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10-04-99 v AGENDA 4110 REGULAR MEETING OF TREE CONSERVATION BOARD October 4, 1999 7:30 p.m. City Hall Commission Chambers 1. Call to Order 2. Recognition of Visitors 3. Old Business A. Tree Removal Applications 1) Lot 80, Saltair, Section 3 4. New Business A. Tree Removal Applications 1) None 5. Reports and Announcements IIII6. Approval of Minutes of Meeting of September 20, 1999 7. Adjournment If any person decides to appeal any decision made by the Tree Conservation Board at the above meeting, he will need a record of the proceedings, and for such purpose,may need to ensure that a verbatim record 0 of the proceedings is made,which record shall include the testimony of evidence upon which appeal is to be based. • _ MINUTES OF TREE CONSERVATION BOARD • October 4, 1999 A regular meeting of the Tree Conservation Board was held Monday, October 4, 1999, in the City Hall Commission Chambers. Present were Mae Jones, Chairperson, Camille Hunter,Eloise Koerber and Staff Member Susan Dunham. The meeting was called to order by Chairperson Mae Jones at 7:35 p.m. 3.A. Old Business/Tree Removal Applications 1. Lot 80, Saltair, Section 3: Mr. Steve Cail introduced himself to the Board as the property owner. Mr. Cail is requesting approval for removal of trees to build a single family home. Mae Jones advised Mr. Cail that the 14"Twin Bay is actually a multi-trunk tree and measures 32." Mae Jones also discussed her concern in regard to trees marked with red on the site that were not marked for removal on the site plan. Mr. Cail stated that he would remove the red tags on the 12"and 15"Sabal Palms and 15"Cabbage Palm on the City right-of-way at Sherry Drive, and the 15"and 18"Bays at the west side of the lot. The Board members discussed with Mr. Cail the possibility of changing the location of the driveway in an attempt to save the 10"Elm and the 18"Bay in order to reduce Mr. Cail's mitigation. Mr. Cail requested a deferral of action so that he can determine if there are any existing trees on the lot that can be used for mitigation. Eloise Koerber moved that the Board defer any action on Lot 80, Saltair, Section 3,until such time as the applicant, Steve Cail, returns to the Tree Board with additional information for his application. Camille Hunter seconded the motion, which passed unanimously. 4.A.New Business/Tree Removal Applications • 1. None. 5. Reports and Announcements Camille Hunter expressed concern regarding 1777 Beach Avenue. The lot has been cleared of trees except for one palm tree marked with a red ribbon. Also,there are piles of sand at least ten feet tall throughout the lot. The Board members acknowledged receipt of the letter to Alan Jensen,Esquire, from William A. Quattrucci,Jr., Esquire, dated September 28, 1999,regarding 750 Mayport Road which is attached and made a part of these Minutes. The Board requested that Susan Dunham follow-up with Mr.Jensen. It was requested that the following paragraph be added to the Tree Removal Application: "It is advisable that the applicant, or a representative of the applicant, attend the Tree Conservation Board meeting to represent the information on the application." 6. Approval of Minutes of Meeting of September 20, 1999 Camille Hunter moved to approve the Minutes of the meeting of September 20, 1999 as submitted; Eloise Koerber seconded and the motion carried. 7. Adjournment eThere being no other business before the Board,the meeting was adjourned at 8:50 p.m.ifs/ • 'a har' :31, Sec etary WILLIAM A. QUATTRUCCI, JR., P.A. ✓Oto. . ./1'G ur • 333 First Street North, Suite 305 Jacksonville Beach, Florida 32250 Licensed in the States of Rhode Island&Florida Telephone (904) 249-7583 Facsimile (904) 249-0841 September 28, 1999 City of Atlantic Beach, Florida C/O Alan C. Jensen, Esquire 935 N Third St PO Box 50457 Jacksonville Beach, Florida 32240-0457 Re: City of Atlantic Beach, Tree Conservation Board v. David E. Lewis Dear Mr. Jensen: The Atlantic Beach Tree Conservation Board held a meeting on Monday, June 7, 1999, in the City Hall Commission Chambers. Present were Mae Jones, Chairperson, Richard Bell, Camille Hunter, Judith Jacobson, and Staff Members George Worley and 411 Susan Dunham. The Board reviewed and made a determination concerning a tree removal permit application submitted by David E. Lewis for two trees at 750 Mayport Road. The Board determined that because the trees were cut before the application was accepted, all 78" will need to be mitigated with hardwood. Mr. Lewis made a written request for modification of the standards of mitigation applied to him. The Board denied Mr. Lewis'request on September 7, 1999, allowing him 30 days in which to submit a mitigation plan. The expense for mitigation is approximately $82.50 per inch. Requiring Mr. Lewis to mitigate all 78" of tree removed penalizes Mr. Lewis $6,435.00, or $82.50 per inch. Because Mr. Lewis was charged with violating the City Code by removing trees from his land without a permit, he has standing to challenge the constitutionality of the City Code in the Circuit Court of Duval County, Florida. See Metropolitan Dade County v. Department of Commerce, 365 So.2d 432 (Fla 3rd DCA 1978). It is a fundamental principle of law that a proper delegation of legislative authority to an administrative body must impose sufficient guidelines upon that body in order to withstand constitutional attacks. Otherwise, the body's decision could be arbitrary or capricious. Pursuant to § 23-19(g) of Article II Tree Protection, the Tree Board shall review, approve or deny requests for tree removal as called for in § 23-17 and may require • Page 1 of 2 r mitigation of trees removed. § 23-17 sets forth no guidelines or standards to be applied by the Tree Board in deciding whether to approve or deny the issuance of a tree permit. Therefore, the Code is overly broad, imprecise and too loose, constituting • an unlawful delegation of authority. Further, the 6 criterion for the Tree Board to consider in determining mitigation that are set forth in § 23-19(g) are also an unconstitutional delegation of authority. Other Florida County and City Codes have set forth the same or similar 6 criterion as guidelines for tree removal permits that § 23-19(g) sets forth as mitigation guidelines. Those 6 criterion have been found to be unconstitutional as overly broad, imprecise and too loose. See Pinellas County v. Jasmine Plaza, Inc., 334 So.2d 639 (Fla 2nd DCA 1976) and Clemente v. Earnest, 516 So.2d 981 (Fla 3rd DCA 1987). See W.L Watson v. City of St. Petersburg, 489 So.2d 138 (Fla 2nd DCA 1986) for a tree removal permit ordinance setting forth guidelines that uphold constitutional muster. The Tree Board penalized Mr. Lewis $6,435.00, or $82.50 per inch for 78" of tree removed under§ 23-17(g)(3)(a), for not applying for a permit prior to tree removal. The Tree Board has no authority to penalize Mr. Lewis $6,435.00. Pursuant to Code of Ordinances City of Atlantic Beach, Florida, Part I Charter Article II The Commission Sec. 9 Powers, the City Commission has the power to: (7) Pass ordinances and laws for the preservation of the Public peace and order and impose penalties for the violation thereof; provided that the maximun penalty to be imposed shall be a fine of not more than one thousand dollars ($1,000) and imprisonment for a period of time not longer than ninety (90) days. We are confident that Mr. Lewis will prevail on a claim for declaratory judgment against the City finding Article II Tree Protection unconstitutional. Under F.S.A. § • 86.011, a declaratory judgment has the force and effect of a final judgment precluding all issues between the parties and their privies. We ask that the City take this opportunity to review and amend Article II, specifically §§ 23-17 and 23-19 so that it is constitutionally sound to promote the health, safety and welfare of the current and future residents of the City of Atlantic Beach. Further, we ask that the City dismiss the proceedings in this matter and release Mr. Lewis from all liability. Thank you and I look forward to meeting with you to resolve this matter as efficiently as possible. Please call my office with any questions or concerns. Sincerely, 47' William A. Q attrucci, Jr., Esquire CC: David E. Lewis City of Atlantic Beach, Tree Conservation Board Page 2 of 2