At board’s request, staff proposing amendments to county’s environmental protection regulations
With Sarasota County’s Environmental staff proposing amendments to the County Code, at the County Commission’s direction, two board members this week emphasized the need for more flexibility in the removal of Grand Trees.
As noted in a county staff memo provided in the board’s packet for its Oct. 11 regular meeting, the commission’s 2022 Strategic Plan called for an “Environmental Code Review,” especially with regard to “entitlements and land use, horizontal construction, vertical construction, project [close-out], and operations and maintenance,” as the memo characterized the direction.
Taking the Oct. 11 commissioners’ comments into consideration, Rachel Herman, manager of the Environmental Protection Division, said staff plans to come back to the board members in November or December with revised drafts of County Code amendments and a request to advertise a public hearing on them in December or January 2023.
Commissioner Ron Cutsinger was the first to address the Grand Tree issue during the Oct. 11 regular meeting, followed by Commissioner Michael Moran.
A chart that Herman showed the commissioners suggested that Section 54-586(2)(c) of the County Code remain in place. That calls for staff to allow the removal of Grand Trees on platted lots for either safety reasons or if the location of a Grand Tree “would unreasonably prevent the Development of a Lot.”
Staff then has proposed that, for a new development, a Grand Tree could be removed for safety reasons or if it is in an area that will serve as an access point for the site. The applicant for the development would have to provide staff a written report “bearing the signature of a licensed architect, licensed landscape architect, or licensed engineer providing a determination that the proposed access point cannot be reasonably redesigned to preserve the Grand Tree,” the staff proposal says.
Staff’s commentary on the chart showing that proposed change noted, “This provides additional information that the Code Administrator will evaluate in determining whether to approve the removal of a Grand Tree. As drafted, the Code Administrator will consult with the County Engineer in making this determination.”
“The issue I see on a lot of these,” Cutsinger told Herman, is “a lot of subjectiveness here in terms of who makes the call.” He added, “What happens if staff disagrees with the [persons hired by the developer]?”
“The ‘relief valve’ for that,” Herman replied, is for the applicant to seek a determination by the County Commission.
However, she pointed out, staff has dealt with very few appeals of that nature. That “relief valve” already is part of the County Code.
When Cutsinger asked whether the person making the appeal would have to pay a fee to have the County Commission review the issue and make the final decision, Herman responded that she was not certain. “We’d have to look at that and report back.” Again, she noted, “It’s a very infrequent thing.”
A county flyer explains, “Grand Trees are determined by adding points calculated for the diameter, height and spread of a tree together.” The flyer provides a formula for that calculation and lists the minimum number of points needed for a tree of a specific species to be considered a Grand Tree. For example, a live oak would have to have at least 100 points, while a Southern magnolia would need only 80.
Chair Alan Maio pointed out on Oct. 11 that he had had many discussions with county residents regarding Grand Trees on platted lots. “Unincorporated Sarasota County has a lot of 80 by 100-foot platted lots,” he said. “Anyone who thinks [otherwise] is mistaken.” A Grand Tree might be “right square in the middle” of one of those, Maio continued.
“On the Grand Trees,” he told Herman, “I think you did a great job.”
Debate over mitigation payment options
Cutsinger also questioned staff recommendations regarding the differentiation of “mitigation payments for impacts associated with platted lots compared to new development.”
That section of Herman’s chart said the following: “When site-specific conditions limit or prevent the replacement of Trees on-site when a Grand Tree meets the removal criteria, the applicant shall pay $200.00 per diameter breast height (DBH) inch not replanted to the Reforestation Fund. Currently, this mitigation fee makes no distinction between platted lots and new developments. For new developments, applicants have more options to either design around Grand Trees or replant on-site. Platted lots are more constrained, and consideration of these limited options should be reflected in the mitigation fees. To address this issue, an incentivized discount for replanting lost inches is being considered for platted lots, such that for every 25% of the total inches replanted on the site, the $200 per DBH fee is reduced by $50 (e.g., if 25% replanted inches, remainder payment is $150/DBH inches; if 50% of the inches are replanted then the remaining payment is $100/DBH inches). For all other types of development not on platted lots, the mitigation fee for impacts to Grand Trees is proposed to increase to $400/DBH inch.”
That section then noted the staff’s comments: “This revision creates a sliding scale for existing platted lots with a financial incentive to plant trees. An increase of the cost of replanting fee associated with Grand Tree removal for new development (that development not occurring on a previously platted lot) is being considered, and associated violation mitigation payments would also increase to encourage proper designs that protect Grand Trees.”
Cutsinger told Herman that he did not find that that proposal for revising the County Code allows “for just straight-out mitigation of a Grand Tree.” If a developer or landowner is planning a project, Cutsinger continued, and he or she says the tree has to be removed, “to make [the design] efficient [or] to make it financially feasible,” the proposal does not seem to allow that, he added.
“I’d like to look at some options for what might be possible,” in regard to mitigating the removal of Grand Trees in such circumstances, Cutsinger continued. “I don’t see any flexibility [in that revised Code language].”
Herman reminded him that the existing Code allows for a developer or landowner to remove a Grand Tree if it unreasonably impedes the proposed construction or if it poses a safety concern. The person would pay a mitigation fee, she added. Staff is recommending that a developer or landowner also could pay a mitigation fee, “or plant some number of tree inches on that site,” if a Grand Tree also obstructs the planned access to the development.
“Tree inches” refers to new plantings that would make up for the total tree diameter inches lost through the removal of the Grand Tree.
Then Chair Maio referenced the last part of the staff commentary on the mitigation payments section of the chart, noting that that appeared to be relevant to Cutsinger’s question.
“But it’s only an option if staff agrees,” Cutsinger pointed out, though he asked Herman for clarification.
She explained that the landowner or developer would have to meet the criteria as noted for new developments. The Code does not allow mitigation payments if a person just wants to remove a Grand Tree without meeting any of the criteria, she added.
“I’d like to look at some options for that,” Cutsinger replied, taking into consideration that “what staff says is reasonable [might differ from] what a landowner or developer might say is reasonable …”
Commissioner Moran told Cutsinger, “You are hitting right on the cylinders that I was going to get to …”
Moran stressed, “I think the process needs to be incredibly sensitive when a property owner just flat-out disagrees with staff [or if the person thinks] staff is pushing a personal agenda.”
“There needs to be a relief valve,” Moran continued, that allows the landowner or developer to make his or her case to the commissioners, and then the commissioners would make the final determination. “Good or bad, our final vote matters on this. That’s why elections matter.”
Further, he said, “It needs to be a very easy process … No fees; no obstacles; no hurdles. They can, without repercussions, come to this board and say, ‘I just respectfully disagree [with staff].’ ”
Then Moran indicated that a constituent had complained to him that county staff was more subjective in situations involving Grand Trees than staff is in making a determination about whether a wetlands system exists in an area, for example.
A developer might have room to construct 100 dwelling units on a lot if a Grand Tree were removed, Moran pointed out. What would be the threshold staff would consider “reasonable,” he asked, to allow the removal of that tree? Would it be a loss of four dwelling units, he continued.
“I’m just trying to add some common sense to this,” he said.
Then Moran asked Herman who decides whether a staff determination can be appealed.
As staff members review a development application, she responded, “We try very hard” to apply the language of the County Code to the facets of the proposal.
If an applicant disagrees with the staff viewpoint, Herman added, the applicant can appeal to the County Commission.
Commissioner Nancy Detert acknowledged, “I understand people say staff is pushing an agenda.” However, she added, “I don’t really feel that to be true.” Nonetheless, she said, the County Commission should be the entity that makes the final decision, because the board members are elected.
Both Commissioners Cutsinger and Moran again asserted their belief in the importance of the appeals process. “With that healthy appeal process,” Moran said, “you shake it all out.”
He added that the commissioners do make fast decisions on such issues.
Stakeholder comments and recommendations
An attachment in the board packet for the Oct. 11 agenda item included summaries of stakeholders’ remarks on the Grand Tree issue, as provided to staff members.
Among those points were the following:
- “Sites keep getting more constrained; not a lot of flexibility. Hard to get assurances that the trees can be removed based on the [County Code] criteria. Applicants want more certainty. Unreasonable development of the Lot.
- “Start by looking at the trees when people buy the property. Perceived inequity when some sites are developed, and others have seemingly more restrictions.”
- Staff should allow for non-binding concept plans for new developments to be used in rezoning applications whenever possible. “A higher level of detail comes with the civil [engineering] plans” during the site development review process after a rezoning wins County Commission approval.
Among the stakeholders’ recommendations were these:
- “Payment in lieu of replanting if mitigation is approved. One or the other or both.” Staff responded, “Refer to existing code language [Section] 54-589(2)(d) — a combination of payment and replanting is currently allowed.
- “Consider raising the mitigation fees for authorized impacts to Grand Trees for new development and/or lowering the fees for single-family platted lots.”
- “Consider allowing replanting on public property.” Staff noted that “mitigation fees are applied to the Reforestation Fund,” with the funds used for replanting on public property.
At the conclusion of the discussion, Chair Maio asked Herman whether she had enough comments from the board members to proceed with drafting further County Code modifications regarding the Grand Trees.
“Took some notes,” she replied.