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
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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.
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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.