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8 Composite - City's Response to Bourdon's September 1 SubmittalCity of Atlantic Beach 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 Developmen 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 it 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 441 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 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.