23-8 . I believe it's 23-22. Is that correct? MR. SANDERS: I have a copy. I 'm pulling it up. A.Can I have your copy? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 Q.Yes. One second. I have an extra copy. MR. SANDERS: If I may approach, I have a copy for the special magistrate. THE MAGISTRATE: Thank you. MR. SANDERS: I just handed the special magistrate the complete copy of Chapter 23 of the City's ordinance code, which is the tree protection ordinance. And I would direct your attention to page 9 . Excuse me. Yeah. It's page 9 . It's entitled "Division 3 , Permits, Section 23-21, Permits required," and Section 23-22, "Exemptions from the requirement for a permit." THE MAGISTRATE: Let the record reflect that counsel provided the relevant code to the City. Respondent's Exhibit No. 1 received in evidence.) BY MR. SANDERS: Q.So, Ms. I rizarry, Section 23-21, as I just indicated, outlines situations where permits are in fact required; is that correct? A.Is this the -- did you print this off the municipal code that is on our website today? Because we are operating under the old tree code, not the new. Q.This is the copy of the tree ordinance that was in effect at the time that the violation notice was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 sent to Mr. Bourdon, which is -- so, yes. It's not the new one. I 've got that one for later. So again, the question is for permits; there are two provisions. 23-21 outlines those situations where a permit is conclusively required and Section 23-22 sets forth the exemptions from the requirement for a permit. And under 23-21, of course, well, a permit is required under sub 2 for what's called a major development on all existing developed sites; is that correct? A.23-21, Section 2 , defines that as activity valued at $10,000 or more. Q.I will let the ordinance speak for itself. And then under 23-22, "Exemptions from the requirement of permit," when you're talking about a piece of property that is already developed like Mr. Bourdon's , I believe what's referred to as the 10,000 permit trigger is in 23-22, s ubsection 1 , which is titled "No development activity or minor development activity on previously developed sites." Is that correct? A.Yes, and that is defined as less than $10,000. Q.What is defined as less than $10,000? A.The value of the permits. Q.So regardless of what the permit is for, if a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 property owner has to secure a permit of any type from the City of Atlantic Beach, that would be considered minor development activity if the amount or the value of that permit was $10,000 or greater? A.Correct. Anything over $10,000, and it does say here in the code that the permits are added together. It's cumulative; in a two-year period meets the definition of "major" and triggers the tree code. Q.Again, your testimony is that it doesn't matter what type of permit it is -- A.Correct. Q.-- as long as you get a building permit? A.It's the valuation. Q.Gotcha. I will reserve argument on that later. I just wanted to make sure that was clarified and I understood the City's position correctly. Along those same lines, did you present any evidence indicating -- other than your testimony, any evidence backing up the assertion that the $10,000 permit trigger applies here? A.I have listed the permits and the value of each permit that has been issued on this property. Those are easily obtainable, and I can have the building department print those off, if you would like. Q.Can we get copies of those? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 A.Absolutely. Q.I mean in the record today. That's what I 'm asking. A.Not in the record today. Q.Just so the record reflects, I believe you're referencing the PowerPoint presentation that you have titled Case No. 21-087, permits issued for this address, and it looks like there are four. What is the first one, E R E S 20-0 2 11? A.That would be an electrical permit. Q.Electrical permit, so didn't involve any exterior improvements; is that correct? A.It doesn't matter. It's based on the value of the permit. Q.That's not my question. Did it involve any external improvements to the property? A.I would have to review the permit. Q.It's for an electrical permit. A.They could have electrical work outside. I don't have the permit in front of me. Q.Let's go on to the next one. What is -- and I apologize. My eyes are bad. I believe it's -- I feel like I 'm at the eye doctor -- P L R S 20-1 3 1 for $2 ,500. What type of permit is that? A.That's a plumbing permit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 Q.So we've got an electrical permit for $2 ,500, a plumbing permit of $2 ,500. The next one is R E R F 2 0 -153, valued at 13,000. What is that? A.Roofing permit. Q.Roofing permit for 13. And lastly is R E S 20-2 26 for 11,800. What is that for? A.That is for some type of residential alteration. Q.Like interior renovations? A.It could be. Q.You don't know that to be the case? A.I don't have the permit in front of me. I don't know everything that was included. Q.I do have a copy because you previously sent it to me. Bear with me. I will pull it out. I don't have a copy of the first two, though. So this is a copy of R E S -- pardon me -- RES20-2 26, building permit application. "Describe in detail the work to be performed." If you could, read that and what it's for. A."Updated floors, kitchen, bathrooms , roof, windows, landscaping, painting, wall removal." Q.Interior renovations; correct? A.Again, these permits are based on the valuation, not what they're for. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 Q.That wasn't my question. The description there is for interior renovations to the house; correct? A.Appears to be, correct, and landscaping. Q.I 'm sorry. Do you need a building permit for landscaping? A.They added it on the application. Q.I 'm asking you. Do you need a building permit for -- A.If you are changing grading or if you are going to put in hardscape that affects impervious surface or removing trees, those items would require a permit. MR. SANDERS: I 'm just going to submit a copy of this building permit application for the C ity as an exhibit for the record. I 'm looking for a date here. Notarized on August 12th of 2020. THE MAGISTRATE: Just remind me, Mr. Sanders, what is -- this appears to be a building permit, as you said. MR. SANDERS: That's a copy of the Building Permit Application filed with the City for RES20-2 26, which was for interior renovations to Mr. Bourdon's home. THE MAGISTRATE: You would like to submit this, I 'm assuming, as 2 since you gave the code as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 1 ? MR. SANDERS: Yes. Thank you. THE MAGISTRATE: This will be accepted. Building Permit Application will be Respondent's No. 2 as evidence. Do you have a copy for the City? Does the City need to see it? Respondent's Exhibit No. 2 received in evidence.) MS. IRIZARRY: I 've seen it. MR. SANDERS: She just reviewed it. MR. SANDERS: I also have a copy of the Building Permit Application for R E R F 20-1 53, notarized August 3 rd of 2020, I would like to submit as Exhibit No. 3 . I will show a copy first to the City. For the record, that is Exhibit No. 3 , which is the Building Permit Application to replace some of the shingles on the roof of Mr. Bourdon's home. Respondent's Exhibit No. 3 received in evidence.) BY MR. SANDERS: Q.Again, just to summarize, I think you already answered this and I will make sure it's clear again that the City's position is once what you refer to as the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 10,000 permit trigger is hit, a tree permit is required; correct? A.That is correct. Q.So it's basically just the valuation of the permit, not the description of the activity on the permit? A.Correct. Q.Okay. And the trees were removed on what date? A.The stop-work order was posted on August 20th, and at that time the trees were piled up in the yard, so it was prior to August 20th. Q.The last question that I have and I will reserve my argument for later is -- actually two questions. With respect to the documentation from the registered landscape architect that you referenced earlier that was provided to you on October 25th, your testimony is that that documentation is insufficient to exempt Mr. Bourdon from the permit requirement of the code? A.That is correct. Q.Okay. Last thing I want to direct your attention to, I 'm looking at the latest notice of hearing here for this proceeding, and the citations that were issued to Mr. Bourdon are for two sections of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 ordinance code. I just want to make sure that we are looking at the correct ones. The first one is identified as 23-51(b ). The second one is 23-46, both of which are the tree protection ordinance. So can you explain the nature of the violation of 23-51(b ), failure to obtain a permit? A.If you read on, it says "Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit." The trees were removed in violation of the chapter. No permit was submitted or issued for it. Q.Understood that's the City's assertion, but again -- A.And at this time the fact has not been finalized -- the after-the-fact permit has not been finalized. Q.Just so I 'm clear on the purpose of this proceeding, if the trees were removed from Mr. Bourdon's property and no permit was required as a matter of law, they would not have been removed in violation of the chapter; correct? A.According to our code, the trees did require a permit. Q.Wasn't my question. If they -- strike that. Let me back up. 23-46, the other citation, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 can you explain the nature of what Mr. Bourdon did or didn't do that triggers -- A.It states the violation included failure to make proper application or failure to implement any requirements or conditions shall be deemed a violation of this chapter. So he has not implemented any mitigation plan. Q.I 'm sorry. 23-46 refers to a mitigation plan? A.It says ". . .failure to implement any requirement or conditions of a tree or vegetation removal permit." So a condition of issuing a permit for this property would be to meet mitigation, and we have not -- he has not implemented any mitigation plan, nor have we a greed to one. Q.Has a permit been issued? A.It has not. Q.So he is being cited for failure to implement the requirements of a permit that the City has not issued; is that correct? A.Correct. MR. SANDERS: Those are all the questions I have for right now. Thank you. THE MAGISTRATE: Does the City have anything further in their case presentation? MS. IRIZARRY: No, we do not. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 THE MAGISTRATE: No other witnesses? MS. IRIZARRY: Not at this time, no. THE MAGISTRATE: Mr. Sanders, you can stay there and -- MR. SANDERS: Thank you. Still Karl Sanders. I first want to give a little background, summary background of this case and how we got to this point, and then I will hone in on the issues that I think are properly before the special magistrate this afternoon, all of which are essentially pure questions of law, and I will go through those arguments in kind in just a moment. But for the record, what I do have here is -- I will start first by saying, as Ms. I rizarry indicated earlier, this issue started sometime in August of 2020. Mr. Bourdon and his wife and young child purchased a home during the height of the COVID crisis, first home in the state of Florida, first home in the City of Atlantic Beach, closed on that, I believe, in July of 2020. And after the closing, as part of the process of getting the house in order before moving his family down, he had various items done, such as the permits that you saw issued for shingles on the roof, interior renovations, and the like. One of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 the other items that he had done was to have some trees removed from the property because he was advised that they posed a danger to persons or property at the time, so including the structural integrity of the house, and so he had that done. I say this as a preface because I came into the picture a long time after this. When Mr. Bourdon was contacted by the City sometime after the stop-work order was issued and notified that he needed a permit, had to pay a fine or a fee and was given a form to fill out, he said, Absolutely. How much?" When he ultimately received documentation and mitigation plan from the City in September of 2020 with the total sum of $33,000, he was a little sur prised, to put it kindly. And subsequent to that, Mr. Bourdon engaged me to assist him in this to see if we could work out a solution with the City. We have -- and what I would like to submit for the record here -- is what's in the record. When I say "we," I have been in contact with the City, princip ally with Ms. Askew, trying to work out a solution to this that did not entail a proceeding, a code enforcement proceeding. And as Ms. I rizarry 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 indicated, we have not been able to get to that point. For the record, all of this is Composite Exhibit No. 4 . THE MAGISTRATE: Received Composite Exhibit No. 4 . It appears to be a multitude of emails and correspondence. MR. SANDERS: Yes. Respondent's Composite Exhibit No. 4 received in evidence.) THE MAGISTRATE: Does the City have a copy of this? MR. SANDERS: I can provide them with one. But just for the record, what those are -- and I 'm not going to be going through them line by line. Don't worry. It's just essentially to -- essentially, it is a printout of all the electronic correspondence between the City and myself since March or May of 2021 in our attempts to try to find a compromise here and a workable solution that did not entail paying $33,000 as a fine. So I won't belabor the point by going into the details of what did or didn't happen, but this is the first hearing that we've had an opportunity to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 present our case on the merit s . The other two hearings, the first one we requested a deferr al of that hearing, as I did not receive a copy of the notice and had a conflict out of town. And the second one, as Your Honor may recall, is when the City had just received correspondence from me outlining the initial findings of our registered landscape architect as to the subject trees that were removed, both in terms of which ones presented a danger to persons and property and also as to calculating the appropriate mitigation amount. So where are we today? I would like to go back to the -- I believe it's Exhibit No. 1 , which is a copy of the ordinance, Chapter 23, the tree protection ordinance, and go back to the same language that we were looking at earlier, which is in Division 3 . THE MAGISTRATE: Are you looking at 23-22? MR. SANDERS: Both 23-22 and -21. So 23-21, as the plain language of the ordinance code states, sets forth the circumstances under which a permit is required, period, end of story. Where you have a site that has a piece of dirt that has already been developed, those situations 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 are limited. One, it's if there is, it says -- s ubsection 2 indicates if a major development has occurred on that site a permit is required, and sets forth examples of types of major -- excuse me major developments such as additions, upgrades, site changes, and the like. Additionally, the s ubsection 4 identifies, regardless of whether the site has been developed or not, a permit is required for removal of any tree on the Atlantic Beach legacy tree list. As the materials of the City indicate, one of the trees that was removed from Mr. Bourdon's property was a hickory tree, and that is or was defined as a legacy tree. So therefore, under the plain language of the code, a permit would have been required for that absent some other exemption, regardless of what type of development did or did not occur on the site. So that's what we started with. And then 23-22 again of course sets forth the exemptions to the rule, the exceptions to the rule. In particular, subsection 1 , which is the language we were discussing earlier with Ms. I r i z a r r y , subsection 1 identifies two types of activities that describe situations where a permit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 would be required if you have -- excuse me. I said that backwards. Obviously it's exemption language, so it describes situations where you would not need to get a permit. Subsection 1 identifies two types of activities, no development activity or no minor development activity. And as Ms. I rizarry previously testified to, once you -- she referred to it as a $10,000 permit trigger. Once a permit -- I guess if the permit or combination thereof is valued at more than $10,000, then it transforms from minor development activity to major development activity, thereby requiring a permit, which is how we get back to 23-21. And again, that's just for minor development activity. It does not indicate what "no development activity" means. But let's stick with minor development activity for a minute. The plain language of the ordinance clearly states that the focal point is on the term "Development," and examples of minor development activity are listed in that provision and includes any new construction, not what we have here; any exterior additions, not what we have here; any renovations or upgrades. And the question there is, is it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 exterior renovations ? Is it exterior upgrades to the property? Or can it also include interior renovations and upgrades? I believe that as written, principles of grammar, that "exterior" applies to all three, exterior additions, renovations, or exterior upgrades, and here is why. THE MAGISTRATE: I just want to make sure I 'm following you. You're reading from 23? MR. SANDERS: Dash 22, sub 1 . THE MAGISTRATE: Got that one. MR. SANDERS: Again, minor development activity involves new construction, exterior additions, renovations, or upgrades valued at less than $10,000. So the first question that we had, if there's any confusion, the operative word here is Development." No development activity or minor development activity. So what is "Development," which is where I was trying to go with my question. So if you would look at the copy of the ordinance code that I provided earlier, I will direct you to the "Definitions" section, which starts on page 2 , which is 23-8 . And if you go to page 3 , you see that that is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 in fact a defined term, "Development or development activity." And here is what it says: "Development or development activity shall mean any alteration of the natural environment which requires the approval of a development or site plan and issuance of a development permit." None of these permits that are referenced by the City, not a single one of them, required a development plan, a site plan, or issuance of a development permit. Again, a development permit is a term of art. It's actually defined by state law as well, but it is not a building permit. These are building permits, which are entirely different. Development permit is when you are moving dirt. That is not what happened here. So presumably, this definition is referring to raw land and building something. Additionally, it says it shall also include the thinning or removal of trees from an undeveloped land, undeveloped lot, including in a forest management program. In this particular case, we do not have an undeveloped lot. It's developed. Again, words have meaning and those meanings are important. The words are important. So you don't have -- it doesn't meet the first 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 part of the definition, doesn't meet the second part of the definition. If you go to the third part, ". . .shall also include activities defined as development within Section 24-17 of this Code of Ordinances." Section 24-17 is referencing Chapter 24 of the Code of Ordinances, which is the land development code, or colloquially referred to as your zoning regulations. And I would like to identify this as Exhibit No. -- I believe we're on 5 . THE MAGISTRATE: 5 . MR. SANDERS: -- which is an excerpt of the City Code of Ordinances, Section 24-17. THE MAGISTRATE: It will be admitted as No. 5 from the respondent. Respondent's Exhibit No. 5 received in evidence.) MR. SANDERS: I will direct your attention to page 5 , where that provision defines the term Development" and does so even more clearly than 23, which is exactly why you look at this for additional clarification. 23- -- excuse me. It's all 24-17, but under the term "Development," the defined term is Development and redevelopment shall mean the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 following," and I will just go to the ones that apply. Subsection B , "The following activity shall be taken for purposes of this chapter to involve development, as defined in this section." Sub 1 , "A reconstruction alteration of the size or material change in the external a ppearance of a structure on land," and that is the definitive answer to this issue of what does or does not constitute development activity. By the City's own ordinance code, it defines "Development" in the context of the code language as meaning reconstructing a structure. That didn't happen here. Altering the size of the structure, the building footprint, that didn't happen. Or a material change in the external appearance of the structure or land; clearly, any interior renovations, building permit for interior renovations, contrary to the City's position, would not in fact be deemed development as defined by the C ity's ordinance code. And if you turn to the following page, page 6 , I 'd direct your attention to subsection C . The City's ordinance code gives examples of what does not constitute development for purposes of this chapter. And in particular, subsection C and Sub 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 3 , "Work for maintenance, renewal, improvement, or alteration of any structure, if the work affects only the interior or the color of the structure or the decoration of the exterior of the structure." So of the permits c ited by the City in connection with this so-called $10,000 permit trigger, they simply don't apply. Because the plain language of the City's ordinance, there was no development here. Nothing that Mr. Bourdon pulled a permit for changed the external appearance of his structure. Electrical permit doesn't do that. Plumbing permit doesn 't do that. Changing out the shingles on a roof doesn't do that. And interior renovations to the kitchen and bathroom does not do that. So that is our first argument, number one, for Your Honor's consideration. And that's the first, again, legal argument, purely a question of law, which is to reiterate under Section 23-22 of the tree ordinance code for exemptions for requiring a tree permit what constitutes (A ), no development activity or (B ), minor development activity. And I will submit to you that it involves far more than looking at the dollar amount of the projected valuation of the improvements. You actually have 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 to look at the activity that's at issue in order to determine whether or not that's development as defined in the code. And in this case, it is not. Secondly, on the issue of -- and, again, I was asking these questions earlier as it pertains to what Mr. Bourdon was cited for, again, sanctions for failure to obtain a permit. Number one, we don't believe that he was required to obtain a permit for any of the trees on the property that were not identified as a legacy tree. Legacy tree, there's no question valuation doesn't come into play. That's the one hickory tree that was removed. So if a permit was not required for the other trees, then of course he's not in violation, and we don't believe the permit was required. So what about the legacy tree? This is where the registered landscape architect comes into play and this is where the legal preemption argument comes into play, and I would like to take a few moments, if I may, to walk through that. I will identify this, if we may, as Composite Exhibit No. 6 . THE MAGISTRATE: Received Composite Exhibit No. 6 , which appears to be six pages of Florida House of Representatives court recordings or -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 Respondent's Exhibit No. 6 received in evidence.) MR. SANDERS: The first couple pages is the attachment of the enrolled bill, committee substitute H ouse Bill 1159, the 2019 legislature, as it pertains to Section 1 63.0 45, Florida Statutes, and have also included a copy of the language of the statute, 1 63.0 45, which is the second-to-last page in this packet. And the final page in this packet is a memorandum dated January 10, 2020, from the Speaker of the Florida House of Representatives regarding this particular piece of legislation and this law. THE MAGISTRATE: Does the City have any objection? Have you seen this? MS. IRIZARRY: I have not seen that. THE MAGISTRATE: This needs to be presented. Do you have another one, Mr. Sanders? MR. SANDERS: I 've got -- I do have one to see if she has no objection to it. THE MAGISTRATE: Sure. Are you saying that the redlined or modified was a dopted in the code? Is that what you're saying? MR. SANDERS: That is correct. What 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 is -- again, the second-to-last page, which is the current version of 1 63.0 45, is the result of that first document, which is the redline of the original legislation passed by the legislature in 2019, which included other subjects as well but this one in particular. THE MAGISTRATE: So in other words, you're trying to introduce historical background for the premise of 163.045? MR. SANDERS: Exactly. Both historical background as well as the plain language of the statute itself. And if the City -- MS. IRIZARRY: Can the C ity have just a few minutes to look over all the information that he's brought at the meeting? THE MAGISTRATE: Yeah. And I 'm thinking more and more that's where we're going to have to go anyway. And I don't want to interrupt you, Mr. Sanders. I 'm so sorry. But I think the City is going to need to look at the background, and Ms. I rizarry has told me she didn't really know the intricacies of this. And what you're telling me, I see some things with exterior. Roofing can be exterior. I don't know if plumbing is. I don't know if electrical was. I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 don't know if they took down power -- I mean, I have no idea. So I 'm thinking the same thing you all are. Somebody is going to need a little more detail. I 'm following what the respondent is saying. But if the City is going to move forward to follow up on this, we might need a little more information. I 'm just asking right now, which the City may have or may not. But I wasn't sure about your -- MS. IRIZARRY: We just need a f ew minutes, because he's brought additional information. Of course, a lot of this stuff I 've seen before. But I do just want to take a minute to re-read and reabsorb so that I make sure that I 'm responding properly. MR. SANDERS: That's fine. Again, it's the statute. THE MAGISTRATE: I do have one question that the City brought up while she is reviewing, Mr. Sanders. MR. SANDERS: Sure. THE MAGISTRATE: Who was the initial person that told your client that they needed to be removed for the e n dangering of the stability of the home, et cetera? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 MR. SANDERS: I do not have the name of that person, and for reasons that I will get to in just a minute, and I would respectfully submit it's irrelevant and it's a legal argument. I will explain why. THE MAGISTRATE: Understood. MR. SANDERS: Presumably, it was the -- it was either -- again, I think Mr. Bourdon was doing this remotely from Boston. It was either the home inspector or the tree person who actually did the removals, or both. And so while she's taking a look at that, let me, if I may, direct your attention to the same packet, the second-to-last page, which is the statutory language, which the City is familiar with. And these arguments for this position that I 'm presenting to you today should come as absolutely no surprise to the City because it's precisely the same things that I have been discussing with the City since back in April or May of last year. Again, we were unable to come to an a greement on how to resolve this, which is why I am going forward with the legal arguments that I previously advanced to the City on multiple occasions. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 So Section 1 63.0 45, it's in that packet. It's also in materials that the City previously submitted in their initial presentation. It's part of the declaration from a registered landscape architect . That statutory provision, Chapter 163, is the statute which governs regulation of land in local governments, zoning issues in particular, which is what I specialize in and I 've done this for 25 years. In 2019, the legislature a dopted a new law to insert into Chapter 1 63, now 163.045, to deal with the issue of local governments that require tree permits for removing trees on residential properties of single-family homeowners, if you will, as opposed to land developers, commercial developers, developers of vacant land. This pertains to properties of a single-family homeowner or homeowners where there is an existing structure or existing trees. And the language of the statute is very clear. It's a preemption statute. "Preemp tion" of course means that the regulatory authority that a municipality would otherwise have under the terms of both state law and state constitution can in fact by preempted by the state legislature. They 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 can create municipalities and they can take them away. And periodically they do enact provisions to restrict or preempt the ability of municipalities or counties from enacting local regulations on certain subjects. This is one of them. And the statute reads as follows: "A local government may not require a notice, an application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arbori st or a Florida-licensed landscape architect that the tree presents a danger to persons or property." And that's the focus of our argument here. So what the City would -- as they previously stated, the City, number one -- and I believe they stated this initially at the hearing when I wasn't here. The position was that the statute only applies if you provide that documentation prior to removal of trees. That's not what the statute says. There is no ambiguity there. The City's position now is, well, the statute, yeah, it applies, but only if we a gree with the findings of the landscape architect, only if we are able to document or establish that we believe the terms of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 the Florida-licensed landscape architect's position. THE MAGISTRATE: Are you saying the City is saying it's not required prior to removal now? MR. SANDERS: I believe they acknowledged back in July that the statute doesn 't require that, but I don't believe that they're -- and you can ask the City. My understanding of their interpretation today is that the documentation has to include certain facts as to the methodology employed, as to who was spoken with, additional details that the City can determine if they -- if it's sufficient or not. So basically the City has the opportunity to determine the sufficiency of the documentation supplied by the landscape architect. And it is my position that it is abundantly clear in the statute no such authority exists. What this statute does is express preemp tion, and it's a kin to in other contexts what we would refer to as strict liability; right? So if you've got a strict liability, dangerous instrumentality like a car, if you own a dangerous instrumentality, someone else is driving it, a car, and they get in an accident, there's strict liability for the owner. Negligence, fault, none of that matters. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 Those details don't matter. It's if you've got this, then you've got that. It's very similar here, sort of -- obviously not strict liability. It's almost strict immunity. If a residential homeowner acquires documentation from a Florida-licensed landscape architect that states a tree presented a danger to persons or property at the time of its removal, we're done. THE MAGISTRATE: That's my question, at the time of removal. So I 'm with you and I 'm following you. I questioned, too, the same thing. Again, I haven't read the historical background on it, but I don't see the statute saying it could be ten years after the removal or three years after the removal. So that's my question. MR. SANDERS: My reply would be that it's -- just like you can't detract from words that are in the statutes, you can't add words there either. And just for the record, I know you already have a copy or it was referenced here, but this is -- are we at 6 ? THE MAGISTRATE: We've already had 6 . We're going to 7 . MR. SANDERS: -- No. 7 , which is the verified 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 written declaration of Michael Miller, registered landscape architect. Just for ease of reference -- THE MAGISTRATE: The Court will accept No. 7 as the Verified Declaration of Michael Miller, RLA. Respondent's Exhibit No. 7 received in evidence.) MR. SANDERS: Yes. And so what this -- and I don't know if you had a chance to previously review the terms of this declaration of Mr. Miller, but let me summarize it, if you haven't , for the record. Mr. Miller provided this after we retained his services to review the inventory of trees and documents associated with removal; photographs, documentation the City had. Everything I have, they have, including interviews with or discussions with Mr. Bourdon. And there's no dispute as to his qualifications. He's a licensed landscape architect . His RLA license number is referenced in the declaration. His credentials are impeccable. He previously served as the President of the Florida Chapter of the American Society of Landscape Architects and he currently works as a senior landscape architect and project manager for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 one of the most prominent civil engineering firms in north and central Florida, England-Thims & Miller. This is not a declaration from by a fly-by-night guy, for lack of a better term. This is a seasoned, professional, registered and licensed landscape architect. He has reviewed the evidence in this case and the documentation, and his conclusions are very clear. Of the 20 trees that were removed, 15 of them presented a danger to persons or property. So not only did the hickory tree, which he references in here, which was a legacy tree, present a danger to person or property, but there were others as well, as more fully set forth in his declaration, and as further identified in the attached exhibits to that declaration with a map of the trees that were removed and a description of the same. MS. IRIZARRY: A map that the City prepared , and those were estimated locations; it is not a survey. MR. SANDERS: I believe the map that we have in here was a map that we prepared. In fact, I know it is. The documentation that's attached to this declaration, the only map in here that was supplied by the City was the third page of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 exhibit, which looks like a site plan of the -- an as-built -- THE MAGISTRATE: Page 3 is 3 of Mr. Miller's report. Then I have your Composite Exhibit A attached to that, tree removal c alculations, mitigation worksheet. Are you talking about basically the survey? MR. SANDERS: Right. And Ms. I rizarry is correct. That attachment to Composite Exhibit A was prepared by the City. The documents prepared by the registered landscape architect are set forth in Composite Exhibit B . Those are his findings and his maps and identifications of the trees that were removed. So the issue here then is relatively straightforward. Can I take a look at that again? MS. IRIZARRY: Which thing? MR. SANDERS: Copy of the state legislation. Thank you. And then the reason I attached the copy of the approved and enrolled committee substitute House Bill 1159 was really for the title of the Act. The rest of it is obviously identical to the enrolled published statute. I will read from the first three lines. It is an act relating to private 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 property rights, creating 163.045 Florida Statutes, prohibiting local governments from requiring notices, applications, et cetera, if a property owner obtains specified documentation. This property owner obtained specified documentation, documentation that's specified in the statute. And the City's position today is that documentation isn't good enough. And with all due respect, if the City wants to have state law a mended, they should lobby the legislature, because that's not what the statute says. It's strict immunity, strict liability. Once you provide that documentation, we're done. There's no debate. It's not a factual dispute. The only factual issue would be the license of -- in this case of the landscape architect , which the City has a c knowledged that he is in fact a duly registered and licensed Florida landscape architect and has been for decades. So where does that leave us? I 'm going to try to wrap it up here. I know you have more. I 'm going to go back to -- excuse me -- the 23-22 of the tree ordinance as well as the citation -- 23-21 and 23-22, Division 3 , which identifies when you need a permit. As we discussed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 earlier, 23-21(b ) provides you need a permit to remove a legacy tree, which in this case would be the hickory tree. We now have a signed declaration from a registered landscape architect that that particular legacy tree presented a danger to person or property, pursuant to Chapter 1 63, and is therefore preemp ted. Number two, the remaining trees -- THE MAGISTRATE: That it did present or did not present? MR. SANDERS: That it did. It did. It was one of 15 trees. There were 20 trees in total removed , and of those 20, 15 he identified as presenting a danger to persons or property at the time of removal, one of which was this legacy tree. Then we go to 23-22. Even if you accept the City's argument or reading of the ordinance code as to what does or does not constitute development activity, notwithstanding the definitions in Chapter 24 of the land development regulations, even if you accepted their argument that the only issue is the valuation of the permit, we're only left with five trees that weren't otherwise p reemp ted by the terms o f the statute and declaration that we have. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 Our position is -- so there are two issues. One is preemption. If Your Honor determines that the statute does in fact preempt the City's ability to require a permit or mitigation for removal of 15 trees, then we've knocked those out. Secondly would be what constitutes development activity, and again, we looked at that earlier, Chapter 24, and our position is that is defined and entails much more than simply looking at the valuation of permits. You actually have to look at what those permits were for and what type of development activities were taking place to determine whether or not they actually constitute development under the terms of the City's ordinance code, which defines it as exterior improvements or changes, material alterations involving exterior changes to the structure, which again we do not have here, which wipes out everything, which is what we've been saying since day one, just on the legal arguments alone. And again, the City respectfully takes a different position than us, and that's fine, and believes that mitigation is in fact required. That i s not an issue that is before Your Honor today, but that is really what we've been attempting to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 discuss, negotiate in further details, myself and Ms. Askew, was with respect to mitigation. We took a position at the beginning of this. We set it before the special magistrate and argued whether or not this even applies. We'll give you something. We're not giving you $33,000. That's outrageous. So we tried to figure out -- determine whether or not that mitigation number was actually correct. We believe it is not. The City a greed that some -- that we were entitled to get preservation credits for some of the trees that remained, but not all of them, so their numbers did change a little bit, but not much. And so we decided to come before you here. Again, that's not before you today, the mitigation analysis. It's just some color as to why it is -- what it is that we've been trying to do. And Ms. I rizarry is correct. The City staff does not have legal authority to accept the settlement proposal. What we had proposed was on the mitigation number, what is the process for going and doing that. Obviously, it would entail going to city council or city commission and going through that process. And we feel very confident in our legal arguments and we will make our 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 presentation to the special magistrate and determine whether or not mitigation is even an issue. So the issue is, again, in summary, were the trees removed in violation of Chapter 23 of the city's ordinance code, i .e ., did they require a permit in order to be removed, and our position is they did not for two reasons; one was the preemption argument and, second, pursuant to the plain terms of Chapter 23 with respect to what constitutes development activity. I apologize for the length of my comments but I will stop, and if you have any questions, I 'm happy to answer them. THE MAGISTRATE: I do have one. I know the Florida House introduced this in '19 and you have a letter. When was it enacted in 2020? MR. SANDERS: It was what was -- it was approved in the 2019 -- I don't know what number that session was, but it would have became law, I 'm pretty sure, in July of 2019. Let me look at the -- THE MAGISTRATE: If it's in the 2020 statutes, that's why just I 'm asking. MR. SANDERS: Right. Well, it's the -- excuse 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 me. No. It became law -- and again, I 'm looking at the -- THE MAGISTRATE: Well, at the -- MR. SANDERS: It says 2020, because when I pulled this up, it was 2020. But if you go to the bottom, the histo ry, that's the laws of Florida number, Chapter 2019-1 55, so it would have kicked in in July of 2019. THE MAGISTRATE: Well, that's what the bill says. I just didn't know if that actually happened. MR. SANDERS: It did. I 'm sorry. I see the confusion because it says 2020 Florida Statutes. THE MAGISTRATE: No, no. I 'm still with your 2020 Florida Statutes. I just didn't know when it was enacted, because it doesn't look like it took effect in '19. MR. SANDERS: It was -- it was -- this is the -- on the first page of that exhibit, it's the -- this is the enrolled version of the bill. THE MAGISTRATE: Right. MR. SANDERS: I do know that it was 2019 laws of Florida, so usually those laws would take effect in July. THE MAGISTRATE: Right. Either way, if it is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 55 July 2020, these applications started in July and August? MS. IRIZARRY: That is correct. MR. SANDERS: Right. So even if -- and it did -- this statute took effect in summer 2019. But even if it took effect in summer 2020, these activities occurred after that. THE MAGISTRATE: I was trying to get the timing. MR. SANDERS: Thank you. I 'm sorry. THE MAGISTRATE: Does the City have any questions? I know Mr. Sanders is the attorney, but he's representing. MS. IRIZARRY: I do have a few comments regarding development and the definition. If you look at C hapter 23, it does say: Minor development activity involves any new construction," comma, "exterior additions," comma, renovations or upgrades." There's not a missed word there. It's not exterior renovations or upgrades. That's how it's written. Again, we don't add or take away from our code, as Mr. Sanders stated. So you would not add in the word "exterior" in front of "renovations" or upgrades." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 As far as the development activity, Development activity shall mean any alteration," and it says, "includes an issuance of a development permit." And when you go to the definition of development permit," "Development permit shall include any building permit," so it includes building permits as well. So that is in our code, an activity of development, and it is treated as such. Historically that is how we have operated. Any projects with an accrued value of $10,000 in a two-year period under that code section were always required to have a tree permit. THE MAGISTRATE: 23-what was talking about activity, whether it's -- MS. IRIZARRY: So on 23-22, Mr. Sanders bought up the exemptions and he claimed that it said minor development activity" and tried to exclude this type of permit from development activity, but it is not excluded. "Development" is anything that requires a development permit. And the definition of "development permit," according to Chapter 2 4 , includes building permits. Any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, all fall under development permit." 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 In regards to the preemption and the report that was submitted by the registered landscape architect over 400 days after the tree removal, we would like the opportunity to have our own expert review that report. Perhaps he can come up with how a tree that's been gone for over a year was deemed to be hazardous based on his professional expertise. So we would like a deferral to have time to be able take that action and have that report reviewed by our own landscape architect. THE MAGISTRATE: And I 'm kind of in the same line, because I also want -- you've answered my question about the development activity, whether it's -- under 24, under the definition. And then Mr. Sanders answered my question as far as the enactment of the statute. But I do think since you submitted an expert's report from Mr. Miller, which I understand was so much removed, and I don't want to read anything into the statute that's not there, but it does say an arborist, certified, or Florida landscape architect that the tree presents a danger. So I 'm not sure what the legislative intent was; "presents" now before I remove it, or it would have said "presented" a danger. So I think I would like to get some 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 evidence on that as well. So, Mr. Sanders, I 'm kind of in a greement with the City about deferring so we can get some more def initive -- plus they're entitled to have an expert look at your expert's findings. MR. SANDERS: May I respond? THE MAGISTRATE: Sure. MR. SANDERS: Two things. One, as to the City's reading of their "Definitions " section, again, they're inserting words that aren't there. What s he's saying, a development permit or a building permit can be a development permit. It absolutely can if it's development. Again, this is a term of art. It's actually defined in the statute. There are circumstances under which a building permit can be a development permit, give you a point of entry to challenge new development. But if you look at the definition, which is what she was reading from, it doesn't say it includes a development permit. It says: "Any alteration of the natural environment which requires the approval of a development or site plan and issuance of a development permit." Not includes." "And" is a conjunction. So there are two criteria in that definition. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 59 And the -- excuse me. In this particular case, you absolutely do not need a development plan or a site plan to do electrical work and pull an electrical permit or a plumbing permit or interior renovations or changing out your shingles on the roof. A development permit, again, is a term of art. That involves moving dirt or otherwise expanding the building footprint or changing the exterior of the structure. Absolutely no doubt in my mind about that. I 've been doing this for 25 years. So, again, their reading of the statute, with all due respect is just erroneous. And we would submit the statute means what it says. As to the next argument on the preemption and the City's request to have an arborist, their own person take a look at this, I would again reiterate this is -- the statute does not contemplate a battle of the experts. This is not an evidentiary issue. The only evidentiary issue is the qualifications of the person issuing the declaration. The question of law, which of course is what I believe Your Honor is struggling with, is does that documentation or analysis have to occur prior to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 the r e moval of the trees . I would say this. If you look at 1 63.0 45 again, the language, the very first thing that it prohibits a local government from requiring is a notice, prior notice. Like if you don't even have to give the City notice of something that's going on, why would your documentation have to occur before it happened? The only time this statute is triggered is when you have instances where local governments are treating tree removals on residential properties business as usual pre '19. That's what generated the whole statute in the first place. THE MAGISTRATE: Which was my question. MR. SANDERS: You get cited and then the issue is, well, did we need a permit? The very first thing that is preempted is a notice. You don't have to give a notice to a municipality that you're going to take down any trees. You know why? Because the legislature said it's none of your business. It's a private property right. It's a private property right. That was -- again, the title of the law made that very clear. The legislature was expressly taking the City out of the business of regulating the removal of trees on private residential property so long as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 you have that documentation from the arborist or the landscape architect, which we have. But it's silent as to time. Again, my position would be that if it's competing experts, then we're back to pre 2019. The legislature didn't say, "Well, here is what you have to do, but the City can. . ." The legislature didn't say it's a rebuttal or presumption. It's strict liability. This is what you do and then we're done. It doesn't matter what the City says. It doesn't matter what any other arborist says. The homeowner gets the documentation, the discussion is over, and that's what our position would be. Secondly -- and, again, you already have this in your materials from the City, but for your ease of reference, I will provide it to you. I believe this will be No. 8 , and this was the September 14th memoranda that Ms. I rizarry referenced earlier when we first provided -- I think s he described it as a letter. It wasn't a letter. It was an email summarizing the initial findings of the registered landscape architect . He had just not reduced his findings to writing. Do you have a copy of -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 THE MAGISTRATE: I do not, but I 'm familiar with that. If you want to introduce it as 8 , then we will need one. MR. SANDERS: Yes, and I will just read this, because I only have one copy. THE MAGISTRATE: You can resubmit as long as we document the record that it's No. 8 . MR. SANDERS: Yes. Page 2 of the September 14 memorandum, and this is the City's response to our preemption argument, which goes to the verb presents." If the owner obtained" -- these are the City's words , not the statute. "If the owner obtains documentation that a tree presents" -- quote/unquote "presents" -- "a danger to persons or property," which is when that statute applies. In other words, the question is whether at the time the tree was still standing, the tree, whether the tree was a danger to person or property. You have not provided us any statement that each of the removed trees constituted a danger to persons or property prior to or at the time of removal from a landscape architect." So -- and I will -- THE MAGISTRATE: This is your only copy of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 No. 8 ? You will -- Respondent's Exhibit No. 8 received in evidence.) MR. SANDERS: Yeah. I 've got it. It was emailed to me, so it's fine. The City said, "What you need" -- their position keeps changing. That's my point. The City told us in writing that "what you need is a statement from a licensed landscape architect. We don't have that." Okay. Well, I told you I would get you one. He's working on it. We will." And that statement has to say that that tree or those trees presented a danger to persons or property at the time of removal." Those are the City's words, not mine. The declaration that we have from the registered landscape architect says in no uncertain terms -- and I will look at paragraph 10 of 11. Paragraph 10, "In my professional opinion as a Florida licensed landscape architect, no permit application was required to remove the hickory tree from the Bourdon residence, as prior to its removal, the tree presented a danger to his property due to its size and proximity." As I said, it's preempted. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 Paragraph 11, similarly, "Of the remaining 19 trees that were removed, 14 of them, prior to their removal, presented a danger to persons or property located on both the Bourdon residence and the adjoining neighbor." We literally gave them exactly what they asked for, and it's not good enough, and the reason it's not good enough, it doesn't say what they want it to say. It doesn't say how they've been reading the statute, yet they've been reading it wrong from day one. And our position again is -- now we're in a position where the City says it doesn't apply because "You don't have documentation from a licensed landscape architect." We get that. They said, "Well, that's not good enough, because it has to say that it presented a danger at the time of or prior to its removal." We gave them that. That's not good enough either, because the findings weren't what they want. So now they want to get their own expert to give them an opinion, which I will venture to say will a gree with whatever they're charging and then have a battle of the experts. The statute does not cont emplate that, number one. But again, we 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 literally not only provided what the statute requires, we provided the City with what they asked for. Mr. Bourdon just wants some closure. He doesn't like paying me to stand up here and do this, and I 'm actually doing this as a favor to a friend, because it's the right thing to do. I mean, $33,000 is outrageous, and from day one he said he would give the City -- pay a reasonable fine, and we tried to find a way to do that, but we were unsuccessful. And that's no fault of Ms. Askew. She is an absolute pleasure to work with, but her hands are tied. S he does not have the legal authority to make an equitable determination and change those numbers, which is why we resorted back to the questions of law and legal argument. That being said, we will of course honor and respect your decision and answer more questions, if needed. THE MAGISTRATE: Thank you, Mr. Sanders. At this point in time, unless there's anything more from the City -- MS. IRIZARRY: Our original request stands that we have a deferr al in order to have the report reviewed. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 THE MAGISTRATE: In accordance with due justice for everybody, I think that you should be able to review it. And it may or may not rectify everything. I don't know. And this is the first time I 've seen the law that the respondent has presented very well. But I think the City should be able to review this and look, especially with eight pieces of documentation that were just presented in court today. I understand the respondent's position, and you answered my questions about even -- not the exemptions but the viability of the statute at the time, which I think the City now knows, so they would need to look at that. So my ruling would be that we do defer this. Our next meeting is in January. Is that okay? MR. SANDERS: As long as it's not January 8 th, because it's my birthday and I 've got plans. THE MAGISTRATE: It's January 8 th. I 'm just joking. Is it the 4 th? THE CLERK: Let me check. I have the date here. THE MAGISTRATE: I had a judge do that to me three years in a row. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 THE CLERK: It's the 6 th. MR. SANDERS: The 5 th? THE MAGISTRATE: 6 th. THE CLERK: 6 th. MR. SANDERS: That's fine. That's a Thursday. THE MAGISTRATE: If we can't -- and I encourage the City and Mr. Sanders after the City gets to review what they're looking at to ask you to see if there's anything after reviewing, if it opens eyes or not or what-have-you. I think a lot of what Mr. Sanders presented the City didn't have with regards to statute, and so the City has their own attorney that could look at it. MR. SANDERS: Sure. THE MAGISTRATE: If that's okay, we'll defer it until the 6 th. MR. SANDERS: Thank you so much for your time today. Case No. 21-087 adjourned 3 :38 p .m .) 68 CERTIFICATE O F REPORTER STATE OF FLORIDA ) COUNTY OF DUVAL ) I , Amy Marie Yarbrough, Florida Professional Reporter, do hereby certify that I was authorized to and did report the foregoing proceedings; and that the transcript is a true and accurate record. DATED this 26th day of August, 2022. Amy Marie Yarbrough, FPR-C Florida Professional Reporter IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FL CASE NO.: LT CASE NO: DIVISION: 2022-AP-000003 21-087 AP-A THOMAS BOURDON, Appellant, vs. CITY OF ATLANTIC BEACH, a municipal corporation, Appellee. NOTICE OF FILING HEARING TRANSCRIPT OF 01/06/2022 CODE ENFORCEMENT PROCEEDINGS Appellant, Thomas Bourdon, by and through the undersigned, hereby notices filing of the attached hearing transcript for the City of Atlantic Beach Code Enforcement Proceedings which took place on January 6, 2022. Respectfully submitted on this 7th day of October, 2022. Signature Block and Certificate of Service on following page] Filing # 158820703 E-Filed 10/07/2022 04:20:10 PM 2 KJS LAW, P.A. By: /s/ Karl J. Sanders KARL J. SANDERS, ESQ. Florida Bar No. 28452 1102 A1A N., Suite 203 Ponte Vedra Beach, FL 32082 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.com Attorney for Appellant CERTIFICATE OF SERVICE I certify that, in compliance with Fla. R. Jud. Admin. 2.516, the foregoing document has been furnished via e-mail to the counsel of record identified as Electronic Service Recipients upon filing with the Florida Courts E-Filing Portal on this 7th day of October, 2022. KJS LAW, P.A. By: /s/ Karl J. Sanders Karl J. Sanders, Esq. 1 CITY OF ATLANTIC BEACH CODE ENFORCEMENT SPECIAL MAGISTRATE MEETING Case No.: 21-087 RESPONDENT: THOMAS BOURDON Re: 342 19th Street Atlantic Beach, Florida 32233 TRANSCRIPT OF PROCEEDINGS Transcribed from Recording) DATE: Thursday, January 6 , 2022 BEFORE:Magistrate Suzanne W . Green LOCATION: 800 Seminole Road Atlantic Beach, Florida 32233 Transcribed from recording by: Amy Marie Yarbrough, FPR-C North Florida Reporting, Inc. MadamCourtReporterJax@ comcast.net Note: A portion of the recording unavailable) 2 APPEARANCES of COUNSEL On behalf of City of Atlantic Beach: WAYNE FLOWERS, Esquire BRENNA M . DURDEN, Esquire Lewis, Longman & Walker, P .A . 245 Riverside Avenue Suite 510 Jacksonville, Florida 32202 904.353.6410 wflowers@ llw-law.com bdurden@ llw-law.com On behalf of Respondent: KARL J . SANDERS, Esquire KJS Law, PA 1102 A 1 A North Suite 203 Ponte Vedra Beach, Florida 32082 904.868.7929 kjsanders@ kjslawpa.com Also Present: Angela Irizarry, Code Enforcement Officer INDEX OF EXAMINATION WITNESS: AMANDA ASKEW PAGE Direct Examination by Mr. Flowers. . . . . . . . . 5 Cross-Examination by Mr. Sanders . . . . . . . . . 10 Redirect Examination by Mr. Flowers. . . . . . . . 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 P R O C E E D I N G S THE MAGISTRATE: Now we will go to our old business, which is Case No. 21-087. MS. IRIZARRY: Yes, ma'am. This case is a continuance from the last hearing. You have heard this in July and in September and in November. This is 3 42 9 th Street [sic] for violation of our Chapter 23, our tree code. And the City -- Mr. Flowers will be presenting on behalf of the City today. MR. FLOWERS: Good afternoon. My name is Wayne Flowers. I am with the law firm of Lewis, Longman & Walker, and I will be presenting and making arguments on behalf of the City today. And as I understand it, at the conclusion of the hearing on November 4 th, the order indicates that the hearing today would be to allow the City to present rebuttal, I guess, to the evidence and perhaps remarks that were presented by Mr. Sanders at that hearing, and we're prepared to do that. And we do have some evidence that we would like to present to you today, and I have a witness that I would like to call also to talk in relation to that evidence. And I want to clarify for the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 record that the items that were presented at the prior hearings by the City, you know, by Angela, are part of the record for purposes of whatever goes on from here. Okay. THE MAGISTRATE: So we will accept the evidence as presented as part of the record. MR. FLOWERS: Okay. With that, Madam Magistrate, I would like to -- THE MAGISTRATE: Mr. Sanders, did you have a question? MR. SANDERS: Yes, ma'am. Can you hear me okay? I haven't been presented with any exhibits, didn't know anything about witnesses, but I guess we can go forward. My arguments haven't changed. But my understanding is that this was an opportunity for rebuttal of the legal arguments that were made at the last hearing. THE MAGISTRATE: That's what the order said, because there were codes that were brought up, statutes, things the City had not had a chance to review at that time. MR. SANDERS: Well, to be clear, they have, and it's referenced in prior correspondence that were part of the exhibits that were submitted last 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 time. They just wanted an opportunity, I guess, to consult again with Counsel. THE MAGISTRATE: Right. But Counsel was not here last time. MR. SANDERS: Yes. Thank you. THE MAGISTRATE: Do you have a copy of -- MR. FLOWERS: I 've not handed those -- Unintelligible simultaneous speakers) MR. FLOWERS: With that, I would like to call Amanda Askew, and I think she's already been sworn. THE MAGISTRATE: Yes. AMANDA ASKEW, called as a witness on behalf of the City of Atlantic Beach, testified as follows: DIRECT EXAMINATION BY MR. FLOWERS: Q.Ms. Askew, would you state your name for the record, please. A.I am Amanda Askew, the director of planning and community development for the City of Atlantic Beach. Q.Would you tell us for the record what your responsibilities are in your position? A.I administer Chapter 24, which is the land development regulations, and Chapter 23, which is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 affectiona t e ly called the tree code. Q.And? A.And I supervise code enforcement and have been in a supervisory role for over ten years now. Q.What responsibility do you have with regard to interpreting provisions of the Land Development Code and the tree code? A.I am the sole interpreter of both of those codes. I do consult with the City manager and the City attorney. However, if someone wishes to disa gree with my interpretation, then that -- there is a process for appeals. Q.Are you familiar with the Bourdon property and the residence that is subject of this proceeding? THE MAGISTRATE: Mr. Flowers, try speaking into the -- MR. FLOWERS: I 'm sorry. I 'm trying to face her at the same time. I apologize. BY MR. FLOWERS: Q.The question was are you familiar with the Bourdon property that's the subject of this hearing? A.Yes, I am. Q.Tell us how you're familiar with that property and what your involvement has been with it, if you would. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 A.Certainly. We received some complaints that there was trees cut down on the property. Approximately the beginning of August of 2020, I did go to the site two times and was on the property and did notice that trees were removed and then subsequently have been by the property numerous times. Q.You have before you -- or I guess maybe you don't have before you, but let me show you -- these exhibits have already been provided to the other parties. But could you take a look at Exhibit 1 . A.Okay. Q.Tell us what that is. A.Exhibit 1 is a building permit that was issued for 3 42 19th Street, and it was in the amount of 118,000 for interior remodel and windows. Q.Okay. For the record, Mr. Sanders at the last hearing introduced the building permit application that corresponds with this actual building permit. We're introducing the building permit. I believe that was Exhibit No. 2 . Would you look at the City's Exhibit No. 2 ? A.The City's Exhibit No. 2 is for the same address for -- it's a building permit issued for a r oof in the amount of $13,000. MR. FLOWERS: And for the record, Ms. Green, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 this corresponds with Respondent's Exhibit 3 , which was the building permit application for the roof replacement. Q.Did the work authorized by these building permits require a permit for removal of trees under Chapter 23 of the City's code as it existed in 2020? A.Yes, it did. Chapter 23-21 requires permits for all major development. We considered this project a major development. Q.Hold on. Can we -- can you -- we have the statutory language on the screen. Okay. A.We consider this major development because it meets the criteria of a couple of different items. It's an existing home, so it has been there for quite some time. It was having major renovations and upgrades, which correlate to 23-21(2 ). In addition, the trigger in the code says that if you have any work valued at $10,000 or more, you are considered major development. We do have both of these building permits that show that it is over $10,000. There's the building permit for the roof, which was valued at $13,000. There's also windows that were included in the previous permit that was valued at 118,000. Q.Windows was part of a whole bunch of other 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 things that collectively were valued at $118,000? A.Correct. Q.Was the actual value of the replacement of the windows split out in that permit or in that application? A.No, it was not. We also -- under 23-21, the permit is required because there was a legacy tree that was removed on the property as well. Q.There's a potentially applicable exemption included in 23-22 of the code that was mentioned by Mr. Sanders, I believe, in the prior -- one of the prior hearings. Are you familiar with that exemption? A.Yes, I am. Q.All right. Does that exemption apply to the work done on the Bourdon property? A.No, it does not apply for a couple of different reasons. As I stated previously, this is a major development and they triggered the dollar amount. They were over $10,000 in construction or renovation or upgrades to the house. Q.Going back to Section 23-21, paren -- recording malfunction) Note: Remainder of direct examination not transcribed. As noted on City of Atlantic Beach website, portion of recording unavailable.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 MR. SANDERS: Are you finished? MR. FLOWERS: Yes. CROSS-EXAMINATION Note: Audio recording malfunction at beginning of Cross-Examination) BY MR. SANDERS: Q.-- or not something was major or minor development activity triggering the requirement for a tree permit? You remember that; correct? A.I do. Q.And is your testimony today that the City looks at things other than that, or is it consistent with Ms. Irizarry's testimony at the last hearing that the only thing you look at is the number on the permit, the valuation? A.We look at both the valuation, the removal, everything under 23-21, which in this case would be major development, and then the $10,000 threshold; the removal of the legacy tree; and then under 23-8 , development activity," which calls into the definition of "development" under 24-17, which would therefore trigger the requirement for a tree removal permit. Q.Which I believe you just said was -- the language you referenced was in 23-8 , the removal of trees incidental to the development of land; correct? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 A.That was, yes, 23-8 . Q.So the threshold issue, then, is what is development"? Right? A.Yes. Q.And your code defines that, correct, which as Counsel just went through with you. Lastly, does replacing roof shingles on a home -- does that require approval of a site plan by the City? A.Yes. Well, yes, it does because it falls under the threshold of development permit. So any development permit comes in with the required paperwork in your building permit, which is a survey. Q.That's not my question. When the City requires a site plan for development, do they require the same site plan for replacing shingles on a roof that they do for new development of raw land? A.I don't take the permits in, but when we review the permits, they typically have a survey associated with it. And the survey in this instance would be as-built, so survey, site plan. Q.So was there -- okay. Well, has the City submitted any evidence that there was a site plan approved for the replacing the shingles? Because I didn't see it in the materials, but maybe I missed it. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 A.I don't think I have the entire packet here, so -- Q.Well, that's what was presented today. So in the packet that was presented to the special magistrate, there is nothing that indicates that a site plan was approved by the City of Atlantic Beach for the replacement of shingles on Mr. Bourdon's roof; correct? A.I don't think so. Q.Okay. Same holds true, presumably, for the replacement of the windows; correct? A.Correct. I don't see it in the materials. MR. SANDERS: Those are all the questions I have right now, Your Honor. Thank you. MR. FLOWERS: I have a few more questions. REDIRECT EXAMINATION BY MR. FLOWERS: Q.Under all of those various definitions of development and descriptions of what constitutes development," do all of those require a site plan associated with whatever the activity is in order to be development? Do any of them? A.Yes, they do; some of them. Q.Which one? A.Any time you are looking at adding on to the structure or upgrading the structure, going beyond the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 footprint of the structure, adding a porch, steps, impermeable surface area, pools, decks, fences. Q.My question is, though, while the City might require a site plan for certain activities, does -- to be development under these definitions, does everything have to be associated with a site plan? A.No, not necessarily. MR. FLOWERS: That's all I have. THE MAGISTRATE: Ms. Askew, did anything of this development change the footprint of the building, the shingles or the windows? THE WITNESS: No. THE MAGISTRATE: Mr. Sanders, anything else? MR. SANDERS: I have no further questions on this issue, no, Your Honor. THE MAGISTRATE: Anything else from the City as far as -- MR. FLOWERS: The City has no additional witnesses or exhibits to offer. THE MAGISTRATE: Thank you. MR. SANDERS: Closing or legal argument? THE MAGISTRATE: Yeah. If there's no more evidence that's being presented, then that's fine. Mr. Flowers, did you want to present a closing argument for the City? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 MR. FLOWERS: I do. THE MAGISTRATE: Okay. MR. FLOWERS: You have before you, as I see it here, two issues for you to determine that will ultimately determine how you resolve this case. One of those is whether under the terms of the City's tree ordinance, as it applied in 2020 when the work was done on the property, a tree removal permit was required for the work under the provisions that we've just talked about. And assuming that it did, then the second question is whether, pursuant to Section 163.045, the verified statement signed by Mr. Miller is sufficient to exempt the Bourdon property and Mr. Bourdon from the permitting requirements for those trees removed from the property that were allegedly a danger to persons or property. So I 'm going to start with the first question, which I think is the most easy to resolve, and that is did the tree removal require a permit under the City's 2020 tree code. So Mr. Bourdon obtained two building permits from the City, and we have the applications for those permits and then the permits associated with them. But the application, one of the applications, Respondent's Exhibit 2 , which was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 signed on July 28th of 2020, seeks a permit for several construction activities, including roof work and windows, with a total value of $118,000. That permit application specifically states that trees would be removed in association with the proposed project. A permit was issued. That's the City's Exhibit 1 that you see today, authorizing interior remodeling and window replacement. That was issued on September 3 rd on 2020, showing a value of the work as $118,000. And it doesn't separate out the window work, the value of the window replacement work, from the roof work or from the other work that's specified on there, which a large part of which was interior work. A second application, which was Respondent's Exhibit 3 from the last hearing, which was signed on August 3 rd of 2020, was just for the roof replacement, showing a value of work at $13,000. The corresponding building permit, which is City's Exhibit 2 , authorizing that work was issued on August 13th of 2020. So let's talk about these provisions, and I 'm not going to spend a lot of t ime, because in my judgment, you know, there are like five different 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 provisions that make this a permittable activity under the tree code. You know, the first is 23-21(2 ), which, you know, says "Major development," and "Major development" is work that is renovation work -- yeah, major development on existing developed sites where renovations or upgrades valued at $10,000 or more are captured and then removal of any legacy tree. I don't think that there's a dispute that there was at least one legacy tree that was removed. So that threshold was met. And we've heard the opinion, you know, of the director of the department responsible for interpreting the code that this was a renovation or an upgrade that again it's not disputed was valued at more than $10,000, in fact $13,000 just for the roof. You know, we don't know what the value of the work on the windows, the replacement of the windows, was. So that is the permitting threshold. We talked about the exemptions from that permitting threshold, which again is if the work was less than 10,000. We know that the work was worth more than that, so that exemption doesn't apply. So again now we go to this question of is it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 development. And we pointed to several different provisions; the definitions within the tree code, which includes -- it says, "Development is removal of trees incidental to development of land." You know, again we connect that to the 24-17 definition of "d evelopment." There was removal of trees that was incidental to the work based on the -- what the property owner put in his application. And the replacement, again, if you go to the 24-17 definition, it says A building operation." A building operation is development. So if we just stop there and don't go to any of the others -- you know, Mr. Sanders spent a lot of time about, well, does it require a site plan, you know, did it really change the exterior appearance. If we just stop here, this was a building operation, and again going back to Chapter 23, a building operation for work that was valued in excess of $10,000. So I believe that the other ones that we talked about, you know, the change in the appearance and the other items that were spoken about by Ms. Askew all bring it within the development definition as well. And, you know, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 Mr. Sanders can parse one or two of those, but if any one of them applies and meets that definition of "development," then it is something that requires a tree permit based on the value of the work done. THE MAGISTRATE: Mr. Flowers, are you reading -- I just want to follow you -- 24-17(a ), which is "Development means the carrying out of any building or mining operation or the making of any material change in the use or appearance of any structure or land and the dividing of land into three or more parcels"? Are you reading that? Is that what you're talking about with "building operation"? MR. FLOWERS: Yes, correct. THE MAGISTRATE: How do you read where you have "or," "or," and "or" and then you have "and" dividing into three parcels? MR. FLOWERS: I see that as an additional item, not one that applies to all three of those. THE MAGISTRATE: Okay. MR. FLOWERS: And again, that's just one of four or five ways that this fits in with development." So we move on to the second question. But I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 would submit to you that there's no question that the work required a tree permit under the 2020 code. The second item of course is the statute and what is the effect of the statute and how does the statement that was entered into evidence by Mr. Sanders at the last hearing doesn't meet the requirements of the statute. I would submit that the verified statement for Mr. Miller that was provided to you is insufficient on its face to relieve Mr. Bourdon from having to obtain a tree removal permit because it doesn't meet the requirements of Section 163.045. There's two critical words in the statute. One of those words is "documentation" and other word is "presents." The person claiming relief under the statute must provide documentation from a landscape architect or an arbori st that a tree presents a danger to persons or property. So I want to talk first about documents -- or documentation." There isn't a definition in this statute of those terms. There is no case law, because the statute is so new, interpreting it or those terms. But if you look at a dictionary 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 definition, the current e dition of Merriam-Webster dictionary, it defines "document" as "An original or official paper relied on as a basis, proof, or support of something." And "documentation" is the Act or instance of furnishing or authenticating with documents." So the other critical word "presents" is a present-tense word, and we would assume it was stated in the present tense purposefully by the legislature; not "presented" but "presents." That suggests that the condition existed before the act was taken, in this case the removal of the trees. So taken together, the statute requires that the property owner provide proof immediately before the property owner removes the tree that the trees or trees removed endangered persons or property, certified by an appropriate professional as designated in this statute; not that it could have endangered, not that it might have endangered, but at the moment before it was removed, it did endanger persons or property. So let's look at the statement that was provided by Mr. Sanders as proof of present endangerment. The statement says in paragraph four that sometime after July 23, 2020 -- we don't know 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 when -- an unidentified person advised Mr. Bourdon that certain trees presented a danger. We don't know if that person was Mr. Bourdon's plumber. We don't know if it was his financial advisor. We don't know if it was his newspaper delivery person. We don't know who provided this opinion at the time the trees were presenting the danger. Nothing in the statement even suggests that Mr. Miller saw the trees before they were removed, ever visited the property before he signed the statement. There's nothing that says he even looked at pictures of the trees on the property before they were removed or even after they were removed. In fact, we know that Mr. Miller was not even hired until sometime in June of 2021 or later based on emails that Mr. Sanders introduced into evidence, and that's Respondent's Exhibit 4 . That was introduced in the last hearing. The statute requires documentation from a qualified professional regarding the existence of a present danger from trees removed to gain relief from the statute. It doesn't say just an opinion. It says documentation. In other words, as the dictionary instructs, as I said a minute a go, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 something that proves the proposition asserted. Based on what is not in that statement, it cannot be held up as proof or documentation that there was a present danger associated with the trees back in July or August of 2020 when they were removed. Mr. Sanders -- well, once -- I would recall in viewing the video of the hearing on November 4 th, your observation, your question to Mr. Sanders, Does this mean somebody can go back 5 years or 10 years later or 20 years later and say those trees presented or present a danger at some point many, many years before?" And, you know, there may be circumstances under which someone could construct a proper case for that. I would suggest that doesn't exist with the evidence that you have before you right now. Mr. Sanders says very plainly that you can't parse this statement, Mr. Miller's statement. You can't scrutinize its contents or even make a determination as to its sufficiency because, one, it's signed by a landscape architect, and, two, it almost contains those magic words that the trees removed present a danger to person or property. I say "almost" because the actual word he used is presented," past tense. And I say that because 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 that's the way he puts it. So if you take that position that you don't look at and scrutinize in some fashion what's provided in the statement to determine whether it actually documents the condition that the statute requires, then you're ignoring the plain meaning of those terms in the statute, the "documentation" and the "presents." The last thing that I would say in regard to that is that in the final analysis here you're going to make a determination, and you've got to make a determination, because this is a quasi-judicial hearing, as to whether you've got competent substantial evidence before you to make a conclusion as to whether the terms of this statute have been met or complied with to determine whether the exemption applies to Mr. Bourdon. I would suggest to you you have neither competent nor substantial evidence here based on the terms and the actual language in this statement, and for that reason I would urge you to make the appropriate finding. And I think what the City is -- the relief that the City is requesting here in terms of an order would be for you to enter an order providing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 and requiring Mr. Bourdon to apply or present an application to the City for a permit with a proper tree mitigation plan, and for any payment required under that plan, that that payment be made within 45 days. And failing that, that fines in the amount of $250 per day be imposed. Did I cover the relief part properly? THE MAGISTRATE: The relief requested was -- MR. FLOWERS: I want to make sure I covered the relief requested. THE MAGISTRATE: -- an order submitting a mitigation plan and any payment required within 45 days. Failure to make that 45-day would be a 250-a -day fine. MS. DURDEN: Your Honor, may I clarify? THE MAGISTRATE: Yeah. That's what I wrote down. That's fine. MS. DURDEN: Brenn a Durden, just for the record. The City's request is that the -- Mr. Bourdon submit a mitigation plan within 30 days, that the mitigation plan should comply with the tree calculations that were - that are Exhibit 3 that was submitted into evidence today, the City's Exhibit 3 . And then in regards to the mitigation 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 plan, that the mitigation plan comply with the tree code, and that if any fees in lieu of planting trees is proposed, that those fees would be paid within 45 days of -- by the way, the dates are all from the date of your order. And then if any trees are to be -- mandatory there has to be some trees. At least some of the trees have to be planted to comply with the mitigation requirements. Those trees would need to be planted within 60 days from the date of your order. MR. FLOWERS: That's all I had. THE MAGISTRATE: That's fine. Okay. Mr. Sanders? MS. DURDEN: Thank you. MR. SANDERS: Thank you. Real quick before I get into my arguments, just on the remedy requested, I would just remind Your Honor that under Chapter 162, which is what this proceeding is proceeding under, the only issue today is whether or not a permit was required, i .e . was the removal of trees from Mr. Bourdon's property a violation of the City's ordinance code. That's the only issue. We're not here about fines. We're not here about tree mitigation plans. We're only here for 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 one thing and one thing only, whether or not a permit was required. If Your Honor determines after reviewing the evidence and the testimony that a permit is in fact required, then the statute provides that there's an opportunity to cure, which is what Ms. Durden is referencing, a time frame within which to present a -- excuse me -- a mitigation plan to the City. If that is not done, then under Chapter 162 another hearing is held before Your Honor to determine whether or not any fines should be assessed for a violation of the special magistrate's order. So it's a little bit premature to suggest that any fines for removing trees are in order. In fact, that's not even an issue here. And I refer to the actual citation or the notice of the hearing here, which references two sections purportedly that have been violated. We went through this the last time, so I won't belabor the point. It mentions two separate ones, only one of which actually applies. The first Section is 23-51, s ubsection (d ), "Sanctions for failure to obtain a permit for tree removal." That's what we're here about, whether a permit was required. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 The other citation or reference that was -- excuse me -- code citation that was on the code enforcement citation was Section 23-46, which reflects failure to make proper application for a tree removal permit. So of course you can be -- I 'm using the term "convicted" loosely. But you can't be convicted or charged with failing to apply for a tree removal permit and getting a plan approved if your position is no permit was required in the first instance. So again we respectfully submit that the sole issue before the special magistrate today is the seminal issue, which is was a permit required for the removal of trees on Mr. Bourdon's property. And of course our position is no, it was not, and for a couple reasons. And I will try to recap those briefly as well as address a couple things that -- a couple of the arguments that Counsel just made. So to summarize, as was referenced in the last hearing and again today, a permit is required for the removal of trees under Chapter 23, Section 21 and 22. That's the tree ordinance. If -- unless -- under four scenarios under 23-21, only one of which is at issue here -- excuse 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 me -- two of which, unless it's otherwise exempted, 23-22 then lays out the various exemptions to the requirement for a tree removal permit. The City's position is that under 23-21(2 ), the -- replacing the roof and doing interior renovations and replacing some windows constituted major development activity and therefore triggered the requirement for a tree removal permit, and we dispute that. The second instance in which a tree permit may be required or would be required -- excuse me -- is under sub 4 , removal of any tree on the Atlantic Beach legacy tree list. There is one tree in fact, and it's referenced in the declaration. It's a hickory tree that is on the legacy tree list. So notwithstanding all of the arguments about development or nondevelopment, it's undisputed that that tree would require a permit for removal, barring any other exemption, and our position is that the exemption for that is the preemption langu age of Chapter 163 with the declaration from the registered landscape architect. The rest of the trees onsite were palm trees and other non-legacy trees . So again the issue of Mr. -- C ounsel just went 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 through this, and I will go through the same thing briefly on this issue, of whether or not -- let's look at issue one. Was there development activity on the site? And obviously if there was not, then the discussion is over because the ordinance is very clear on that, that it only requires removal for major development or minor development activity. And again, Ms. Askew of course cited the appropriate code references in the City of Atlantic Beach development code, which are the definitional sections, which are on the screen and presented to you earlier, in 23-8 and in 24-17. The -- and I would go through these twofold. One, the seminal definition, which is the one found in the tree protection ordinance, means that development activity is any alteration of the natural environment which requires the approval of a development or site plan -- the testimony you have today is they don't have a site plan to show you that was reviewed or approved -- and issuance of a development -- "and" which is a conjunction, of course -- issuance of a development permit. They issued a building permit, which could arguably be a development under 163 for bringing a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 163 action. But that's an entirely different set of arguments and I won't go into that, and it's not, I would say, applicable here. The operative term in all of these definitions is the term development," not "permitted activity," but development" itself. And "development," again, is defined. So it includes -- what the City's position is is that it includes the removal of trees incidental to the development of land. And the City's position is, well, they developed the land and removed trees incidental to that, so clearly a permit was required. That presupposes that they developed the land as defined under the code, and our position is there was no development because that term is clearly defined. There's nothing ambiguous about it. It requires -- that's mandatory. That's the word used, approval of a development or site plan. You don't have one because -- the reason you don't have one is quite simple. It wasn't required. And so therefore relying on that definition, our position, is as a matter of law erroneous. So there's also a catchall phrase in that definition. "Said development shall also include activities defined as 'development' within 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 Section 24-17 of the ordinance code." And I presented that to Your Honor as well to see if maybe we're development as defined in the Land Development Code under 24-17, and the plain language of the statute reveals that clearly replacing exterior roof shingles and windows and interior renovation work does not constitute development as that term is defined in the City's Land Development Code. Number one, under 24-17(a ), Counsel says that it meets that definition. That definition provides that development means carrying out of any building or mining operation or the making of any material change in the use or appearance of any structure or land and the dividing of land into three or more parcels. The operative word in that sentence is the conjunction "and." So what does "and" mean? Counsel suggests that -- supposedly that it's superfluous. Well, under Section 24-16 of the City's Land Development Code, we have some guidance. It tells you how to construct language in the code when these types of conjunctions are used. And what 24-16 says, Construction of language. The following rules of construction shall apply to the text of this 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 chapter." Where regulation involves two or more items, conditions, provisions, or events connected by the conjunction 'and,' the conjunction shall be interpreted as follows: 'And' indicates that all connected items, conditions, provisions, or e vents shall apply." Nothing ambiguous there. So the only way that sub (a ) applies is if there was building operation or mining operation, material change in the use or appearance of the structure or land, and subdividing the land into three or more parcels. Clearly that did not happen. Sub (a ) is irrelevant for this discussion. So let's go to sub (b ). Sub (b ) provides examples of activities that shall be taken for purposes of this chapter to involve development. It sets forth additional examples. The first one, b )(1 ), "A reconstruction, alteration of the size or material change in the external appearance of a structure on land." The building footprint has not changed, never changed, as the City testified. The external appearance of the structure has not changed. You don't have any evidence whatsoever that the external appearance of the structure changed based 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 upon the replacement of the roof shingles and the windows. For all we know, they could have been identical to those that were there before and probably were. But in terms of the appearance, the only way that the City can testify or present this, Your Honor, with competent evidence that there was a material change in the external appearance of the structure, is if they have a before-and-after pic or some other type of documentary evidence. The testimony is that they do not have that to provide you with today. And you go down to subsection (c ), which provides examples of operations or uses that shall not be taken to involve development as defined in this section, and the one that I think is applicable here is subsection (c ), then sub (3 ), which states as follows: "Work for maintenance, renewal, improvement, or alteration of any structure i f the work affects only the interior or color of the structure or decoration of the exterior of the structure." So interior renovation work, which is included in one of the building permits, is clearly defined as something that does not constitute development. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 And even if the other ones apply, the 100-and-what-odd-thousand dollars involves interior renovation work, which is not development. But again, to summarize, our position is no permit for removal of the trees was required because no development occurred, particularly as that term "development" is defined in 23-8 of the City's ordinance code and as defined in 24-17 sub (b ) -- sub (a ) and (b ) of 24-17 of the City's Land Development Code. And no evidence has been presented to you to draw any such conclusion that a development permit was required. So that's issue number one. Issue number two, if Your Honor a grees with our position that no development occurred and no development permit was required, the only issue that remains is whether the mitigation is required -- or excuse me -- a building permit is required for removal of the hickory tree. That was also removed on the property. That's where the declaration of our registered landscape architect comes into play, and I would direct Your Honor back to that. And I do have -- I don't know if you have a copy of that in front of you. I have extra ones if 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 you want it. I don't have one handy . THE MAGISTRATE: You're talking about Mr. Miller's letter? MR. SANDERS: I 'm sorry? THE MAGISTRATE: Are you speaking of Mr. Miller's letter? MR. SANDERS: Yes, ma'am. Do you have that document? THE MAGISTRATE: It may be in my minutes from the last -- I 'd have to search for it. MR. SANDERS: I 've got an extra copy. One second, so you don't have to dig through. Well -- THE MAGISTRATE: I have it. It's No. 7 from the last one. MR. SANDERS: Thank you. THE MAGISTRATE: Verified Written Declaration of Michael Miller, R L A ? MR. SANDERS: Yes, ma'am. So as we've discussed about before, Chapter 163.045 of the Florida Statutes, there's a preemption statute that was a dopted in 2019 by the Florida legislature. There's nothing to indicate that any of the language here is ambiguous, and when you have an unambiguous statute, you give it its plain meaning. If for some reason an argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 could be made that it was ambiguous, which we submit it is not, then general rules of statutory construction of course are that it's construed against the drafter, not against the homeowner. So, again, what does that require? The preemption language, which says, "A local government may not require notice, application, approval, permit, fee, or mitigation for removal of trees on residential property if the property owner obtains documentation from a Florida licensed landscape architect that the tree presents a danger to persons or property." So apparently the City takes issue with the documentation that was provided, and as we stated at the last hearing, quite frankly, the way that the statute is worded by the legislature, that's irrelevant. Documentation has to be presented. It doesn't identify like what kind of documentation. What we have here is a declaration, which was a declaration pursuant to Section 19.525 of the Florida Statutes, which is the equivalent of an affidavit. So, according to the City, an affidavit from a registered landscape architect in the state of Florida with impeccable credentials, including 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 former president of Florida chapter of the association, the Society of Landscape Architects, is not good enough. His verified opinion is not good enough for the City and therefore should be rejected because they don't believe that that constitutes sufficient documentation. Number one, the statute does not allow the City to contest that. That's how it's worded. Number two, so long as statutory requirements are met, as they are, by referencing the terms of the declaration, the discussion is over. And in particular, I guess the only issue that remains is the other term that they -- the City focuses on is the verb "presents," that the tree presents a danger to persons or property. And the City's position is that that requires that the documentation be secured prior to the removal of the trees and cannot be done afterwards. Well, we have a heavily credentialed registered landscape architect from the state of Florida with E T M who respectfully disa grees. This is not just a letter. This is not a document. This is signed under oath. What he did or did not review is, quite frankly, irrelevant for purposes of this proceeding because he has testified that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 the declarations in this declaration, his statements in t his declaration, are based on his personal knowledge. Paragraph two, "The facts set forth herein are based on my personal knowledge regarding the removal of certain trees from the residential property of Thomas and Kathleen Bourdon located at 3 42 19th Street in Atlantic Beach." So by definition, "personal knowledge" requires you to look at the subject matter of the declaration, which in fact he has done. And if one simply referenced the exhibits that he attached to the declaration, you can see that clearly he spent quite a bit of time examining the circumstances regarding the removal of the trees and which ones did or did not present a danger to persons or property at the time of their removal. The last thing that I would mention on this as it pertains to the term "presents," this has been an ongoing problem. The City's position just seems to change every couple months. When we initially presented the City with a draft declaration at the time that this declaration was being prepared, reviewed, had not yet been verified, the City sent us, which is in your packet -- it's been in your 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 39 packet for a while. It's a memo dated September 14th from Ms. I rizarry and Ms. Askew, which is a response to the correspondence and materials we sent to the City on September 1 . September 1 was an email correspondence, a courtesy one that I had provided to the City in advance of having the hearing to say, "Look, here is what we have so far. We haven't had it sufficiently -- we had not had an opportunity to finalize and sign off on it, so it's not ready to present. But as a matter of courtesy, we're giving you a draft," which we did. What does this memo say? Unlike what's being told or the argument that's being made to you today, let me read the arguments that were being made to us on September 1 st. The September materials do not constitute documentation from a licensed Florida landscape architect. No license number is included." It's got a license number in here. Paragraph number one, R L A License No. L A 666826. Check. They asked us to provide it; we got it. Also, "The referenced statute plainly requires that the property owner only qualifies for preemption if the owner obtains documentation that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 a tree," quote/unquote, "presents a danger to persons or property." In other words, the question is whether at the time the tree was still standing was the tree a danger to person or property. "No statement that each of the removed trees constituted a danger to person or property at the time of removal from a landscape architect is included ." I would like to direct your attention again to the declaration from our registered landscape architect. Paragraph 10, "In my professional opinion, as a Florida licensed landscape architect, no permit application was required to remove the hickory tree from the Bourdon residence, as prior to its removal, the tree presented a danger to his property," et cetera, et cetera. We literally have the exact language that on September 1 the City said would qualify for preemption under the statute. Today I guess it doesn't , but a couple of months ago, it did. Similarly, in paragraph 11, "Of the remaining 19 trees that were removed from the Bourdon residence, 14 of them prior to their removal presented a danger to persons and/or property located on both the Bourdon residence and the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 adjoining neighbor on the eastern side of the Bourdon residence." We literally have the language that the statute requires. We have additional language that the City requested and said the preemption would apply if we had a verified declaration from a registered landscape architect that the trees presented a danger to persons or property at the time of their removal. We've got that. We've had it. And under this -- again, even notwithstanding the legal arguments on the definition or the meaning of the term "development" under the code, at a minimum, pursuant to this declaration -- excuse me -- the 15 of the 20 trees removed presented a danger to property -- presented a danger to persons or property at the time of their removal, which means that 5 of them, if it constituted development, if the shingles and the new windows constituted development, then you have 5 trees, not 20 trees, that would have required a permit to be removed, and that would be the basis of any mitigation plan. And with that, Your Honor, I will wrap up and stop talking. I know it's a lot and I 've just 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 tried to synthesize it. But, again, the argument is there was no development activity as defined by the code; therefore no permit was required. Even if there was development activity required by the code, we've got the requisite documentation, as per the Florida legislature, that declares that 15 of the 20 trees are exemp t from any of the local tree removal regulations. Thank you again for your time and consideration. THE MAGISTRATE: Thank you. Anything else from the City? MR. FLOWERS: I have a few brief comments. Number one, the City has never contended that the interior work was covered under this or triggered the requirement for a development permit. We've always focused on the exterior work, the replacement of the windows, the replacement of the roof, and again that work meets the dollar threshold. And again I will talk a little bit about the development issue again. I would suggest under this 24-17(a ) it doesn't make sense to read the and" part to connect to the other parts. But irrespective of that, in (b )1 , 24-17(b )(1 ), 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 Mr. Sanders focused on the material change in external appearance, but simply a reconstruction is a development. If you read the first part of t hat sentence, "A reconstruction," comma, "alteration of the size or material. . .s tructure on land." I would suggest to you that, you know, under any one of these definitions of "development," it is development. And at minimum, even if you accept the arguments on the exclusion, statutory exclusion, the five trees that his landscape architect acknowledges were not a danger still trigger the need for a permit. Mr. Sanders also said -- and I 'm not sure exactly what he said about the definition of development permit" in the City code. He said, well, that's 163. For 163 purposes, you know, maybe, or -- the code clearly says that a development permit is anything that requires a -- a development permit is a building permit, something that requires a building permit, and clearly this required a building permit. That's in the code. And lastly, again, with regard to the statement from Mr. Miller, Mr. Sanders has suggested the City's position has changed. It has not. If you read the entirety of the email 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 exchange, he called out a part of it. There were a lot of reasons why the initial submittal was insufficient in the view of the City. We continue to believe that the submittal as it exists now is also not sufficient. You know, simply to say "My opinion is X ," you know, without anything to support that opinion or to document it, if you will, it doesn't meet the requirements of the statute. Perhaps a statement could have been crafted that would have had enough information in it to enable that to happen, but that's not the case with what you have before you, in my judgment. So I would again urge you to determine that development occurred with the replacement of the roof and the replacement of the windows, that exterior work. I would urge you also to find that documentation has not been provided to demonstrate that the removal of -- or the trees that were removed, before they were removed -- again, the present-tense word "presents" a danger to persons or property has not been documented, and therefore the statutory exemption doesn't apply in this case. THE MAGISTRATE: Thank you. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 Okay. What I would like to do is, with the City's approval -- these are the minutes from the last meetings and all of the exhibits, which have been referenced here quite a bit. I would like to take these with me. I 'm going to review this and issue an order after under advisement. But I would like to take these with me because there are references here that I would like to reference in the order, and I don't have these at the office, so if that's okay, and I will bring them back next week for everybody. MR. FLOWERS: Can I say one thing? THE MAGISTRATE: Yes. MR. FLOWERS: The City has prepared a proposed order for your consideration. We recognize you will enter your own order. THE MAGISTRATE: I would be glad to entertain a proposed order from both, from the City and Mr. Sanders. If you want to, that's fine. It's not required. But I just want to make sure that the City knows I 'm going to take these with me. MR. SANDERS: We will be happy to send a proposed order. Is there a timeframe within which you would like -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 THE MAGISTRATE: I would like to get this out by next week. I mean, this is Thursday. So, I mean, this has been sitting around for a while. MR. SANDERS: So you want it for tomorrow? THE MAGISTRATE: No. I mean, if you could get it to me next week, that's fine. MR. SANDERS: Absolutely. Sure. THE MAGISTRATE: And I will work on it next week and hopefully get out an order by the end of next week. Is that all right? MR. SANDERS: Of course. THE MAGISTRATE: If it's all right with the City, you can send it directly to my office. You don't have to go through the City to have me come pick it up. Okay. Do we have any other business, Ms. I rizarry? MS. IRIZARRY: No. THE MAGISTRATE: Then with that, I will get an order out. I will review whatever C ounsels wish to prepare as far as proposed orders. I appreciate that. And hopefully by the end of next week I will have something for you. Okay? Then we will adjourn the meeting. 47 CERTIFICATE OF REPORTER STATE OF FLORIDA ) COUNTY OF DUVAL ) I , Amy Marie Yarbrough, Florida Professional Reporter, do hereby certify that I was authorized to and did transcribe the foregoing recording, which is 59 minutes and 31 seconds in length; and that the transcript of the recording is a true and correct record. Dated this 26th day of August, 2022. Amy Marie Yarbrough, FPR-C Stenographic Reporter IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FL CASE NO.: LT CASE NO: DIVISION: 2022-AP-000003 21-087 AP-A THOMAS BOURDON, Appellant, vs. CITY OF ATLANTIC BEACH, a municipal corporation, Appellee. NOTICE OF FILING HEARING TRANSCRIPT OF 02/16/2022 CODE ENFORCEMENT PROCEEDINGS Appellant, Thomas Bourdon, by and through the undersigned, hereby notices filing of the attached hearing transcript for the City of Atlantic Beach Code Enforcement Proceedings which took place on February 16, 2022. Respectfully submitted on this 7th day of October, 2022. Signature Block and Certificate of Service on following page] Filing # 158820703 E-Filed 10/07/2022 04:20:10 PM 2 KJS LAW, P.A. By: /s/ Karl J. Sanders KARL J. SANDERS, ESQ. Florida Bar No. 28452 1102 A1A N., Suite 203 Ponte Vedra Beach, FL 32082 Telephone: 904-868-7929 Email: kjsanders@kjslawpa.com Attorney for Appellant CERTIFICATE OF SERVICE I certify that, in compliance with Fla. R. Jud. Admin. 2.516, the foregoing document has been furnished via e-mail to the counsel of record identified as Electronic Service Recipients upon filing with the Florida Courts E-Filing Portal on this 7th day of October, 2022. KJS LAW, P.A. By: /s/ Karl J. Sanders Karl J. Sanders, Esq. 1 CITY OF ATLANTIC BEACH CODE ENFORCEMENT SPECIAL MAGISTRATE MEETING Case No.: 21-087 RESPONDENT: THOMAS BOURDON Re: 342 19th Street Atlantic Beach, Florida 32233 TRANSCRIPT OF PROCEEDINGS DATE: Wednesday, February 16, 2022 TIME: 1 :03 p .m . to 2 :00 p .m . BEFORE:Magistrate Suzanne W . Green LOCATION: 800 Seminole Road Atlantic Beach, Florida 32233 Stenographically reported by: Amy Marie Yarbrough, FPR-C North Florida Reporting, Inc. MadamCourtReporterJax@ comcast.net 2 APPEARANCES of COUNSEL On behalf of City of Atlantic Beach: BRENNA M . DURDEN, Esquire Lewis, Longman & Walker, P .A . 245 Riverside Avenue Suite 510 Jacksonville, Florida 32202 904.353.6410 bdurden@ llw-law.com On behalf of Respondent: KARL J . SANDERS, Esquire KJS Law, PA 1102 A 1 A North Suite 203 Ponte Vedra Beach, Florida 32082 904.868.7929 kjsanders@ kjslawpa.com Also Present: Angela Irizarry, Code Enforcement Officer 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 P R O C E E D I N G S Meeting called to order) Pledge of Allegiance recited) THE MAGISTRATE: Okay. We're here today on a motion for rehearing of a January 6 th hearing that we had with Mr. Bourdon. And procedurally, from what I understand, this is a motion for rehearing where we decide whether we will have a rehearing, which would be on the March 3 rd meeting date. MS. DURDEN: I apologize. Could you repeat that? THE MAGISTRATE: My understanding is this is a motion for rehearing in which we decide whether there will be a rehearing or not, and if there is, it would be held on the next scheduled code enforcement board. MS. DURDEN: Definitely today is, yes, just on the motion. THE MAGISTRATE: Correct. MS. DURDEN: And then it would be up to you, I think, to -- THE MAGISTRATE: Right. If there is a rehearing, my understanding is it would be scheduled on the next available hearing date, but 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 today is purely to determine whether there will be a rehearing or not. Just want to make sure we're all on the same page, as I read in the rules. MR. SANDERS: Right. Yes, ma'am. That's my understanding as well. And I 'm glad to hear you say that, because I came prepared for both. You never know. You never know. Like in court sometimes you get a request for rehearing and they literally argue the merits. THE MAGISTRATE: Exactly. But the way I read our code, it says -- MR. SANDERS: I a gree with that reading. This is simply to -- THE MAGISTRATE: Decide whether we're having another hearing. MR. SANDERS: For us to have an opportunity to present to you why it is that we believe that a rehearing would be warranted and beneficial in this case. THE MAGISTRATE: Correct. That's my understanding too. I just want to make sure we're all going on the same purpose. Okay. So, Mr. Sanders, feel free to proceed as to your motion for a rehearing. MR. SANDERS: Yes, ma'am. Thank you. And 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 thank you again for setting this meeting of this hearing on the motion to have a rehearing on such short notice. I do appreciate that, because otherwise the way the code is drafted and the way the schedule works for the special magistrate, you only meet once a quarter, and the motion for rehearing doesn't hold the time under the ordinance code, so we would not have had an opportunity to come before next time because the appeal period would run. THE MAGISTRATE: You can thank a judge in St. Johns County for changing my hearing day. MR. SANDERS: So as Your Honor alluded to, the Ordinance Code of the City of Atlantic Beach, per Section 2 -148, provides a mechanism for submitting a request for a rehearing in code enforcement cases. And the criteria is twofold: One, there exists new and material evidence which, if introduced at the hearing, would have allegedly changed the special magistrate's decision; and, secondly, that given this evidence, the order issued is contrary to the law and the evidence previously presented for the special magistrate's consideration in resolving the issues in the evidentiary proceeding. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 And our request, written request that we filed with the City, presumably Your Honor has a copy of; correct? THE MAGISTRATE: I do, yes. MR. SANDERS: We cite two grounds. And before I get into it, I just kind of want to give a quick summary of why it is that these are issues that were not introduced at the last hearing. MS. DURDEN: Oh -- MR. SANDERS: I 'm sorry? THE MAGISTRATE: That's fine. I will hear it. I understand that's one of the criteria, there's new and material evidence, and I do need to hear if there is new and material evidence, what the -- MR. SANDERS: Right. Right. So our position was, as you will recall, the -- MS. DURDEN: Excuse me. The City clerk is telling me that there's some reason that the live feed is not working. Is there a reason for that? THE CLERK: We don't know. We can get somebody in, but I didn't know if we needed to pause for a moment for that. MR. SANDERS: Is there audio? THE CLERK: They're not hearing anyone. They're only seeing. And I 'm not sure how many 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 people are needing this. MS. DURDEN: Have you contacted the I T people? THE CLERK: They are. But I 'm in here and they're trying to handle it with him. But we didn't know whether that's going to disturb you, if you want us to stop the meeting until we get this resolved. THE MAGISTRATE: Is there some requirement that it has to be live audio and visual feed? MS. DURDEN: Usually all the -- THE MAGISTRATE: I know they are, but is there a provision that says it has to be? THE CLERK: I don't believe so. THE MAGISTRATE: In all my -- I 'm chairman of the airport authority down in St. Augustine. We do that same thing, but it's not a requirement. But I don't know if the Code -- MS. DURDEN: It's not a requirement, but -- I know that it's the City's practice. THE MAGISTRATE: I understand. THE CLERK: It's totally up to you. THE MAGISTRATE: They just can't hear us; right? They can visually? THE CLERK: They cannot hear us, correct. MS. DURDEN: Are they in the process of fixing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 it? THE CLERK: He's coming now. MR. SANDERS: If it's any consolation, we've got a court reporter. If we didn't have one, I would be like -- Indistinct chatter) THE MAGISTRATE: I would a gree with Mr. Sanders and with the City. I mean, if we have a court reporter -- MS. DURDEN: But that would require somebody to transcribe it rather than listen to it. THE MAGISTRATE: My guess is someone is going to transcribe this. We will give him a minute. Pause in proceedings for technical issues 1 :10 p .m . to 1 :16 p .m .) THE MAGISTRATE: We have our court reporter, so we will go back on the record. MR. SANDERS: So, again, just to recap and kind of set the stage on our arguments here, it's twofold, as you will recall. We have said from day one the issue here is whether or not Mr. Bourdon -- ZOOM NOTIFICATION: "Recording in progress." MR. SANDERS: The issue here is whether or not 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Mr. Bourdon was required to secure a or apply for a tree permit to remove the trees on his residential property. Our position is twofold on the legal arguments : Number one, that under the code, one has to do with the definition of "development," and the other is a preemption argument. And I do just want to -- MS. DURDEN: Magistrate Green, we're here on a motion for rehearing. THE MAGISTRATE: Correct. MS. DURDEN: And there shouldn't be any submittal of any testimony or documentation. We're strictly here not to hear about what the case was at the initial -- at the hearing. We're here to talk about and discuss the motion for rehearing and whether or not the Respondent has met his burden for a rehearing. THE MAGISTRATE: And I a gree with the City on that, but as Mr. Sanders is saying, he has to show that there's new and material evidence that was not available if introduced at the hearing. That's one prong, and the other one, if it's contrary to law. So those are the two things I 'm -- my burden is to hear that. MS. DURDEN: Right. And we should not be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 talking about what the basis was for their declaration at the time, why they don't think that the code would require a permit by Mr. Bourdon. So, you know, I object to the discussion that Mr. Sanders was just referring to in regards to the basis for why they think that no permit was required. THE MAGISTRATE: I 'm going to overrule the objection and give a little latitude here, but I understand. That's why I wanted to start out with what our parameters were here, and that's new evidence, not discovered, and if it's contrary to law. That's what our basis is here. MR. SANDERS: Thank you, Your Honor. And I understand. And it is not my intent to introduce new evidence here at all. In fact, as you indicated, one of our burdens with respect to this request for rehearing is establishing that this new material evidence could not have with reasonable diligence been produced in the prior hearings. And it's our position these new documents that we have, even though they are, as you will note, attached to the request, they are dated prior to the hearing. It's important to understand the context here of the issues that were previously presented to you as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 to why it is those would not have been discovered by reasonable diligence and produced at those hearings. That's all. THE MAGISTRATE: And I 've read your exhibits. MR. SANDERS: And just to give you context, these are excerpts from the code, the definitions. And I 'm not going to go through everything again, but these were the City's on their PowerPoint at the last hearing. It helps me to go through this and may help you guys. It may not, but -- THE MAGISTRATE: Actually, I 'm going through the four corners of what you provided, which was fine. MR. SANDERS: So to recap again, the issues that were before you at the two evidentiary hearings, one was in November and one was in January -- MS. DURDEN: Magistrate, I 'm going to object again. That's not why we're here. THE MAGISTRATE: That's fine. We will just kind of narrow it down, Mr. Sanders, to those two criteria. MR. SANDERS: That is correct. So the two documents that we have today that are attached to the motion, one has to do with a code provision, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 the City's ordinance code, regarding when a site plan is required, and the second one has to do with the preemption argument that we had. And the reason that these issues or these documents were not provided to you at the January hearing or the November hearing is because there was no need to, and that's why it's important to understand the context. At the November evidentiary hearing, which was recessed to allow, as you will recall, to give the -- the City requested a deferral in order to have the registered landscape architect's report reviewed by -- further reviewed by them and by their counsel. And we obviously had no objection to that and still don't . When we showed up at the November hearing -- excuse me -- at the January hearing anticipating that that's what the issue was, the arguments were going to be directed towards the verified declaration, instead a new witness was called, new testimony was proffered, all going to the issue of the definition of the term "development." And we did have an opportunity to cross on the fly on that issue, and one of the questions on cross that was asked of the City's witness by me 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 was -- pertains to the Section -- excuse me -- 23-8 of the tree protection ordinance, which that's the definitions, and includes definition of development activity." And that definition, as my question was directed to the City's witness, provides that it's any alteration of the natural environment, which requires approval of a development -- the development of a site plan and issuance of a development permit. So the testimony that was procured by the City's attorneys at the January hearing was not an issue that ever a rose at the November hearing. And my only question on that particular issue had to do with the site plan issue, which I thought and still do believe is dispositive, because I know in fact the C ity does not require a site plan for a building permit to replace or remove shingles or interior demo permit. And to the City's witness's credit, she acknowledged that, "No, we don't always require site plans for all building permits or development." And after that hearing, having an opportunity to go back and look at that issue further, i .e . with respect to site plan and why it is the City's position that they don't have t o require a site 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 plan for a building permit, I went back through the code and found a separate provision of the code, which is attached to the request, which is Section 24-69 that concerns development and review and issuance of development permits, similar to this case. And as this is set forth in our written request, subsection A states that "The purpose of the section is to establish procedures for submittal, review, and approval of construction plans and the issuance of development plans." Subsection C , the title of that subsection: Site development plan required." "Site development plan shall be required for all development and redevelopment other than interior renovations and fences." Now, had I known that the City was going to proffer new testimony from a new witness, I would have had an opportunity to research other provisions of the code to nail down that issue. That is why it was not presented to you at the January hearing on that particular issue that was before your consideration, and that issue being the definition of "development" and whether or not a permit was required in the first instance. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 That's issue number one. We have a second issue, which goes to preemption. And so again, I -- let me go back to that. That explains why that code provision was not discovered and produced to you at the January hearing, because we had no idea it would be at issue, number one. Number two, given this evidence, the issue is then whether or not the findings in Your Honor's order are contrary to the law and evidence previously presented for consideration. We would respectfully submit that it is because of the City's position. The City's testimony is that a site plan is not always required for development activity. The express language of the code states otherwise, that it again is required; "shall be required for all development and development activity." That's issue number one, why we request an opportunity to have a rehearing on that issue. Issue number two again goes to the preemption argument. Again, as you will recall, Section 163.045, Florida Statutes, preempts the ability of local governments to regulate trees under certain conditions with the documentation. And the City's arguments at the November hearing and prior to that was that the -- excuse me -- that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 the -- that -- excuse me. I 've got it right here. At the November hearing, the City's arguments with respect to the verified declaration from a registered landscape architect or that the verified declaration was deficient because it does not meet the intent of the statute and the City's position was that -- and has always been, as I understand it -- that with respect to the preemption effect of the statute and the documentation required, that the documentation has to be secured prior to the removal of trees in order for it to be competent and substantial evidence. And, again, I 'm paraphrasing. I 'm not trying to restate the City's argument. If that's not the case, then Ms. Durden can correct me. But, essentially, as I understand it, the City's argument has always been when we started t his back at the first hearing in July that the statute does not apply if you didn't secure the documentation prior to the removal of trees. We respectfully disa gree with that for the reasons we've previously argued. And Your Honor in your order on this issue determined that the -- sided with the City's argument and declared that the term "presents" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 required the documentation to be secured prior to the tree's removal. By chance, I happened to discover after the hearing that the -- as is set forth in our request and attached to that, the City Commission, the City of Atlantic Beach, has in fact taken a legal -- excuse me -- not a legal position. They have taken an official position on the preemptive effect of 163.045, and I have attached to the request Resolution 21-08. After finding this, I have actually found more, but that's not for today, because, again, this is not an evidentiary hearing. But as the title of that attached resolution to the request states, it's a resolution of the City Commission, City of Atlantic Beach supporting, and it references a couple of bills at the state legislature which would repeal -- repeal -- Florida Statute 163.045 to enable local governments to regulate matters relating to trees located on residential properties. And as you read the resolution and go through the "whereas" clauses and then the findings, it's very clear that according to this resolution, the City's position prior to the hearing before special 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 magistrate in January was that, quote, state preemp tion -- that this statute preemp t s local ordinances related to trees located on residential properties. That is expressly and directly contrary to the City's arguments at the January hearing, I respectfully submit, and which is why I would request an opportunity for this -- for those two issue to be reheard. This one in particular is to have an opportunity to have an evidentiary hearing on that issue and provide the City with an opportunity to explain why it is -- if that's the case, why it is that they believe that the statute does not preempt local ordinances related to trees located on residential properties. Again, to wrap up, the two issues presented in the request for relief, one goes to the issue of -- both go to the issue of whether or not a permit was required in this case. One goes to the issue of the defined term "development" and new testimony that was proffered at the January hearing on that issue. And the other goes to the preemptive language of C hapter 163 and the City's arguments with respect to that presented at that hearing as opposed to the City Commission resolutions that we subsequently discovered. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 We thank you for the opportunity to present those two arguments with you today and happy to answer any questions if you have any. THE MAGISTRATE: Thank you. MS. DURDEN: Good afternoon, Magistrate Green. Thank you for scheduling the hearing so quickly. We appreciate it. The City opposes this request for rehearing. As was noted by Mr. Sanders, Section 2 -148(c ) of our code sets out four elements that must be shown by a party making the request in their written request. The first of those four is new and material evidence. The second, which evidence, if it had been introduced at the initial hearing, would have allegedly changed your decision. The third component is that that evidence could not with reasonable diligence have been discovered before and produced at the hearing. And the fourth is that given that evidence, there must be contained within the written request a description of how your order is contrary to the law and the evidence. Much of the language in this code provision, code section, is calling for new and material evidence that, which if it -- if it had been 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 introduced, would have changed your opinion and could have been discovered -- could not have been discovered with reasonable diligence, is taken from the Florida Rules of Civil Procedure regarding rehearing motions. It's well-established law in Florida that a party may not simply attempt to reargue his case via a motion for rehearing. In essence, that is precisely what the Respondent is doing here. The burden of proof is on the Respondent to demonstrate in the written request for rehearing that all four of these grounds for rehearing actually exist. Respectfully, Magistrate Green, the City does not believe any of the grounds for rehearing exist in this case, and I would like to go through those. First, there is nothing new or material here. Neither the code provision nor the resolution are new. The code has been in place for a long time and certainly long before the hearing in January. The resolution is dated February of 2021. Again, these are not new. Neither of these documents are new. What about material? Neither of them are material to the issues at hand. The resolution language encouraging the Florida legislature to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 a dopt bills last year that would have repealed 163.045 is not dispositive to y our decision. The statute is not p reemp tive under every circumstance. It's a conditional statute. In fact, under some circumstances, when the conditions of the statute do exist, most people would describe it as preemptive. So describing the statute as was done in the resolution does not e quate to an admission that in every single case the statute is preemptive of the City's tree code. The very concept that the language and the resolution e quates to a preemption in every case is, quite frankly, absurd. It ignores the plain language of the statute and it's certainly not material to the code enforcement action here. Going to the code provision, is it material? No, it's not material. The Respondent's evidence is not material. As Mr. Sanders did throughout the hearing, he is again isolating one part of the definition of "development" from all the other parts contained in that definition. Simply because no site plan was submitted by Mr. Bourdon or his contractor does not magically mean that the work conducted on the property no longer constitutes development. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 As you may recall, the definition of development" in the tree code contains several subparts, only one of which refers to a site plan. Two other s ubparts include, quote, "the removal of trees incidental to the development of land," close quote, and quote again, "activities defined as; development' in Section 24-17 of the land development regulations," close quote. Each of these, independent of the other subparts, constitutes activities defined as development. Thus the evidence -- that is the resolution in Section 24-69 on which the requests are based -- are neither new or material to the case. The second component that the Respondent must show is that these two documents -- the code provision and the resolution -- would have changed your decision if they had been introduced at the January 6 th hearing. First, in regard to the code provision, simply because Mr. Bourdon was essentially relieved of the requirement to submit a site plan, here apparently the City did not require his contractor to submit a site plan before -- MR. SANDERS: Just for the record, I need to state an objection as to Counsel's description of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 the prior testimony that was presented to the special magistrate. THE MAGISTRATE: The record will reflect what was presented in the hearing. MS. DURDEN: Here, apparently the City did not require his contractor to submit a site plan before it issued the building permits. However, even if no site plan was required by the City in this instance, that was not the basis on which your decision was made. In fact, the only time site plan is even referenced or in your -- or the word site plan" is even mentioned in your order is in paragraph 14. It states: "The Respondent also contends that because no site plan was required by the City in order to obtain the permits for roof replacement or for exterior windows, the work does n ot meet the definition of 'development' found in the tree code in Section 23-8 . On redirect, the director concluded not all development as defined requires the approval of site plan." That pronouncement in our order is accurate, even in light of Section 24-69; thus that code provision would not change your decision. In regards to the resolution, it's completely 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 immaterial to your decision and would not alter your decision. Regarding Section 163.0 45, your order analyzes whether the requirements set out in that statute were met under the facts of this particular case. The order never even discusses preemption. Moreover, if we're to believe the Respondent's suggestion that in every instance the City's tree code would be preempted regarding residential properties, the City would be forced to waive its residential tree permit requirements altogether. Here what the City did show was that the plain language of the statute had not been met. The language in the resolution does not and would not reverse the analysis that you conducted in the order concluding that the requirements of the statute had not been met. In fact, there probably are times when the statute would preempt the City's tree code provisions when the conditions in the statute are met. The City did not argue that the statute never preempts the City's tree code. Sometimes it does. So the language in the resolution changes nothing about the City's position and certainly would not lead you to change your decision. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 The third component that must be shown in a request for a rehearing is that the evidence -- that is the resolution and the 24-69 -- could not with reasonable diligence have been discovered before and produced at the initial hearing. The written request for rehearing that was filed by the Respondent never even attempts to address this component. Presumably, I would suggest to you that's because it's clear both documents could have been discovered beforehand and introduced at the January 6 th hearing. In fact, it was the Respondent's own position during the hearing itself that all development required a site plan. Certainly he could have pointed to the code provision at the time to bolster his own position. And as for the resolution, these are public records. The resolution is a public record. They're typically posted on the City's website. It was a dopted over a year a go. It is the requester's burden here to show what diligence was used and why it was not reasonable to discover these two documents. None of this was included in the Respondent's request for rehearing, and it is clear that both documents could have been produced at the hearing. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Number four, finally, the request fails to include a des cription of how the order is contrary to the law in evidence. In fact, there's no attempt whatsoever to describe how or where the order is contrary. That burden is on the Respondent. It was required to be included in the request for rehearing and the Respondent has fully failed to meet that burden. I would like to shift to the discussion that I objected to, for the record, that Mr. Sanders pointed to earlier. MR. SANDERS: Again, just for the record, I 'm going to state an objection. If Counsel wants to engage in discussion about an issue or statement that she previously objected to, I don't understand the relevance. THE MAGISTRATE: I don't know either because I haven't heard her comment, but I will note it. Thank you. MS. DURDEN: His position is that he didn't know it was going to arise. As I 've said earlier in regards to the site plan issue, it was his issue. He brought it up. He said during the hearing that the site -- because there was no site plan, it didn't constitute 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 development. That's the very issue that he's now trying to say he did not know was going to a rise. I would suggest to the Court that that's not a reasonable position. In regards to the preemption issue, as far back as September the C ity has questioned the validity of the declaration that Mr. Sanders produced. The very first one, you may recall, in September, had no name to it. It didn't describe who the person was. There was just a chart basically. THE MAGISTRATE: Pursuant to 163.045? MS. DURDEN: Right. Yeah. This is in regards to the preemption and Mr. Miller's chart. And then he produced the declaration, and as soon as we received that declaration, we responded in email to Mr. Sanders. And I believe it's part of the record that we had questions in regards to specific paragraphs of that and questioned the validity of how and the sufficiency of that declaration -- of Mr. Miller's declaration. So to say now "We did not know that these issues were going to arise," is again, in the City's opinion, unreasonable. For all of these reasons, we don't believe any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 of the grounds that are set out in Section 2 -148(c ) have been demonstrated. Not any of them have been demonstrated to exist. As a result, we therefore respectfully request that you deny the request for rehearing. Thank you very much. THE MAGISTRATE: Rebuttal, Mr. Sanders? MR. SANDERS: Thank you. First off, Counsel's first statement as to this request for rehearing language in the City's code, that it is tailored after the rehearing rules in the Rules of Civil Procedure is absolutely not. What she is confusing the rehearing rules with those in an appellate proceeding. Those are the Florida appellate rules. This is not an appellate proceeding. This is a regular action. So under the Civil Rules of Procedure, you can request a rehearing literally on anything. It's entirely up to the discretion of the judge, and there are no criteria to meet, as Your Honor knows. The language actually more closely, not identically, resembles that which would be a motion to set aside a final order, one that has already been entered. At least that's how I read it. And of course in that type of case, it's a similar issue. Why didn't you produce this before? And if 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 you produce it now, does it have the potential to change the final decision previously entered? And that's essentially what we're talking about here. It's twofold. I will go through a few of Counsel's comments and make some statements on the prior hearings that s he previously objected to because s he wants to talk about them. So number one, new and material evidence is one of the criteria. As I stated earlier, the -- without question, it's material and the issue is whether it's new. Counsel's position, as she stated, is that these documents, as I indicated earlier, the documents are dated prior to the date of the January hearing. It's a resolution a dopted in '21. It's a provision in the ordinance code that clearly was in place before the January hearing. The issue is not whether under this language the standard is that there exists new and material documents. It's new and material evidence; big difference. So did these documents suddenly a rise? No. They've been existence. The issue is whether or not it's new evidence that had been presented for Your Honor's consideration and had the parties had an opportunity to examine the City about, would 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 that provide the Respondent here an opportunity to present arguments to you that may in fact change your final order. Because we believe that there is new and material evidence, which if presented in an evidentiary proceeding where we had an opportunity to e laborate on those, which would produce additional documents -- which, by the way, I know exist and I understand completely why Counsel does not want to have this hearing. They're not attached to this motion because I didn't know they were in existence at the time the motion was filed. But I 've since discovered a bunch of stuff that I think would be very material to Your Honor's consideration. MS. DURDEN: Objection. THE MAGISTRATE: Noted. MR. SANDERS: Secondly, the issue is whether or not this new and material evidence could have been discovered with reasonable diligence prior to the hearing. And again, this is precisely why I wanted to go back to the November hearing and tee up what issues were before you then and what the purpose of the January hearing is. Reasonable diligence is not due diligence. It's reasonable diligence. So the question is did 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 the -- did Respondent, after the November hearing, did -- was there any reasonable reason to believe that the issue of site plan, whether or not a site plan was required for the development, would a rise in this hearing. We respectfully submit that no, it's not reasonable to assume that because of what happened at that hearing. What happened at that hearing is you had testimony from the City's own witness that stated in une quivocal terms that the, quote/unquote, 10,000 permit trigger was implicated anytime the valuation noted on a building permit application was in excess of $10,000, irrespective of what the subject of that building permit was, and that goes precisely to my point. So they acknowledged under oath that when they enforced the tree statute, the tree ordinance, what they're looking at is a number on the building permit and with no reference or consideration whatsoever as to whether or not the activity described in that building permit constitutes development, and that's a critical fact and it's an admission. We had absolutely no reason to believe that the C ity would turn around in January and present a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 new witness to rebut their own witness at the prior hearing, which is exactly what happened. So as to the relevancy of whether or not a building permit was in fact development, that issue is closed. I 've got the transcript from that. There's no doubt that that issue was done. The only issue -- and we were quite surprised in January when we showed up and saw that the City wanted to present a new witness. Our understanding of that hearing in January is it was going to be limited to the legal issue, legal arguments as to the preemptive effect of the statute, and in particular, the registered landscape architect's declaration, which of course again was the subject of extensive testimony at the November hearing. And based upon the transcript that we have of that proceeding, the deferral request from the City was not to be able to go back and look at ways to like kind of finesse what we testified as to today as to what constitutes development. That was done. Their request for rehearing was for a de- -- not for rehearing. Their request to defer was in order to have the report, which was the verified declaration, reviewed. That's it. And so that's what we prepared for in January. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 So was it unreasonable for us to come to the deferred hearing on that preemption issue without having first researched and discovered additional ordinance code provisions and different sections of the code as to what constitutes a site plan? No, because that issue was done. The City's testimony was that's not how we interpret our code. We don't look at the nature of the activity of the building permit. We just look at the dollar number. And clearly that's not what the code requires and it does require an assessment of the development. Again, it's important to remember it's the City's burden to prove their case. It's not ours. They're the ones that sued us. So if the City is going to come on multiple hearings and assert that Mr. Bourdon violated the City's tree ordinance code, the city has the initial burden of proving that and that was our position in November. That burden on the issue of whether a development permit -- or excuse me -- the issue of whether or not a tree permit was required in the first instance, that issue was closed in November. MS. DURDEN: On behalf of the City, we are objecting on the record. We're so far outside the bounds. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 THE MAGISTRATE: We are. And I understand what Mr. Sanders is saying, because I 've done some research myself. MR. SANDERS: So again, that is why -- to recap on that issue, that is why I think that indeed it is new evidence and obviously material because it contradicts testimony presented at the prior hearing and it's new evidence. Not a new document, it's new evidence that we believe if we had an opportunity to discuss further would arguably provide an opportunity for a different final decision from a special magistrate; maybe not, but we think it would. As to Counsel's argument that the -- that we raised this issue of site plan, well, yeah, we were presented with a witness that we didn't know was going to testify on a subject that we didn't know they were going to testify to, so we did what we could in the moment. And again, that's why we would submit that it was not reasonably discovered prior or produced at that hearing. Lastly, as it pertains to that issue, Counsel refers to Your Honor's order, in paragraph 14, as to that issue on the site plan, where you state that -- and Counsel's position today is that this 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 new evidence that is one of the two bases for our request for a rehearing would not change Your Honor's statement -- or findings, excuse me -- in paragraph 14. Here is the finding. "On redirect, the director concluded that, quote, 'not all development as defined requires the approval of a site plan.'" How can a city ordinance code provision that states unambiguously the exact opposite be irrelevant or immaterial to the issue of whether or not a development permit is required? And to that provision in the order, we respectfully submit it is in fact directly relevant and very much material and would in fact change at least that portion of Your Honor's analysis in the order. Secondly -- or lastly, as it pertains to the preemption statute, the -- if -- okay. Again, new and material evidence. Is it a new document, a new resolution? No. We never said it was. Is it a material document? We think it is very much a material document and we would like an opportunity to have an evidentiary hearing on that so we can further e laborate and explain that and if necessary examine the City 's witnesses so they can explain as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 opposed to just the two lawyers getting up here and talking. I would very much like the opportunity to ask those questions, and I think that you would find that testimony to be quite relevant with respect to what the City is now saying their position as to the preemptive effect of that language. And I understand this is a generic reference in that resolution. Yes. By definition, that's what resolutions do, but that document triggered a further review, and it's documents that are public records that are relevant to that that would be -- in our opinion, that would be, A , directly contrary to the law and legal positions argued before Your Honor on January 6 th, and as a consequence, directly contrary to your findings as to the preemptive effect of Chapter 163.035. Again, the City's position apparently -- again, as I understand it, and I 'm paraphrasing again. As I 've understood it all along, is that in these proceedings has been that the statute requires that the documentation from a registered landscape architect be secured prior to the removal of the trees be presented to the City. That's their position. And this resolution that we've 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 attached to our request, which identifies that in fact the City has been discussing -- at a minimum discussing the preemptive effect of that statute, whether it's global or fact-dependent or whatnot, there have clearly been discussions on it, because there was resolution adopted at a public meeting. We would like an opportunity to present that evidence related to the resolution for Your Honor's consideration, because we think it goes directly to that second issue in our case as to the preemption. And with that being said, I will sit down. Again, we appreciate the opportunity to present our request to you verbally today. THE MAGISTRATE: Thank you. Thank you very much. I have reviewed all the pleadings. I actually went back and reviewed the resolution. I 'm very familiar with resolutions. I used to work in Washington, D .C ., and write these things myself before they become law. So that's kind of where they are. Bottom line is I 'm going to deny the motion for rehearing. I believe the order speaks to the site plan, speaks to the definition of development," speaks to the tree permit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 requirement. I think we hit all of the issues that you all brought up again today. But I think the order speaks for itself, so I 'm going to deny the motion for rehearing. And then I think your timeframe is still fine, Mr. Sanders. MR. SANDERS: Yes. MS. DURDEN: Thank you very much. THE MAGISTRATE: Thank you very much for your time to get in here quickly. We are adjourned. Thank you. Proceedings concluded 2 :00 p .m .) 39 CERTIFICATE OF REPORTER STATE OF FLORIDA ) COUNTY OF DUVAL ) I , Amy Marie Yarbrough, Florida Professional Reporter, do hereby certify that I was authorized to and did report the foregoing proceedings; and that the transcript is a true and accurate record. DATED this 26th day of August, 2022. Amy Marie Yarbrough, FPR-C Stenographic Reporter IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT STATE OF FLORIDA CASE NO. 5D23-____ L.T. Case No.: 2022-AP-3 THOMAS BOURDON, Petitioner, vs. CITY OF ATLANTIC BEACH, a municipal corporation Respondent. APPENDIX TO PETITION FOR WRIT OF CERTIORARI KJS LAW, PA KARL J. SANDERS, ESQ. Florida Bar No. 28452 1102 A1A North; Suite 201 Ponte Vedra Beach, Florida 32082 Telephone: 904-868-7929 E-Mail: kjsanders@kjslawpa.com Attorneys for Petitioners Filing # 179119372 E-Filed 08/07/2023 08:14:41 PM INDEX TO PETITIONERS’ APPENDIX Appx. A B C D E F Document Page Circuit Court Order (07/07/23) .................................................... 004 Special Magistrate Code Enforcement Order (01/27/22) ........... 005 City’s Tree Removal/Mitigation Calculations (08/26/20) ............. 010 Notice of Code Enforcement Violation (05/10/21) ..................... 013 City Memo – Statutory Preemption/Tree Removal (09/14/21) .... 015 Verified Declaration of Petitioner’s RLA (10/21/21) .................... 018 CERTIFICATE OF SERVICE I certify that, in compliance with Fla. R. App. P. 9.220 and Fla. R. Gen. Prac. & Jud. Admin. 2.516, Petitioners’ Appendix has been served via e-mail to the following counsel of record for Respondent, City of Atlantic Beach, upon electronic filing of same with the Clerk of Court via the Florida Courts E-Filing Portal on this 7th day of August, 2023: THOMAS A. VALDEZ, ESQ. Quintairos, Prieto, Wood & Boyer, P.A. 1410 North Westshore Blvd., Suite 200 Tampa, Florida 33607 Florida Bar No. 114952 Primary Email: Tvaldez@qpwblaw.com MEGAN G. COLTER, ESQ. Quintairos, Prieto, Wood & Boyer, P.A. 1410 North Westshore Blvd., Suite 200 Tampa, Florida 33607 Florida Bar No. 0097927 Primary Email: Maggie.Colter@qpwblaw.com KJS LAW, P.A. By: /s/ Karl J. Sanders Karl J. Sanders, Esq. IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT THOMAS BOURDON, Petitioner, v. CASE NO. 5D23-2519 LT CASE NO. 2022-AP-3 CITY OF ATLANTIC BEACH, FLORIDA, Respondent. DATE: October 10, 2023 BY ORDER OF THE COURT: ORDERED that “Petitioner’s Request for Oral Argument,” filed October 9, 2023, is denied. I hereby certify that the foregoing is a true copy of) the original Court order. cc: Karl J. Sanders Megan Gisclar Colter Thomas A. Valdez IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT Thomas Bourdon, Case No.: 5D2023-2519 L.T. No.: 2022-AP-3 Petitioner(s), v. City of Atlantic Beach, Florida, Respondent(s). Date: November 18, 2024 BY ORDER OF THE COURT: ORDERED that the Petition for Writ of Certiorari, filed August 7, 2024, and the Amended Petition for Writ of Certiorari, filed September 11, 2024, are denied on the merits. I hereby certify that the foregoing is a true copy of) the original Court order. aux 5 2 9 11/ 2. /0 , il „ •v c SANDRA B. WILLIAMS, CLERK eT Panel: Judges Edwards, Jay and Harris cc: Megan Gisclar Colter Hon. John I. Guy Hon. Maureen T. Horkan Hon. James E Kallaher Karl J. Sanders Thomas A. Valdez Irizarry,Angela From: Thomas Bourdon <tombourdon7@gmail.com> Sent: Friday, December 6, 2024 12:13 PM To:Irizarry,Angela Cc:Genest, Abrielle Subject: Re: TREE20-0034 Thanks Angela! I will review and get with Abrielle next week. My intention is 100%to move forward with the mitigation. Karl filed the motion and let me know after the fact. I had not heard from him to be able to let him know I was moving forward with the mitigation. I did get a hold of him the other day and asked for no more motions and that he reach out to the city attorney to let him know i am moving forward with the mitigation. Apologies for any confusion it created. Best, Tom On Thu, Dec 5, 2024 at 10:12 AM Irizarry,Angela <alrizarry@coab,us> wrote: Tom, Abrielle, cc'd on this email, is our Planner who is responsible for tree calculations. We met this morning to discuss your proposed plan. Below are the calculations and amount owed based on what you submitted. She used 11" cabbage palms as an example but you could choose another species of palm tree as long as you met the sizing. If you have additional questions regarding the trees, please reach out to Abrielle. She is going to be out of the office for the rest of this week but will be back on Monday. I was assuming by your email of Tuesday that it is your intention to keep moving forward with us to get this resolved but we received a new filing on your legal case yesterday. I have attached it here and wanted to make sure you hadn't changed your mind. From: Genest, Abrielle <agenest@coab.us> Sent:Thursday, December 5, 2024 10:00 AM To: Irizarry,Angela<alrizarry@coab.us> Subject: RE:TREE20-0034 1 Angela, The total mitigation owed is 226". At least 50% shall be planted (113"). The proposed plan looks good, as long as 56.5" (half of the required planting) are planted at 342 19th Street. This should be a mix of legacy species and palms. Example planting plan : @ 342 19th Street: 4-4" legacy species = 16" 6- 11" cabbage palms = 66" @1884 Sea Oats Drive: 4-4" legacy species = 24" (legacy species in excess of 24" receive double credit) 5- 11" cabbage plams = 55" 161" planted Remaining mitigation = 65" X$148.0 =$9,620.00 total to tree fund I have attached the list of approved species. Tree size requirements: New live oaks shall have a 4" caliper and be 12 feet tall at time of planting Other new species shall have a 2" caliper and be 10 feet tall at time of planting 2 New palms shall have 8 feet of clear trunk height at time of planting. I would be happy to meet with the property owner if he has any questions. Thanks, Abrielle Genest From:Thomas Bourdon <tombourdon7@gmail.com> Sent:Tuesday, December 3, 2024 11:58 AM To:Askew, Amanda <aaskew@coab.us>; Irizarry,Angela <alrizarry@coab.us> Subject:TREE20-0034 Hi Amanda and Angela, Hope you had a great Thanksgiving. Thanks again for taking the time to meet with me on this. Please see below plans for mitigation with an install date for mid January. 1. Paid 5k 2. Planting 11 palms and 8 legacy trees between 2 properties (342 19th and 1884 Sea Oats) Legacy 24 inch min will be met. Total inches with payment should get us close to 226. Couple of items I am looking for confirmation on. Tree's can be planted at new house - 1884 Sea Oats Drive which is less than a quarter mile away. Anything you need me to do to reinstate the permit? I will have surveys with planting locations in the next couple of weeks. Best, Tom 3 IN THE DISTRICT COURT OF APPEAL FIFTH DISTRICT STATE OF FLORIDA CASE NO. 5D23-2519 L.T. Case No.: 2022-AP-3 THOMAS BOURDON, Petitioner, vs. CITY OF ATLANTIC BEACH, a municipal corporation Respondent. PETITIONER’S MOTION FOR WRITTEN OPINION Pursuant to Fla. R. App. P. 9.330, Petitioner hereby files this Motion for Written Opinion with respect to this Court’s Order denying the above- styled petition for writ of certiorari. Fla. R. App. P. 9.330(a)(2)(D)(i) authorizes the filing of a motion for written opinion where a party believes that it would provide a legitimate basis for supreme court review, including where the Court’s decision may expressly and directly conflict with a decision of another district court of appeal . . . on the same question of law.” In the event that this Court denied the instant petition for writ of Filing # 212106391 E-Filed 12/03/2024 08:56:36 PM Page 2 of 3 certiorari because the panel concluded that Section 164.045, Fla. Stat. 2021), allowed the City of Atlantic Beach to demand a tree-removal permit and mitigation from a private-property owner who “obtains” documentation that the removed trees were dangerous to persons or property prior to or at the time of their removal, then Petitioner respectfully submits that this Court’s Order expressly and directly conflicts with the First DCA’s decision in Vickery v. City of Pensacola, 342 So. 3d 249 (Fla. 1st DCA 2022). WHEREFORE, Petitioner respectfully requests that this Court issue a written opinion to address the issues and asserted conflict set forth herein. Respectfully submitted and filed this 3rd day of December, 2024. KJS LAW, PA By: /s/ Karl J. Sanders KARL J. SANDERS, ESQ. Florida Bar No. 28452 1102 A1A North; Suite 201 Ponte Vedra Beach, FL 32082 Telephone: 904-868-7929 E-Mail: kjsanders@kjslawpa.com Attorneys for Petitioner Page 3 of 3 CERTIFICATE OF SERVICE I certify that, in compliance with Fla. R. App. P. 9.220 and Fla. R. Gen. Prac. & Jud. Admin. 2.516, the foregoing document has been served via e- mail to the following counsel of record for Respondent, City of Atlantic Beach, upon electronic filing of same with the Clerk of Court via the Florida Courts E-Filing Portal on this 3rd day of December, 2024: THOMAS A. VALDEZ, ESQ. Quintairos, Prieto, Wood & Boyer, P.A. 1410 North Westshore Blvd., Suite 200 Tampa, Florida 33607 Florida Bar No. 114952 Primary Email: Tvaldez@qpwblaw.com MEGAN G. COLTER, ESQ. Quintairos, Prieto, Wood & Boyer, P.A. 1410 North Westshore Blvd., Suite 200 Tampa, Florida 33607 Florida Bar No. 0097927 Primary Email: Maggie.Colter@qpwblaw.com KJS LAW, P.A. By: /s/ Karl J. Sanders Karl J. Sanders, Esq. IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT Thomas Bourdon, Petitioner(s), v. City of Atlantic Beach, Florida, Respondent(s). Case No.: 5D2023-2519 L.T. No.: 2022-AP-3 Date: December 10, 2024 BY ORDER OF THE COURT: ORDERED that Petitioner’s Motion for Written Opinion, filed December 3, 2024, is denied. I hereby certify that the foregoing is a true copy of) the original Court order. 5D2023-2519 12/10/2024 SANDRA B. WILLIAMS, CLERK Panel: Judges Edwards, Jay and Harris cc: Megan Gisclar Colter Karl J. Sanders Thomas A. Valdez i!:L iik j , CODE ENFORCEMENT s CITY OF ATLANTIC BEACH, FLORIDA M::- sl NOTICE OF HEARING POSTED ON PROPERTY AND tit*ATLANT EA CIT HALL DATE: D''. k412/16/2024 Case Number: 21-087 BOURDON THOMAS PATRICK Certified Mail Return Receipt: 342 19TH STREET 7013 1710 0002 1691 0711 ATLANTIC BEACH, FL 32233 Property Address: 342 19m STREET ATLANTIC BEACH,FL Dear Respondent: You are hereby notified and ordered to appear at the next public hearing of the Code Enforcement Special Magistrate on January 7, 2025 at 2:00 pm at Atlantic Beach City Hall, Commission Chamber, 800 Seminole Road,to answer and be heard on the following alleged violations on the property known as 342 19TH ST, 36-64 09-2S-29E SELVA MARINA UNIT 12-A LOT 5 Atlantic Beach, Florida. The City of Atlantic Beach adopted the International Property Maintenance Code and the Florida Building Code as part of the City of Atlantic Beach Code of Ordinances in Chapter 6,Article II, Section 6-16. International Property Maintenance Code/City Code of Ordinances 1. Sec. 23-51. (d) Sanctions for failure to obtain a permit.(1)Regulated trees or regulated vegetation removed in violation of this chapter shall require an after-the-fact permit, the fee for which shall be two (2)times the normal established application fee specified in section 23-26.In addition, as a condition of the permit,the applicant shall immediately complete all remedial work as necessary to stabilize the site and mitigate all damage to the site and adjacent properties. (2)Regulated trees removed in violation of this chapter shall be assessed at two (2)times the normal established rate of mitigation specified in section 23-33. 2. Sec 23-46. - Violations, including failure to make proper application for a tree or vegetation removal permit as required by these provisions, or failure to implement any requirements or conditions of a tree or vegetation removal permit, shall be deemed a violation of this chapter, and shall be subject to code enforcement procedures as set forth within chapter 2, article V, division 2 of this Municipal Code of Ordinances and any other remedies available under applicable law. STATEMENT OF CODE ENFORCEMENT OFFICER: A stop work order was posted on 8/3/2020 for the removal of trees without a permit at this property. Code enforcement action was taken to compel compliance with the city's tree code and ultimately a Special Magistrate order was issued on 1/27/2022 ordering the Respondent to comply with the city's tree code. The order required a mitigation plan to be submitted within 60 days, mitigation payments to be made within 75 days, and tree plantings to be completed within 120 days of the date of execution of the order. The case was appealed to the Circuit Court, Fourth Judicial Circuit, Duval County and the Magistrates order was upheld. The case was then Page 1 of 2 appealed to the District Court of Appeal, Fifth District, State of Florida and the appeal court denied the request on 11/18/2024. The Respondent, Mr. Thomas Bourdon, met with City officials on November 22, 2024. Mr. Bourdon expressed his agreement to move forward with mitigation and paid an initial $5,000 payment towards his owed mitigation into the city's tree fund. The deadlines for compliance in the original Magistrate order dated 1/27/2022 have expired. The City desires to establish a new timeline for compliance. If the violation is corrected and then recurs or if the violation was not corrected by the time specified for correction by the Code Enforcement Officer in the Notice of Violation that you received,the case may be presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. You have the right to obtain an attorney at your own expense and to present witnesses on your behalf. If you desire to have witnesses subpoenaed or if you have questions regarding the procedure,please contact the City Clerk's office within five days of the receipt of this notice at (904) 247-5821. Please note the presence of a court reporter for the purpose of ensuring a verbatim record in the event an appeal should be secured at your expense. I, Esti I, ' . _ ? e hereby swear and affirm that the above statement is • • :ccurate. 16/ 1) . a ri 01 46 Code Enforcement Officer, ity of Atlantic Beach ATTEST: 4(a._ ....litik- m/t, Michelle Weippert, Records Management Specialist Page 2 of 2 Irizarry,Angela From: Thomas Bourdon <tombourdon7@gmail.com> Sent: Monday, December 23, 2024 12:42 PM To:Irizarry,Angela Subject: Re: Notice of Hearing. Hi Angela - I appreciate you reaching out.We are traveling for Christmas but confirming receipt of the hearing request and of course will be there. Best, Tom On Mon, Dec 23, 2024 at 12:25 PM Irizarry,Angela <alrizarry@coab.us>wrote: Hello Mr. Bourdon, I just tried knocking on your door, but you weren't home. Hopefully you guys are out enjoying your holiday somewhere. I know we discussed the hearing coming up next month, but I just wanted to shoot you a quick email. Because of timing, I had to post the notice of hearing today which I hated to do right before the holidays but I just wanted to let you know, it's just the hearing that we discussed already just to get into the order what you've already agreed to and what we've all agreed to. It does have things about penalties n the letter, but that's just standard language.The city is not asking for any new fines at that meeting. It's just to put on paper what we agreed to in the office. I hope your family has a wonderful holiday. Angela Irizarry Get Outlook for iOS<https://aka.ms/o0ukef> 1