Although Sarasota Tree Advisory Council suggests higher mitigation payments for removal of Grand Trees, commissioners do not add those figures to new regulations
Asserting that they were taking action to strengthen county regulations regarding the protection of Grand Trees, the Sarasota County commissioners this week unanimously approved new language for the section of the Sarasota County Code regarding development on both new and existing lots where Grand Trees stand.
Rachel Herman, manager of the county’s Environmental Protection Division, used a flyer staff had created to go through the proposed changes during the Jan. 31 public hearing. The affected section of the County Code is Chapter 54, Article XVIII, she noted.
The reasoning behind that, Herman explained, is that with new lots, a developer generally has more land with which to design a project, so it should be easier to preserve Grand Trees.
One of the seven members of the public who spoke during the hearing, Pam Bournival of Sarasota, pointed out that when a person considers buying a lot, the person should be able to see all the facets of the property that would have to be taken into consideration during any planning for construction. A developer, she said, “can plat around [Grand Trees]. They don’t have to mow ’em down. They can still make plenty of money.”
In response to a question from Commissioner Mark Smith, Herman said she believes the changes the board approved this week will not allow developers to remove Grand Trees more easily. Instead, she continued, the ordinance clarifies conditions for removal of Grand Trees. Herman added that that she believes “that would be a benefit to developers, to have more certainty around that.”
Smith also alluded to public outcry over Benderson Development’s late 2022 clear-cutting of the Siesta Promenade site in the northwest quadrant of the U.S. 41/Stickney Point Road intersection.
Another speaker during the Jan. 31 public hearing, Leslie Harris of Sarasota, a member of the Sierra Club, told the board members, “I am still reeling” from the removal of all of the trees on the Benderson Development land.
When Commissioner Smith asked Herman whether the company obtained a Tree Permit for that work, Herman responded that it did.
Additionally, Herman said, in advance of the Dec. 12, 2018 public hearing during which a majority of the commissioners approved the mixed-use project on approximately 24 acres, Benderson had submitted a Binding Development Concept Plan that showed how it would lay out the site. Siesta Promenade has been designed with 414 apartments/condominiums, a 130-room hotel, 133,000 square feet of retail space, and 7,000 square feet of office space.
In approving Benderson Development’s application, Herman indicated, the commissioners also approved that Binding Development Concept Plan. Any member of the public could have raised a concern about the removal of trees during that 2018 hearing, she added.
Then, when Smith asked Herman whether trees will be planted on the property to make up for those taken down, Herman replied that county regulations require one tree per 2,000 square feet of a parcel, though any trees preserved on a site count toward the total indicated by that County Code provision.
In making the necessary motions to implement the new ordinance, Commissioner Michael Moran pointed out that he and his colleagues “had a whole lot of emails related [to the hearing].” He added that he believed much misinformation about the proposed changes had been disseminated on purpose.
Private property rights dictated the need for the new ordinance, Moran continued. The state already has its own restrictions on development, he said. With local government regulations on top of state limitations, he added, “People can make arguments that you are doing a ‘taking’ of a property.”
Herman also had noted during her presentation that the commissioners included an updating of the Grand Trees section of the County Code as one of their strategic plans for 2022.
In seconding Moran’s motions, Commissioner Nancy Detert acknowledged that the board members’ discussions with staff that day looked “a little messy.” However, she emphasized, “This is what transparency looks like.”
Detert added of Herman, “She’s always taken the environmentalist viewpoint. I rely on her to sing that song for us.”
Detert told Herman, “I think you did a good job with the tree ordinance.”
Then, addressing the persons who spoke during the hearing — five of whom had urged strong provisions in the County Code to keep Grand Trees in place — Detert said that all of the commissioners want to protect Grand Trees “in the best way we possibly can.”
Nonetheless, several of the speakers emphasized how long it takes for newly planted trees to mature into Grand Trees, stressing the need to preserve the Grand Trees instead.
“When you cut a Grand Tree,” Jean Trapani of Nokomis said, “it is not replaceable in our lifetimes.”
Gina Brulato of Sarasota pointed out, “Trees take decades to grow. … We have a responsibility that future generations will have these trees that have been here longer than we have.”
The changes
During her presentation at the outset of the hearing, Herman first noted that staff had created separate requirements for development on existing lots and new lots.
For existing lots, she explained, Grand Trees could be removed for safety reasons or, as the ordinance put it, “If the applicant can clearly demonstrate to the satisfaction of the administrator during permit review, or the [commission] on appeal, respectively, that setting aside the space necessary to protect a Grand Tree would unreasonably prevent the development of a lot.”
Then, for new lots, she continued, again, a Grand Tree could be removed for safety reasons or if it is located within a required access point for the lot, “with no other reasonable alternative access point as determined by the Code Administrator in consultation with the Sarasota County Engineer.”
Spencer Anderson, who heads up the Public Works Department, is also the county engineer.
In response to commissioners’ comments about how a new lot would be distinguished from an existing lot, the board members agreed to revise the draft ordinance to make it clear that any lot created after the effective date of the new ordinance would be characterized as a new lot. That effective date was Jan. 31, Herman told the News Leader in a Feb. 1 email.
Chair Ron Cutsinger also suggested the addition of language regarding new lots, so it would allow for the removal of Grand Trees if the rezoning of a small lot were being requested, and the position of one or more Grand Trees would unreasonably prevent the development of that lot.
None of his colleagues objected to that modification. Therefore, Matt Osterhoudt, director of the county’s Planning and Development Services Department, told the board members later that staff would revise the affected section as Cutsinger had proposed.
Further, Herman explained, mitigation payments would differ in regard to whether Grand Trees were being removed from existing lots or new lots.
For an existing lot, a person who removes a Grand Tree would pay $200 per inch of diameter at breast height (DBH) for every tree not replanted on the site. “For every 25% of the total DBH inch that is replanted on site, the $200 fee is reduced by $50,” the new ordinance says. “All calculations are to be rounded down in consideration of replanting.”
For new lots, the fee would be $400 per DBH inch not replanted.
In response to board questions, Herman said that the mitigation payments are used to pay for new trees on county-owned property — on rights of way, for example, or in parks. Benderson Park, near University Parkway, has benefitted from such funding, Herman noted.
The county’s Sarasota Tree Advisory Council (STAC), Herman pointed out, did submit a letter for commission consideration, in regard to the mitigation payments.
That letter — a copy of which she provided each commissioner — called for the doubling of the fees. In other words, for existing lots, the amount would be $400 per DBH inch not replaced on the site. For a new lot, the fee would be $800.
Wayne Grubbs, chair of the advisory board, wrote in the Jan. 25 letter, “The consensus of the STAC is that the existing fee structures are very low in comparison to the current cost of construction and development along with the eventual income of the developed property. That sets up a financial environment where the current fees are not enough of a financial incentive to significantly discourage the removal of Grand Trees.”
One of the speakers during the hearing, Marilyn Lenoir of Nokomis, characterized the proposed ordinance as “a giant workaround” for developers, because it lets them do what they want, even if they have to pay higher mitigation fees in regard to construction on new lots. “Charge ’em more and make it tougher,” she urged the commissioners.
Commissioner Mark Smith said during the hearing that he supported the STAC recommendation, but it did not end up being part of the new ordinance. Board members suggested further tweaks could be made in the future.
Yet another new section of the Code clarifies the appeals process relating to staff decisions regarding removal of Grand Trees, Herman continued.
That section says, “Any applicant or owner aggrieved by the administration or interpretation of any of the terms or provisions of this article may appeal to the board, which, after a hearing, with notice to the appellant, may reverse, affirm, or modify, in whole or in part, the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the administrator from whom the appeal is taken. The board may consider such appeals concurrently with rezoning or special exception petitions when there is a binding development concept plan associated with the petition. There is no fee associated with the appeals process. Any action pursuant to this section shall not stay any enforcement proceedings.”
Another new section involves flexibility in the replanting requirements for new commercial properties. Reflecting a response Herman offered to one of Commissioner Smith’s question, that section says, “One Tree shall be planted for each 2,000 square feet of the property. Native Trees in good condition protected as part of a Tree Permit may be counted toward the total number of Trees required to be planted.”
Then, for expansions or additions to existing commercial development, the amended section of the Code calls for the tree planting requirements in another part of the Code to be “calculated based on the square footage of the new impervious area of the Lot being developed. For determining Tree planting requirements, new shell parking areas are considered impervious.”
Finally, Herman said she wanted to clarify for the public that a county Tree Permit is required for all new development.
What is a ‘Grand Tree’?
Grand Trees are “determined by adding points calculated for the diameter, height and spread of a tree together. If the sum equals or is greater than the defined point total for your tree species, it is considered a Grand Tree,” a county flyer, with graphics, explains. The diameter, for example, is calculated by measuring the trunk at a point 4.5 feet from the ground — breast height — and dividing the figure by 3.14.
The graph says a tree gets 1 point per inch of diameter at breast height, as measured above; 1 point per foot of height; and 1 point per each 4 feet of average canopy spread.
To be considered a Grand Tree, an American elm would have to earn a total of 100 points, while a Southern magnolia would need 80 points, the flyer notes.
Concerns about vagueness in the draft ordinance
Although Chair Cutsinger initially said that 10 people had signed up to speak during the Jan. 31 hearing, three of them had left by the time he called their names. (The hearing did not begin until early afternoon.)
Among those who did address the board, several complained about vagueness in some parts of the proposed ordinance.
Joe Medred of Genesis Planning and Development in Bradenton, which acts as an agent for developers in land-use cases, referenced “undefined terms.”
One example he referenced was the need for a person or company “to demonstrate to the satisfaction of the administrator during permit review, or the [commission] on appeal, respectively, that setting aside the space necessary to protect a Grand Tree would unreasonably prevent the development of a lot.”
He asked the commissioners to continue the hearing so staff could modify that language.
The very first speaker, Brulato of Sarasota, noted the fact that portions of the ordinance seemed subjective. As a result, she said she believes more Grand Trees will end up being taken down.
“It’s cheaper for developers to clear an entire lot for easier access,” she said. “Just witness how they do it now.”