This chapter shall be known and may be cited as the "Indian River County Tree Protection and Land Clearing Ordinance."

(Ord. No. 90-16, § 1, 9-11-90)

This chapter shall be applicable to all land lying in the unincorporated area of Indian River County, Florida. This chapter shall not apply to the following species of mangroves:

Avicennia germinans - black mangrove

Rhizophora mangle - red mangrove

Laguncularia racemosa - white mangrove

The trimming, cutting, removal, and other similar actions affecting mangroves are regulated by the Florida Department of Environmental Protection and/or the St. Johns River Water Management District, and these actions may require permits from one (1) of these agencies.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2002-030, § 2, 11-12-02; Ord. No. 2004-041, § 2, 12-7-04)

The intent of this chapter is to preserve and protect trees and native vegetation in unincorporated Indian River County during the land development and construction process. It is also the intent of this chapter to ensure that the health of preserved trees and native vegetation will be maintained.

Trees and native vegetation are recognized for their importance in: shading; cooling; reducing noise and wind; preventing soil erosion; producing oxygen; filtering dust; absorbing carbon dioxide; enhancing aesthetics; and increasing the economic value of real property. Trees also contribute to the general well-being and quality of life in Indian River County.

To achieve the objectives listed above, the county deems it necessary to provide for the protection and preservation of trees, to prevent the reduction of the existing tree canopy, and to prevent the unnecessary removal of trees and other native vegetation. The purpose of this ordinance is to:

(1)

Provide standards for the protection of trees and native vegetation as part of the land development process; and

(2)

Prevent large-scale land clearing without provision for the preservation of protected trees, specimen trees, coastal hammocks, and other native vegetation; and

(3)

Protect trees and native vegetation during construction to increase the trees' and vegetation's probability for their long-term health and survival; and

(4)

Provide for the replacement of tree canopy removed as a result of the construction process, whether the tree canopy replacement occurs on site or at another location.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2004-041, § 2, 12-7-04)

The definitions of certain terms used in this chapter are set forth in Chapter 901, Definitions, of the Indian River Land Development Code. Notwithstanding, the following definitions of "protected tree" and "specimen tree" (reiterated in Chapter 901) apply to this chapter.

Tree, protected: any tree having a diameter-at-breast-height (dbh) of four (4) inches or more, but not including "specimen trees." Cabbage palms (Sabal palmetto) with ten (10) feet or more of clear trunk, regardless of dbh, are protected trees. Protected trees shall also include each tree, regardless of the dbh of the individual tree, within a significant grouping of trees of West Indian or tropical origin. The following trees, regardless of size or location, and any other trees listed on the Florida Exotic Pest Plant Council's most current list of invasive species, shall not be considered to be protected trees:

Casuarina spp. - Australian pine

Enterolobium cyclocarpum - Earpod

Melia azedarach - Chinaberry

Schinus terebinthifolius - Brazilian pepper tree

Melaleuca quinquenervia - Melaleuca, punk or paper tree

Cupania anacardioides - Carrotwood

Citrus trees of all varieties shall not be considered protected trees.

Tree, specimen a tree that is in good health and sound structural condition and is a species with a diameter-at-breast-height (dbh) as follows:

Any hardwood tree not listed herein that has a dbh of nine (9) inches or greater and is in good health and sound structural condition is deemed a specimen tree; excluding, however, the following trees, regardless of size or location, and any other trees listed on the Florida Exotic Pest Plant Council's most current list of invasive species:

Casuarina spp. - Australian pine

Enterolobium cyclocarpum - Earpod

Melia azedarach - Chinaberry

Schinus terebinthifolius - Brazilian pepper tree

Melaleuca quinquenervia - Melaleuca, punk or paper tree

Cupania anacardioides - Carrotwood

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2004-041, § 2, 12-7-04)

Unless expressly exempted herein, it shall be unlawful and subject to the penalties provided herein for any person directly or indirectly by another on his behalf to:

(1)

Remove, relocate, destroy or damage any protected tree or specimen tree on any site or tract without first obtaining a tree removal permit pursuant to this chapter.

(2)

Perform any land-clearing or grubbing unless a land-clearing permit, if required, has been issued and is posted on-site pursuant to this chapter.

(3)

Perform tree removal, land-clearing, grubbing, grading, excavation, construction, or make or install any improvement upon any site or tract, regardless of the existence of valid permits or approvals for the given activity, unless each protected tree and each specimen tree to be preserved pursuant to this chapter has been marked by a highly visible band and unless all critical root zones established pursuant to this chapter have been surrounded by a protective barrier prior to the beginning of development activities. The protective barrier must remain in place throughout the duration of clearing and development activities.

(4)

Encroach onto critical root zones established pursuant to this chapter by any of the following acts or omissions:

(a)

Movement or storage of any vehicle within or across a critical root zone;

(b)

The storage of building materials, debris, fill, soil or any other matter within a critical root zone;

(c)

The cleaning of material or equipment within a critical root zone;

(d)

The disposal of any liquid or solid waste material, such as paints, oils, solvents, asphalt, concrete, mortar, or other similarly harmful materials, within a critical root zone; and

(e)

The placement of any structure or site improvement within a tree's critical root zone, with the exception of landscaping or related irrigation improvements, unless expressly determined by environmental planning staff that such structure or site improvement will not result in the death or damage to the subject tree. In making this determination, environmental planning staff shall consider the following information which shall be provided by the landowner or applicant:

1.

The type of proposed impact.

2.

The amount of the CRZ to be affected.

3.

The location of the impact area within the CRZ; and

4.

The efforts or actions to be taken to reduce or eliminate impacts to the tree.

The landowner or applicant may supply to environmental planning staff a written and signed statement from a certified arborist that states to the best of his/her knowledge that the proposed structure or site improvement will not result in death or damage to the subject tree. In such instances, environmental planning staff will consider the certified arborist statement, along with the required information, to determine whether the proposed encroachment into the CRZ will be allowed.

(5)

Violate or fail to observe any of the requirements or provisions set forth in section 932.05 of Chapter 932, Coastal Management, pertaining to the protection of dune and shoreline vegetation.

(6)

Violate or fail to observe any of the requirements or provisions set forth in Chapter 929, Upland Habitat Protection, pertaining to the protection of native plant communities.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2002-030, § 2, 11-12-02; Ord. No. 2004-041, § 2, 12-7-04)

Notwithstanding anything to the contrary in this chapter, the following activities shall be lawful without application for or issuance of a tree removal or land-clearing permit. None of these exemptions shall apply to any mangrove, dune vegetation, historic tree, or upland native plant community conservation area, unless otherwise stated below. In the event the exempted activity ever becomes subject to an enforcement proceeding, the burden of proving entitlement to the particular exemption shall lie with the person claiming use of the exemption.

(1)

The removal, trimming, pruning, or alteration of any non-protected tree, non-specimen tree, or other vegetation as necessary for:

(a)

The clearing of a path not to exceed four (4) feet in width to provide physical access or view necessary to conduct a survey or site examination for the preparation of subdivision plans, site plans, or trees surveys. Under this permit exemption, no disturbance shall occur to protected trees or specimen trees, or to the critical root zones of protected trees or specimen trees.

(b)

The clearing of a path not to exceed ten (10) feet in width to provide vehicular access necessary to conduct soil percolation and/or soil bore tests on a property, provided such clearing or removal is conducted under the direction of a Florida registered surveyor or engineer. Under this permit exemption, no disturbance shall occur to protected trees or specimen trees, or to the critical root zones of protected trees or specimen trees.

(c)

The removal, pruning, trimming or alteration of any tree not classified as protected or specimen, or vegetation for the purpose of maintaining existing access to a property.

(2)

Routine landscape maintenance such as trimming or pruning of protected trees, specimen trees, or other vegetation, mowing of yards or lawns, or undertaking any other landscaping or gardening activity which is commonly recognized as routine maintenance or replacement.

(3)

The removal, trimming, pruning or alteration of protected trees, specimen trees, or other vegetation in an existing utility easement or right-of-way, provided such work is done by or under the control of the operating utility company and said company has received all necessary licenses or permits to provide utility service within the easement.

(4)

Any activity conducted by a lawfully operating and bona fide commercial nursery, tree farm, agricultural operation, silvicultural operation, ranch, or similar operation, when the activity occurs on the property owned or lawfully occupied by the person conducting said activity and is done in pursuit of said activity. This exemption shall include the purposeful removal of a tree or trees for their permanent relocation at another site undergoing development. When land-clearing or tree removal has been performed under this exemption based upon the use of the property for an agricultural or silvicultural operation, the following shall apply:

(a)

No land development order shall be approved for any non-agricultural or non-silvicultural use or improvement on the same site within two (2) years of the completion of such land clearing or tree removal.

(b)

Pertaining to silviculture, operations shall implement a state division of forestry approved management plan, including a reforestation plan for harvested lands.

(c)

Pertaining to agriculture, operations shall implement a soil and water conservation district approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared.

(5)

The removal of any protected tree, specimen tree, or other tree which has been destroyed or damaged beyond saving, or which constitutes an immediate peril to life or property.

(6)

Tree removal, land clearing, or grubbing of any vegetation, including protected trees and specimen trees, but not including mangroves or dune vegetation, within ten (10) feet of a house.

(7)

Land-clearing or grubbing of vegetation, except for mangroves, dune vegetation, or any native vegetation in a conservation easement, upon any detached single-family residential lot or parcel of land having an area of one (1.0) acre or less, provided this exemption shall not be construed to allow land-clearing or grubbing without permit on any such lot or parcel by its subdivider unless the subdivider intends in good faith to forthwith begin construction of a dwelling unit or units upon said lot. Advertisement or listing for sale of the particular lot or parcel without the dwelling unit shall create a presumption that the subdivider does not intend to forthwith begin such construction and that the intent is for the lot or parcel to be developed by a subsequent purchaser.

(8)

Tree removal, except for mangroves, dune vegetation, or native trees in a conservation easement, upon any detached single-family residential lot or parcel of land having an area of one (1.0) acre or less.

This exemption shall not be construed to allow tree removal without permit on any such lot or parcel by its subdivider unless the subdivider intends in good faith to forthwith begin construction of a dwelling unit or units upon said lot. Advertisement or listing for sale of the particular lot or parcel without the dwelling unit shall create a presumption that the subdivider does not intend to forthwith begin such construction and that the intent is for the lot or parcel to be developed by a subsequent purchaser.

(9)

Removal and replacement of landscape material planted during or after site development, including canopy trees, subject to the previsions of County Code Chapter 926, Landscape and Buffer Regulations.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 92-39, § 23, 9-29-92; Ord. No. 2002-030, § 2, 11-12-02; Ord. No. 2004-041, § 2, 12-7-04; Ord. No. 2005-002, § 1, 2-1-05; Ord. No. 2012-026, § 1, 7-10-12)

(1)

[Generally.] The following permits shall be available upon proper application to the community development department and compliance with this chapter: tree removal permit; land-clearing permit; and dune vegetation maintenance permit.

(2)

Criteria governing issuance:

(a)

Tree removal permit. No tree removal permit shall be issued unless the reviewing environmental planner finds that at least one (1) of the following criteria has been satisfied with respect to each protected tree and each specimen tree designated for removal under the permit. No historic tree (as defined in Chapter 901) shall be removed except as expressly approved by the board of county commissioners.

1.

That the tree is located within an existing or proposed right-of-way, and the tree's location would unreasonably interfere with the physical construction of improvements within the right-of-way.

2.

That the tree is located within an existing or proposed easement or stormwater management tract, and the tree's location would unreasonably interfere with the physical construction of the improvements within the easement or stormwater tract.

3.

That the tree is located where it creates or will create a safety or health hazard and there is no reasonable alternative to relocate or reconfigure the improvements.

4.

That the tree is located where it interferes with the maintenance of existing utility services to the site.

5.

That the tree is located on a portion of a site to be used for construction of required parking areas or vehicular and pedestrian ingress and egress areas.

6.

That the tree is located on a portion of the site where structural development is proposed, provided all reasonable effort has been made to preserve protected trees and specimen trees to the extent feasible under this criterion. With respect to preservation efforts, "reasonable effort" shall include, but not be limited to: altering building design; relocating buildings, parking areas, water retention areas, or drainage pipes; micro-siting buildings or improvements; or relocating utilities. The term "reasonable effort" shall not be construed as including the alternative of not implementing the project in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A reasonable effort that is not technically capable of being done, or is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered "practicable." A reasonable effort need not provide the highest and best use of a property to be "practicable." In determining whether a reasonable effort is practicable, consideration shall also be given to the cost or result of the effort compared to the environmental benefit and/or aesthetic value the effort achieves. If, after all reasonable efforts have been made to save protected and specimen trees, it is necessary to remove the trees, a permit to remove the tree(s) may be issued.

(b)

Land-clearing permit. No land-clearing permit shall be issued unless the environmental planner finds that each of the following criteria has been satisfied:

1.

That the land clearing or grubbing is necessary in order to make site improvements authorized by an approved site plan, subdivision approval, building permit, or land development permit, and that the area to be cleared is the minimum necessary for such work. In the event the aforementioned approvals are not required by law for the intended use of the property, the proposed clearing shall be the minimum necessary for the proposed use or improvement. Land clearing or grubbing of a site associated with a proposed development plan (e.g., site plan or subdivision preliminary plat) shall not be allowed to occur prior to county approval of the applicable development plan, except as specifically exempt in section 927.06.

2.

That the applicant has provided a reasonable, written plan to control erosion that may occur as a result of the proposed clearing or grubbing. The plan shall incorporate some or all of the following means: temporary seeding and mulching, sodding, diversion berms, interceptor ditches, sediment barriers, sediment basins, and related appurtenances or devices. All provisions of an erosion control plan shall be incorporated as expressed conditions of the issued land-clearing permit. A violation of the conditions or provisions of the plan shall be considered a violation of this chapter and subject to all enforcement provisions. Environmental planning staff may request written elaboration of a proposed plan prior to issuance of a permit in order to clarify the nature and design of measures intended by the applicant.

3.

That the applicant has provided verification of St. John River Water Management District (SJRWMD) approval or exemption regarding the proposed land clearing or grubbing activity.

4.

That the applicant has or is complying with all tree protection provisions contained elsewhere in this chapter.

A land-clearing permit does not authorize the removal or destruction of protected trees or specimen trees. Notwithstanding anything in section 927.07 to the contrary, no tree removal or land-clearing permit shall be construed to authorize any act with respect to a mangrove.

(c)

Dune vegetation maintenance permit. Permits to trim dune vegetation shall be available upon proper application in accordance with subsection 932.06(11) of Chapter 932, Coastal Management, which conditions shall govern use of the permit. No permits shall be issued for the removal of any native vegetation oceanward of the county dune stabilization setback line (DSSL), with the exception of permits associated with projects approved by the Florida Department of Environmental Protection (FDEP), or permits associated with plans for dune revegetation and maintenance, as approved by county environmental planning staff and FDEP, as applicable.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2002-030, § 2, 11-12-02; Ord. No. 2004-041, § 2, 12-7-04)

Editor's note— Ord. No. 2002-030, § 2, adopted Nov. 12, 2002, repealed § 927.08, which pertained to additional mangrove protection. See the Table of Amendments.

In addition to the provisions of this chapter, dune and shoreline vegetation shall be protected from disturbance in accordance with the provisions of section 932.06, Chapter 932, Coastal Management, of the County Land Development Code.

(Ord. No. 90-16, § 1, 9-11-90)

In addition to the requirements of this chapter, Chapter 929, Upland Habitat Protection, of the County Land Development Code provides standards and criteria relating to the protection of native plant communities. No land clearing or tree removal activity permitted under this chapter shall be allowed to conflict with Chapter 929 requirements, including:

(1)

Conserving fifteen (15) percent of upland native plant communities, applicable to property five (5) acres or larger in size;

(2)

Establishing shoreline vegetation protection buffer zones along the St. Sebastian River and the Indian River Lagoon Aquatic Preserve;

(3)

Removing nuisance exotic vegetation from development sites; and

(4)

Restricting the removal of upland native vegetation contributing to the stabilization of the banks of canals, ditches, or natural watercourse, provided such restrictions do not impede maintenance of such watercourses or drainage courses.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2004-041, § 2, 12-7-04)

(1)

Application for issuance of any permit required by this chapter shall be made in writing to the community development department on an application form provided by environmental planning staff. The following information shall be required as part of the application:

(a)

A statement as to the applicant's interest in the property, proof of ownership, and agent authorization from the property owner, as applicable.

(b)

A legal description of the property and a boundary survey or accurate scaled drawing thereof.

(c)

A tree survey indicating which protected trees and specimen trees are intended for removal, relocation or alteration in any way and those which will be left undisturbed. The tree survey shall be submitted to the environmental planner with the initial application for site plan or subdivision review, as the case may be. On sites which are larger than two (2.0) acres, protected trees and specimen trees may be depicted as a group or cluster rather than as individual trees, provided the group or cluster is one which is to be left entirely undisturbed. A written explanation shall be included with the tree survey that identifies those criteria in section 927.07 of this chapter which justify issuance of the requested permit. In addition, the environmental planner may require tree surveys in specific, target areas.

In addition to the standard tree survey described above, a survey of species of special concern, threatened, or endangered species shall be required on-sites with characteristics conducive to support such species, as identified by county environmental planning staff, in accordance with section 929.09 of Chapter 929, Upland Habitat Protection.

(d)

A tree protection plan. The tree protection plan shall be required as part of the tree removal permit application; except that no tree protection plan shall be required for the removal of trees from an individual single-family lot. The tree protection plan shall be submitted as a separate plan and labeled "Tree Protection Plan." The tree protection plan shall:

1.

Be designed to protect and preserve trees before, during, and for a period of three (3) years after construction. The plan shall be submitted as a separate drawing overlaid on a current survey of the proposed site, drawn to scale and clearly showing all required information as outlined by this section.

2.

Show and label all protected trees and specimen trees that are to remain after construction, the critical root zones (as defined in 927.12) of those trees, the barriers that are to be installed prior to the beginning of development activities, and the methods of tree protection such as fencing, erosion control, aeration systems, etc.

3.

Provide for mitigation of healthy protected and specimen hardwood trees greater than twelve (12) inches dbh (other than cabbage palms) and cabbage palms with ten (10) feet or more of clear trunk that are proposed for removal. The applicable mitigation ratio shall be two (2) inches dbh of replacement trees for every one-inch dbh of tree destroyed; the replacement trees must be of the same genus as the trees removed and must be at least three-inch caliper at one (1) foot above grade level at time of planting. Protected trees re-located from approved building footprint areas to other areas of the same development site may count toward Chapter 927 tree mitigation requirements and Chapter 926 landscaping requirements.

a.

When the property being developed is not appropriate for on-site mitigation, the applicant may relocate mitigation trees off-site onto public lands in the county or to alternative publicly owned sites. No off-site mitigation shall be approved unless the applicant obtains written permission from the appropriate public entity to implement the necessary replanting plan.

b.

If the mitigation trees do not survive for a period of at least three (3) years after initial planting or relocation, the applicant shall be required to replace the dead mitigation trees with trees at least three-inch caliper in an amount to meet the two (2) inches dbh for every one-inch dbh ratio requirement of the initial tree protection plan.

c.

When relocating greater than twelve-inch dbh hardwood trees and/or replacing said trees at a 2:1 dbh ratio are determined by the environmental planner not to be viable alternatives, a fee-in-lieu of mitigation of one hundred dollars ($100.00) per inch dbh of the tree to be removed shall be assessed as a last alternative. This fee shall be payable to the county prior to the issuance of a tree removal permit. Assessed fees under this provision shall be used by the county for native re-vegetation of restoration areas on public conservation lands; for relocating trees or for planting trees on public-controlled lands; for nuisance invasive plant eradication; or for other similar uses that enhance native tree and native vegetation protection and restoration in unincorporated Indian River County.

(e)

An erosion control plan as described in subsection 927.07(2)(b), together with reasons for clearing or grubbing of the site, if land clearing is intended.

(f)

An administrative fee to offset the cost of evaluating the application, said fee amount shall be determined by resolution of the board of county commissioners.

(2)

The filing of an application shall be deemed to extend permission to the environmental planner to inspect the subject property if necessary for purposes of evaluating the application.

(3)

The application shall be submitted and processed concurrently with a site plan or subdivision application, as the case may be. The site plan or subdivision preliminary plat shall be prepared in a manner to allow ready comparison with the tree survey. All depictions shall be properly dimensioned, scaled and referenced to property lines, setbacks and yard areas. If known, existing and proposed site elevations and major contours shall be included.

(4)

For those applications which are not being processed concurrently with site plan or subdivision approval, the community development department shall have ten (10) working days following receipt of a completed application within which to make a determination of whether a permit shall be issued as requested. If the permit is not issued, the environmental planner shall state in writing the reasons of denial and advise the applicant of any appeal remedies available. If no action has been taken on the application within stated time, the application shall be deemed approved, and the applicant shall be entitled to issuance of the permit in accordance with the application. For good cause, the environmental planner may request an extension of an additional ten (10) working days in which to make a determination, provided the extension is requested prior to expiration of the initial ten-day period.

(5)

Any permit issued hereunder shall remain valid for a term of one (1) year and may be renewable for a second one-year period upon request to the environmental planner, provided said request occurs prior to the expiration date of the initial permit. The environmental planner may require reapplication and full review in those renewal cases where site conditions have changed substantially from the date of issuance of the initial permit as a result of natural growth of trees and vegetation, or high winds, hurricane, tornado, flooding, fire, or other act of God. If a permit required by this chapter has been issued concurrently with site plan or subdivision approval, then such permit shall run concurrently with the site plan or subdivision approval and shall be renewed together therewith.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2002-030, § 2, 11-12-02; Ord. No. 2004-041, § 2, 12-7-04; Ord. No. 2010-008, § 12, 3-23-10)

The critical root zone (CRZ) is an area around a tree that is regulated by the Indian River County Land Development Regulations for the purpose of protecting the roots and trunk of a protected tree or a specimen tree, both during and after construction. It is a circular area using a radius measured from the center of the tree. The radius is calculated as one (1) foot of radius for each one (1) inch of diameter at breast height (4.5 feet above grade). For any fraction of a foot over a whole foot, the diameter at breast height will be rounded up to the next whole number. Example: a tree has a diameter at breast height of twenty-one and one-quarter (21¼) inches; the CRZ is a circle, centered on the center of the tree, with a radius of twenty-two (22) feet.

In no event shall the CRZ be less than an area measured five (5) feet radially from the center of the tree at its base unless expressly determined by the environmental planner that a smaller specified CRZ may be established. A tree well design shall be required as appropriate in cases when the placement of fill threatens the viability of a protected tree or specimen tree to be preserved.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2002-030, § 2, 11-12-02)

It is the intent of this chapter that permits or approval required hereunder shall be in addition to and not in lieu of any federal, state, regional or other local approvals that may be required for the same or similar activities. In the event this chapter conflicts with any other regulations on this subject matter, the more restrictive shall apply, with the exception that in a municipality, the municipal ordinance shall prevail. Compliance with provisions of this chapter does not excuse any person for noncompliance with other applicable federal, state, regional or local laws.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2004-041, § 2, 12-7-04)

The provisions of Chapter 925, Open Burning/Air Curtain Incinerator Regulations, shall apply regarding the burning of debris associated with land clearing and tree removal activities, as applicable.

(Ord. No. 90-16, § 1, 9-11-90)

A variance from any of the substantive requirements of this chapter or an appeal of any administrative determination made by the environmental planner may be obtained in accordance with the procedures set forth for such relief under the land development regulations of Indian River County; however, the planning and zoning commission of Indian River County shall be the board to which all such variance requests or appeals are made.

(Ord. No. 90-16, § 1, 9-11-90)

Inasmuch as the requirements of this chapter have been determined to be of vital importance to the health, safety and well-being of the community, the desire to preserve a protected tree or specimen tree, whether mandated by this chapter or not, shall be considered prima facie a unique or special condition or circumstance peculiar to the land involved for the purpose of application for a variance from the literal requirements of land development regulations pertaining to building setbacks, parking space requirements, or minor or residential street right-of-way widths, provided adjustments are made elsewhere on the site to preserve the maximum permitted lot coverage and the total minimum number of parking spaces, and provided safety precautions are taken to offset any hazard resulting from decreased right-of-way widths.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2004-041, § 2, 12-7-04)

(1)

It shall be a violation of this chapter for any person:

(a)

To fail to obtain any permit required by this chapter, or to violate or fail to comply with the provisions of any permit issued under this chapter;

(b)

To, without a required permit, remove, destroy, or kill a protected tree(s);

(c)

To, without a required permit, remove, destroy, or kill a specimen tree(s);

(d)

To, without a required permit, perform any land clearing or grubbing;

(e)

To, with or without a permit, not properly dispose of tree removal or land clearing debris;

(f)

To not properly install and maintain tree protection barriers around each tree to be saved, or groups of trees, as described in subsection 927.05(3).

(2)

The violation described in subsection 927.17(1)(c) above shall be deemed to be irreparable and irreversible [see F.S. ch. 162.09].

(3)

Any person who commits a violation specified in paragraph (1)(a) above shall be subject to a fine of up to two hundred fifty dollars ($250.00) for each day the violation continues to exist beyond a code enforcement board established date of compliance. This fine can be in addition to any other fine and/or penalty specified by the Code of Indian River County.

(4)

Any person who commits a violation specified in paragraph (1)(b) above, except as pertaining to protected cabbage palms (Sabal palmetto), shall be subject to a fine of one thousand dollars ($1,000.00). Any person, who without a required permit removes, destroys, or kills a protected cabbage palm shall be subject to a fine of two hundred fifty dollars ($250.00). The removal, destruction, or killing of each protected tree under this chapter shall be considered a separate offense.

(5)

Any person who commits a violation specified in paragraph (1)(c) above shall be subject to a fine of up to fifteen thousand dollars ($15,000.00). The removal, destruction, or killing of each specimen tree under this chapter shall be considered a separate offense.

In determining the fines provided for in this subsection, the code enforcement board shall consider:

(a)

The gravity of the violation;

(b)

Any actions taken by the violator to correct the violation; and

(c)

Any previous violations committed by the violator.

(6)

Any person who commits a violation specified in paragraph (1)(d) above shall be subject to a fine of not less than one hundred dollars ($100.00) and not greater than fifteen thousand dollars ($15,000.00) per separate offense. The amount of the fine shall be calculated as follows [subsections (a), (b), and (c)]:

(a)

For low quality vegetation removal, a base fee of fifty cents ($0.50) per square foot of area illegally cleared land shall be charged. Low quality vegetation generally consists of plants such as dog fennel, grape vine, goose-foot grass, or non-native vegetation such as Brazilian pepper.

(b)

For high quality vegetation removal, a base fee of seventy-five cents ($0.75) per square foot of area illegally cleared land shall be charged. High quality vegetation generally consists of native vegetation such as palmettos, gallberry, or wax myrtle.

(c)

In the event that the quality of vegetation removed cannot be determined, a base fee of sixty-two and one-half cents ($0.625) per square foot of area illegally cleared land shall be charged.

(d)

In addition to the above penalty, the area that was illegally cleared or on which protected trees or specimen trees were illegally removed shall be revegetated under the following circumstances:

1.

The property on which the illegal land clearing and/or tree removal occurred is five (5) acres or larger and the area of illegal land clearing and/or tree removal was done within native uplands, as defined in section 929.05; or

2.

The area of the illegal land clearing and/or tree removal was within a conservation easement, a conservation tract, the Jungle Trail Buffer, or other similar protected area.

Under circumstance (6)(d)1. above, the area of revegetation shall be that area that would have been required to have been set aside as detailed in section 929.05. No fee-in-lieu of payment will be accepted.

Under circumstance (6)(d)2. above, the area of revegetation shall be that area where the illegal activity occurred within the conservation easement, the conservation tract, the Jungle Trail Buffer, or other similar protected area.

The area shall be revegetated with plant material that is native to Florida, consistent with surrounding plant material, and suitable for the area of revegetation. A revegetation plan must be submitted and approved by environmental planning staff. This plan shall include:

• A plan view showing the areas of revegetation, to include location of different species;

• The type, size, and spacing of the plants to be used, canopy, subcanopy, ground cover in proportion to that illegally cleared;

• A schedule for completion; and

• A maintenance plan, to include success criteria for a period of up to three (3) years after revegetation.

The purpose of the revegetation plan is to establish a native plant community to replace the plant community destroyed by the illegal activity. For the lost of mature native plant communities, only the largest plants that can reasonably be expected to survive (and can be procured) will be authorized for revegetation.

(7)

Any person who commits a violation specified in paragraph (1)(e) above shall be subject to a fine of two hundred fifty dollars ($250.00) per day starting on the sixty-first day after commencement of the tree removal or land clearing. If the date of the commencement of activities cannot be determined, the fine shall start ten (10) days after the landowner and/or agent for the landowner is notified in writing that the debris must be removed. If an extension has been granted, the fine shall commence on the day after the end of the extension.

(8)

Any person who commits a violation specified in paragraph (1)(f) above shall be subject to a fine of two hundred fifty dollars ($250.00) per day for each saved tree that does not have properly installed and maintained protective barriers installed. The fine shall commence on the date that any development activity begins on the property associated with the project and the protective barriers are either improperly installed or not installed at all. In the event that the date the development activity cannot be established, the fine shall commence on the date that Indian River County staff has verified that development activity has begun and that the protective barriers are either improperly installed or not installed at all.

(9)

Permits required by this chapter may be obtained after-the-fact upon determination by the environmental planner that such activities were performed in accordance with permit issuance criteria specified in section 927.07. The issuance of an after-the-fact permit abates the penalties described in this section for those actions or activities authorized by the after-the-fact permit. The fee for an after-the-fact permit shall be three (3) times the amount of the normal administrative fee as provided for in subsection 927.11(1)(f).

(10)

With respect to any violation of this chapter, the owner of the property on which the violation occurred is presumed to have undertaken, caused to be taken, or authorized the illegal activity. The owner may present evidence proving that the presumption is incorrect in their case.

(11)

A violation of any provision of this chapter shall be punishable upon conviction by a fine not less than five hundred dollars ($500.00), or by imprisonment in the county jail up to sixty (60) days, or both such fine and imprisonment. One (1) or all of the penalties listed above shall apply to property owners and contractors found in violation of this chapter. The destruction or alteration of each tree or plant under this chapter shall be considered a separate offense. The destruction of an historic or a specimen tree or any dune vegetation, contrary to this chapter shall receive the maximum penalty provided by law.

(12)

The county or any aggrieved party having a substantial interest in the protection provided by this chapter may apply directly to a court of competent jurisdiction for mandatory or prohibitive injunctive relief. In any enforcement proceeding, the adjudicating body may consider mitigating measures voluntarily undertaken by the alleged violator such as replacement or relocation of trees or vegetation, or other landscaping improvements, in fashioning its remedy. Such body may also require such restorative measures.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 92-11, § 22, 4-22-92; Ord. No. 2002-030, § 2, 11-12-02; Ord. No. 2004-041, § 2, 12-7-04; Ord. No. 2012-026, § 2, 7-10-12)