This ordinance shall be known and may be cited as the Town of Malabar Tree Protection and Restoration Ordinance.

(Ord. No. 03-17, § 1, 1-5-04)

Pursuant to the Constitution of the State of Florida and Chapter 163 of the Florida Statutes the Town of Malabar Town Council is vested with the authority to adopt the Town of Malabar Tree Protection and Restoration Ordinance to be administered by the Town Administrator, or his or her designee.

(Ord. No. 03-17, § 1, 1-5-04)

It is the intent of this ordinance to promote the health, safety and general welfare of the current and future residents of the Town of Malabar by establishing minimum standards for the regulation of the planting, maintenance, preservation, protection and removal of trees within the Town of Malabar. Is further intended to perpetuate adequate tree numbers and canopy in order to maintain the economic, environmental and aesthetic status of the Town. To this end, it shall be unlawful to cut down, damage, poison or in any other manner destroy or cause to be destroyed and tree, mangrove, or other vegetation as covered by the provisions of this Ordinance except in accordance with the provisions set forth herein.

(Ord. No. 03-17, § 1, 1-5-04)

A beautification trust fund is hereby established for the purpose of accruing revenues generated by the receipt of monies collected as application fees and the equivalent values as prescribed herein, and for the expenditure of such funds for the purpose of establishing beautification projects on public lands. All projects will be approved by the Town Council.

(Ord. No. 03-17, § 1, 1-5-04)

For the purpose of this article, the following terms shall have those meanings set forth herein.

a.

Bond shall mean a cashiers check payable to the Town of Malabar in an amount equal to the equivalent replacement value of the tree(s) to be removed an or relocated and given as guarantee of replacement by the applicant.

b.

Branch collar shall mean the trunk tissue that forms around the base of a branch between the main trunk and the branch.

c.

Caliper shall mean the diameter of a tree measured four and one-half (4½) feet above the ground, rounded to the nearest one-half (½) inch.

d.

Canopy shall mean the upper portion of a tree, consisting of limbs, branches and leaves.

e.

Conifer shall mean a pine tree or cone bearing seed plant.

f.

Diameter at breast height (DBH). The standard measure of a single stemmed tree at four and one-half (4½) feet above grade adjacent to tree. When a tree has grown with cluster stems at breast height, DBH shall be equal to the sum or aggregate of the individual stems measured at four and one-half (4½) feet above grade.

g.

Drip line shall mean the natural outside end of the branches of a tree or shrub projected vertically to the ground.

h.

Grubbing shall mean the removal or destruction of any living rooted shrubbery; denuding of a parcel by digging, raking, or dragging; activities which disturb the roots of such vegetation or the soil in which such roots are located in a manner which is calculated to result or likely to result, in the death, destruction or removal of such vegetation.

i.

Land clearing shall mean the removal or grubbing, by any means, of any type of vegetation from land not including, however, activities governed by tree removal or mangrove alteration permits.

j.

Mangrove. Rooted shall mean rooted trees and seedlings of the following species, but only when having a coastal or estuarine association:

i.

Red Mangrove—Rhizophora Mangle;

ii.

Black Mangrove—Avicennia Germinans;

iii.

White Mangrove—Laguncularia Racemosa;

iv.

Buttonwood or Button Mangrove—Conocarpus Erecta

k.

Protected area shall mean an area surrounding a protected, historic, or tree of special significance within which physical intrusion is prohibited in order to prevent damage to the tree, roots and soil around the tree base, the dimensions of which shall be established by the Town and set forth in the tree removal permit, in accordance with section.

l.

Protected tree shall mean all trees and all significant grouping of trees of the West Indian or Tropical origin of any size and all mangrove regardless of size; excluding, however, the following trees and plants, regardless of size or location:

i.

Australian Pine—Casuarina Cunninghamiana; Casuarina Lepidophlia; Casuarina Equisetifolia;

ii.

Ear Pod Tree—Enterolobium Cyclocarpum

iii.

China Berry—Melia Azedarach

iv.

Brazilian Pepper Tree—Schinus Terebinthifolius

v.

Melaleuca, Punk or Paper Tree—Melaleuca Leucadendron

vi.

Chinese Tallow Tree—Sapium Sebiferum

vii.

Air Potatoe—Dioscorea-bulbifera, Dioscorea alata

viii.

Kudzu Vine—Pueraria Montana

ix.

Climbing Fern—Lygodium Japonicum, Lygodium microphyllum

x.

African Bowstring Hemp—Sause Viera Hyacinthoides

xi.

Castor Bean Plant—Racinus Communis

xii.

Any species found on the Florida Exotic Pest Plant Council's list of Florida's most Invasive Species.

m.

Cabbage Palms(Sable Palmetto) and Citrus Trees of all varieties shall not be considered to be protected trees, but such trees shall be included in the tree survey in the event the applicant chooses to make use of such trees as a credit against the trees otherwise required under an applicable landscaping regulation or requirement. If so designated, these Palms and Citrus shall become protected trees under this ordinance.

n.

Protective barrier shall be made of one-inch to two-inch wide stakes spaced a minimum of five (5) to eight (8) feet and eighteen (18) inches to twenty-four (24) inches above ground with the top two-inch to four-inch marked by fluorescent orange paint or tape.

o.

Remove or removal shall mean the actual physical removal or the effect of removal through damaging, poisoning or other direct or indirect action in resulting in or likely to result in the death of a tree.

p.

Tree survey shall mean a physical on-site survey and plot of trees.

q.

Trees of special significance shall mean a tree which is determined by the Town Council to be a value to the community because of its type, size, age or other significant tree characteristics.

r.

Historic tree shall mean a tree which has been found by the Town Council to be of notable historic interest to the Town based on its age, species, size, or historic association with the Town.

(Ord. No. 03-17, § 1, 1-5-04)

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 tree on any site or tract without first obtaining a tree removal permit or mangrove alteration permit pursuant to this ordinance;

2.

Perform any land clearing or grubbing unless a land clearing permit has been issued pursuant to this ordinance;

3.

Encroach on to protected areas established pursuant to this ordinance by any of the following acts or omissions:

a.

Trenching, digging, movement or storage of any vehicle within or across a protected area;

b.

The storage of building materials, debris, fill, soil or any other matter within a protected area;

c.

The cleaning of material or equipment within a protected area;

d.

The disposal of any liquid or solid waste material such as paints, oil, solvents, asphalt, concrete, mortar, or other materials similarly harmful within a protected area; and

e.

The placement of any structure or site improvement within a protected area.

4.

Violate or fail to observe any of the requirements set forth in section 1-15.6 of this ordinance pertaining to tree and mangrove protection.

(Ord. No. 03-17, § 1, 1-5-04)

A.

Existing bona fide agricultural operations and nurseries. The intent of this ordinance is not to prohibit a reasonable expansion of an existing bona fide agricultural activity. Accordingly, an existing agricultural activity operating in the Town of Malabar with a state agricultural tax exemption together with a Town business license for a five-year duration shall be allowed to expand operations. However, the applicant for such an expansion shall first present the Town Manager or Designee with a plan as described in section 1-15.8(B)(1).

The plan shall demonstrate to the satisfaction of the Town Manager or Designee that the requested land clearing and tree removal impacts the minimum tree removal necessary to accommodate a reasonable expansion of an existing agricultural activity and that a failure to allow such tree removal would be unreasonable and would severely restrict or prohibit such reasonable expansion activity.

The Town Manager or Designee shall have authority to approve such a plan for tree removal and shall order a tree removal permit upon the applicant's compliance with the terms of this subsection.

In addition, all licensed plant and/or tree nurseries shall be exempt from the terms and provisions of this article as it may impact trees and plants growing on the premises and intended for commercial sale in the licensee's ordinary course of business.

B.

Other activities. Notwithstanding anything to the contrary in this ordinance, 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; nor shall they apply to dune vegetation. Burden of proving entitlement to any particular exemption shall lie with the person claiming use of the exemption, in the event the exempted activity ever becomes subject to an enforcement proceeding.

1.

Limited pruning (excluding mangroves). The limited pruning and trimming of any tree or other vegetation as necessary for 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 plats, site plans, or tree surveys, provided such clearing or removal is conducted under the direction of a Florida registered surveyor or engineer.

2.

Restricted landscape maintenance. Routine landscape maintenance such as trimming or pruning of vegetation which is not intended to result in the eventual death of a plant, mowing of yards or lawns, or any other landscaping or gardening activity which is commonly recognized as routine maintenance or replacement.

3.

Work by utility service. The removal, trimming, pruning or alteration of any tree or 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.

Minor alteration to preserve existing access. The removal, pruning, trimming or alteration of any tree or vegetation for the purpose of maintaining an existing access to a property with minimum necessary alteration to natural vegetation.

C.

Damaged trees. Any tree which has been destroyed or damaged beyond saving by natural cause or causes not covered by other sections of this ordinance, or which constitutes an immediate peril to life, property, or other trees, may be removed by obtaining a Type IV permit issued at no cost to the applicant.

D.

Pruning or removal of trees and foliage. Where any portion of the canopy is within thirty (30) feet of any structure located on property that may be endangered by the possibility of fire or physical damage or destruction by wind or rain, said vegetation with a six inch basil diameter or less may be pruned or removed without a permit. Trees and foliage meeting these criteria with greater than a six-inch basil diameter may be pruned or removed upon the issuance of a Type IV permit from the Town Manager or Designee. Additionally, trees or vegetation, where the canopy is greater than thirty (30) feet from any structure located on property, may be pruned without a permit or removed upon the issuance of a Type IV permit from the Town Manager or Designee if the canopy height is equal to or greater than the distance from the canopy to the structure. Non-Native trees and foliage species as well as dead trees and foliage with less than a six-inch basil diameter may be removed without permit and those with a greater than six-inch basil diameter may be removed upon the issuance of a Type IV permit from the Town Manager or Designee.

(Ord. No. 08-08, § 1, 10-20-08; Ord. No. 2021-19, § 1, 9-27-21)

A.

Permits available. The following permits with stated limitations shall be available upon proper application to the Town Manager or Designee and compliance with this ordinance.

1.

Tree removal permit: A tree removal permit shall not authorize the destruction of a mangrove unless criteria governing mangrove alteration is satisfied.

2.

Land clearing permit: A land clearing permit does not authorize the removal or destruction of protected trees, nor does it authorize any alteration to a mangrove.

3.

Mangrove alteration permit: No mangrove shall be altered unless the Town Manager or Designee has issued appropriate permits based on a determination that all criteria governing both tree removal and mangrove alteration permits have been satisfied.

B.

Criteria for issuing permits. The following criteria shall be satisfied prior to issuance of a tree removal, mangrove alteration, or land clearing permit, respectively.

1.

Criteria for issuing a land clearing or tree removal permit. In determining whether or not a permit required by this ordinance should be issued, the Town Manager or Designee shall consider the following criteria:

a.

The condition of the tree with respect to disease, insect attack, danger of falling, proximity to existing or proposed structures and interference with utilities services;

b.

The necessity of removing a tree to construct proposed improvements in order to allow reasonable economic use of the property;

c.

The topography of the land where the tree is located and the effect removal of the same would have on: erosion, soil moisture retention, increased or decreased flow or diversion in the flow of surface waters, and impact on overall surface water, management;

d.

The number and density of trees existing on site;

e.

The relative significance or uniqueness of the tree as a historic or specimen tree;

f.

Impact on the natural environment, including: ground and surface water stabilization, water quality and aquifer recharge, ecological impacts, noise buffer, air quality, and wild life habitat;

g.

The ease with which the applicant can alter or revise the proposed development or improvement in order to accommodate existing mangrove or trees; and

h.

The economic hardship which would be imposed upon the applicant should the permit not be granted.

2.

Criteria for issuing a mangrove alteration permit. In determining whether or not to issue a permit, as required by this ordinance to alter a mangrove, the Town Manager or Designee shall consider not only tree removal criteria of subparagraph B(1) of this section, but shall also consider the following criteria and incorporate them as conditions of the permit if issued. A violation of any of these provisions shall be deemed to be unlawful and subject to all penalties provided for herein.

a.

At least fifty (50) percent of the original canopy of any mangrove trees shall be continuously retained.

b.

White mangroves and buttonwood shall not be trimmed at all at a distance less than two (2) feet above the natural ground elevation. All resultant sprout re-growth shall be allowed to attain a height of a minimum of three (3) feet above natural ground elevation.

c.

On red mangroves, no prop roots shall be damaged, removed or buried by fill or other means.

d.

Red mangroves may be hedged down to a minimum height of six (6) feet, providing the limitations in subparagraphs a. and g. above [sic] are not exceeded.

e.

On a black mangrove of ten (10) feet or less in height there shall be no cutting or trimming below the lowest two (2) living lateral limbs, unless a significant canopy area is left at the top of the tree. Further, no pneumatophores shall be damaged or removed nor shall they be buried by fill or other means.

f.

No large mangrove cuttings shall be discarded into any estuary, marsh, river, or adjacent water course.

g.

Pruning, removal and relocation of mangroves shall be prohibited between December 1 ^st and February 15 ^th .

h.

All cuts shall be made cleanly and at the base of the branch or limb cut, except when done with respect to the shaping of a hedge.

i.

A mangrove alteration permit shall not authorize removal of any mangrove unless the applicant replaces or relocates that number of mangroves necessary to revegetate an area approximately equal to the area destroyed, on the same development site. The applicant must provide an affirmative program satisfactory to the Town Manager or Designee to assure survival of the replaced or relocated mangroves and to stabilize the shoreline from which mangroves were removed. The approved program shall be considered an express condition of the permit.

j.

Notwithstanding the criteria of subparagraph B(2) of this section, the property owner/applicant may elect a replanting and hedging program, under direction and control of the Town Manager or Designee, and under which replacement juvenile red mangroves may be hedged several times each year and maintained at a height after periodic hedging of three (3) feet. A mandatory and integral part of this program is that hedged material (clippings) shall be left atop the hedged mangroves until leaf drop from the hedged material (clippings) has occurred. The dropped leaves shall then become part of the estuary food chain.

3.

Criteria for issuing a land clearing permit. In determining whether or not to issue a permit to clear or grub land as required by this ordinance, the Town Manager or Designee shall consider whether the applicant has or is complying with all tree and land clearing provisions of this ordinance and shall base a decision regarding issuance of a permit on the following criteria:

a.

The minimum necessary vegetation removal on the property for purposes of land surveying or land preparation for development or other economic uses;

b.

Whether visual access is necessary to comply with tree survey requirements;

c.

Whether the applicant has provided protective barriers around all protected trees on the site or will utilize light machinery, which does not penetrate or severely compact the soil, for clearing understory vegetation in protected areas;

d.

The impact upon natural and man-made systems including erosion and surface water management and other impacts identified in section 1-15.8. To this end the applicant shall provide a reasonable written plan for controlling erosion which may be expected to occur as a result of the proposed clearing or grubbing. The plan shall incorporate some or all of the following measures necessary to achieve soil stabilization, prevent erosion, and promote efficient surface water management, including: 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 express conditions of the land clearing permit issued and a violation of any of the conditions or provisions of the plan shall be considered a violation of this ordinance, and subject to all enforcement provisions. The Town Manager or Designee may require 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.

4.

The Town Manager or designee shall consider accessibility to the property and may require a culvert for property access, whether temporary or permanent, prior to the issuance of any permit type in this section.

C.

Tree removal, mangrove alteration, and land clearing permit determinations. The Town Manager or Designee shall only issue a tree removal, mangrove alteration or land clearing permit upon a finding that all applicable requirements of this ordinance have been satisfied including criteria for issuance as set forth in section 1-15.8(B) as well as provisions governing required replacements in section 1-15.8(D). Notwithstanding, no permit shall be granted if the Town Manager or Designee determines that any one of the following conditions exists:

1.

Ability to reasonably shift location of proposed improvements. That the applicant can reasonably shift the location of the structure, building or improvement which he wishes to construct on the site, while maintaining the existence of the subject trees or mangroves and still permitting the construction of such building or improvement on the site;

2.

Ability to reasonably modify design concept. That the applicant can reasonably modify the design of a structure, building or other proposed improvement while maintaining the existence of the trees or mangroves proposed to be removed and still permit construction of a substantially similar building on the site; or

3.

Land clearing or removal generates substantial adverse impact. That the land clearing or the removal of the subject trees or mangroves will have a substantial adverse impact on the urban and natural environment.

D.

Required replacement or relocation of trees. All trees that are removed or destroyed shall be replaced by a species of protected trees to be approved by the Town Council and to be kept on file in the Office of the Town Clerk. The cost of replacing trees shall be incurred by the applicant/developer. The specifications regulating the replacement of trees are cited below:

1.

Characteristics of replacement trees. The replacement tree(s) shall have at least equal shade potential screening properties; and/or other characteristics comparable to that of the trees(s) requested to be removed.

2.

Size of replacement trees. Replacement tree(s) are to be made according to a standard of one (1) inch diameter at breast height (DBH) total replacement for each one (1) inch DBH removed, unless otherwise agreed upon by both the Town Manager or Designee and applicant. Any number of trees may be utilized to meet the inch-for-inch requirement provided acceptable spacings and design are maintained.

3.

Tree species. Relocated or replacement trees shall include only species defined as protected trees under this ordinance.

4.

Minimum standards for replacement trees. All replacement tree(s) must have a minimum overall planted height of eight (8) feet at the time of planting and a Florida Department of Agriculture Nursery Grade Standard (quality) of No. 1 or better.

5.

Transplanting and maintenance requirements. All trees transplanted pursuant to this ordinance shall be maintained in a healthy, living condition. Any such trees which die shall be replaced by the applicant. The Town Manager or Designee shall retain jurisdiction to insure compliance with this section.

6.

Waivers of replacement tree(s) specifications. The Town Manager or Designee may waive the size or minimum standards specifications if the applicant can demonstrate that the current market conditions are such that replacement tree(s) meeting these specifications are not readily available. Similarly the number of required replacements may be waived by the Town Manager or Designee if the Town Manager or Designee determines that the remaining number of trees to be preserved on site are of sufficient number and quality to substantially comply with the purpose and intent of the tree protection ordinance. Substitute tree(s) allowed under this waiver provision must have the approval of the Town Manager or Designee.

(Ord. No. 03-17, § 1, 1-5-04; Ord. No. 2021-19, §§ 1—4, 9-27-21)

Each applicant for a permit, as set forth below, shall conform with the procedures that are applicable to that particular type of permit:

A.

Type I permit. Type I permits shall be required for the removal of trees five (5) inches dbh and larger in conjunction with any development plan required by the Land Development Code.

1.

Submittal: Projects which require a Type I permit shall submit the following to the Town Manager or designee, concurrent with the submittal of a development plan as required by the Land Development Code:

a.

Tree location survey identifying tree(s) ten (10) inches dbh and larger and all trees two (2) inches dbh and larger.

b.

Tree plan prepared or approved by a registered landscape architect as authorized by F.S. ch. 481, as amended, or other type pf professional as approved by the Town Administrator or his designee.

2.

Review and determination process: The review and determination process shall be concurrent with the applicable development plan process.

B.

Type II permit. Type II permits shall be required for the removal of trees five (5) inches dbh and larger in conjunction with issuance of any right-of-way use or any driveway connection permit pursuant of the Land Development Code.

1.

Submittal: Projects which require a Type II permit shall submit the following to the Town Manager or designee, concurrent with the submittal of a right-of-way use or driveway connection permit application:

a.

A sketch identifying the location and general description of tree(s) five (5) inches dbh and larger. For projects larger than one single-family dwelling, a Tree Location Survey identifying tree(s) five (5) inches dbh and larger shall be submitted.

2.

Review and determination process: The review and determination process shall be concurrent with the review process.

C.

Type III permit. Type III permits shall be required for the removal of any tree five (5) inches dbh and larger in conjunction with the application and issuance of a building permit that was not, as a part of a related development permit, reviewed for tree removal and/or replacement.

1.

Submittal: Projects that require a Type III permit shall submit the following to the Town Manager or designee, concurrent with the submittal of a building permit application:

a.

A sketch showing location and a general description of tree(s) five (5) inches dbh and larger.

2.

Review and determination process: The review and determination process shall be concurrent with the review of the building permit application. Reasonable effort shall be made to minimize tree removal such as design modification and requests for variances, e.g., variances in lot width or set back requirements, where the tree proposed for removal is ten (10) inches dbh and larger. After reasonable effort is made to minimize tree removal and the location of the tree prohibits the use of the site for the intended and desired purpose, a tree removal permit may be granted.

D.

Type IV permit. Type IV permits shall be required for the removal of any tree where a Type I, II, or III permit is not required and the tree is ten (10) inches dbh and larger (five (5) inches dbh and larger for non-single family).

1.

Submittal: Tree removal requiring a Type IV permit shall submit two copies of the following to the Town Manager or designee:

a.

Permit application demonstrating compliance with one (1) or more of the criteria below.

b.

A sketch showing location and a general description of tree(s) ten (10) inches dbh and larger (five (5) inches dbh and larger for non-single family).

c.

Tree plan if applicable.

2.

Review and determination process: The tree removal permit shall only be granted where at least one of the following criteria is met:

a.

Use. Reasonable effort has been made to minimize tree removal such as design modification and requests for variances, e.g., variances in lot width or set back requirements, where the tree(s) proposed for removal is ten (10) inches dbh and larger, however, the location of the tree(s) prohibits the use of the site for the intended and desired purpose.

b.

Proximity to structures. The tree or its root system is determined to be detrimental to the integrity of the structure's foundation.

c.

Thinning. The removal of such tree is beneficial to the enhanced growth of other trees on site.

d.

A type VI permit is required for the removal of any designated tree of special significance or emergency tree removal as defines in Section 1-15.14.

E.

Type V permits. Type V permits shall be required for any use of a motorized and or rotary equipment method to remove underbrush and vegetation less than six (6) feet in height, and not defined as a tree, for the propose of unimproved property maintenance as required in the Town's code of ordinance of nuisance vegetation and or firebreak protection of property in conjunction with any development plan required by the Land Development Code

1.

Submittal: Tree removal requiring a Type V permit shall submit two copies of the following to the Town Manager or designee:

a.

Survey of the property. Permit application demonstrating compliance with one (1) or more of the criteria below.

b.

A sketch showing location and a general description of removal of underbrush and vegetation less than six (6) feet in height. This permit does not permit the removal of any trees.

2.

Review and determination process: The permit shall only be granted where at least one of the following criteria is met:

a.

Use. Reasonable effort has been made to minimize the impact of root and soil sediment and the topology of the property for the purpose of clearing nuisance and overgrown vegetation to maintain or gain access for development activities, reduce a nuisance to abutting property owners and rights-of way, or reduce fire hazards for the protection of life and property.

(Ord. No. 03-17, § 1, 1-5-04; Ord. No. 2021-19, § 5, 9-27-21)

A.

Required application. Application for issuance of any permit required by this ordinance shall be made in writing to the Town Manager or Designee on a form provided by the Town. The form shall request all information necessary to evaluate a particular application including, but not limited to:

1.

Statement as to the applicant's interest in the property and reasonable proof of ownership.

2.

Legal description of the property and a boundary survey or accurate scaled drawing thereof:

3.

A tree survey indicating all trees and including those trees that are intended for removal, relocation, or alteration in any way and those which will be left undisturbed. A written explanation shall be included with the tree survey which identifies those criteria in section 1-15.8 of this ordinance which justify issuance of the requested permit.

4.

If land clearing is intended, an erosion control plan as described in section 1-15.8(B)(3), together with reasons for clearing or grubbing of the site.

5.

The application shall be submitted and processed concurrently with site plan review or subdivision approval, as the case may be, when such approvals are otherwise required to make use of the property. The site plan or subdivision preliminary plat shall be prepared in a manner to allow ready comparison with the tree survey, to assess whether the cited criteria have been met. All items shown shall be properly dimensioned, scaled and referenced to the property lines, easements, and setback or yard requirements. If known, existing and proposed site elevations and major contours shall be included:

6.

An administrative fee to offset the cost of evaluating the application shall be collected in an amount determined by resolution of the Town Council and a copy of the Florida Tree Protection Manual for builders and developers will be issued to each applicant for use as a guide to development.

B.

Building official's authority to inspect. The filing of an application shall be deemed to extend permission to the Town Manager or Designee to inspect the subject property if necessary for purpose of evaluating the application.

C.

Permit expiration. Any permit issued hereunder shall remain valid for a term of six (6) months and may be renewal for a second six-month period upon request to the Town Manager or Designee. The Town Manager or Designee 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 ordinance 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. 03-17, § 1, 1-5-04; Ord. No. 2021-19, § 1, 9-27-21)

A.

For the purposes of Type I and II permits, prior to the clearing or grubbing of land, or the removal of any tree, the applicant shall clearly mark all tree(s) for which tree(s) removal permit(s) are granted and shall erect barriers around the tree(s) to be retained on site so as to create a protected zone.

1.

The protected zone shall extend from the tree trunk in all directions a minimum of two-thirds (⅔) of that tree's drip line.

2.

Barriers of a minimum of three (3) feet in height shall be erected outside the protected zone to prevent encroachment. Barriers shall remain in place and be in good condition throughout all development and building activity.

3.

For large property areas containing stands of trees to be retained that are separated from grubbing, clearing, and construction, in lieu of placing barriers as described above, may be partitioned off by placing the barriers around the perimeter of the stand area on the sides where grubbing, clearing or construction, etc., is occurring as long as an equivalent protected zone is established.

4.

The applicant, owner, developer, builder or agent shall not cause or permit the movement of equipment or the storage of equipment, material, and debris or fill to be placed within the protected zone. No excavation shall occur within the protected zone and there shall be no cleaning of equipment or material or the storage or disposal of waste materials such as paints, petroleum products, oils, solvents, asphalts, concrete, mortar, or any other material within the protected zone. There shall be no fire or burning within thirty (30) feet of the protected zone.

5.

Protective barriers may be removed for the final grading. Removal of vegetation or any landscaping activities within the barrier area shall be accomplished by mowing or hand clearing. If landscaping is to be located within the protected zone, clearing by light rubber-wheeled machinery only in the area and to the extent necessary shall be allowed.

(Ord. No. 03-17, § 1, 1-5-04)

A.

Designation. Trees of special significance are those trees or grouping of trees designated as such by a resolution of the Town Council. Designations can only be initiated by the property owner(s) of such tree(s) or on Town owned property by Town staff. After initiated, designation shall be reviewed by Town staff and those trees meeting the requirements of this section shall be presented to the Town Council who shall decide whether to designate a tree(s) as a tree of special significance. Trees designated as trees of special significance shall have a preservation easement, prepared by the owner(s) of the tree(s), created around them extending a minimum of fifteen (15) feet in all directions from the trunk and such preservation easement shall be recorded, by the owner(s) of the tree(s), in the public records of the Town of Malabar. Trees may be so designated if one of the following criteria applies:

1.

It is a historic tree, which is a tree of notable historical interest and value to the Town because of its location or historical association with the community.

2.

It is a specimen or grand tree, which is a tree of high value to the community because of its type, size, age, exceptional characteristics or other relevant criteria. See Schedule A and B.

3.

It is a champion tree, which is a tree that has been identified by the Florida Division of Forestry as being the largest of its species within the State of Florida or by the American Forestry Association as being the largest of its species in the United States or the world.

B.

Protection. A variance of the required minimum front, rear, and side yard setbacks may be granted to allow the preservation of trees of special significance. Topping of trees of special significance shall be subject to all penalties and fines as provided by this ordinance. The removal of any designated tree of special significance requires; a Type IV permit; a site inspection and written evaluation by a certified arborist demonstrating that removal is deemed necessary to avoid an immediate peril to life and/or the condition of the tree warrants removal; removal is approved by the Town Council; and the replacement shall be as determined by the Town Council.

Schedule A
Species and Minimum Points Needed to be a Grand Tree

Schedule B
Measurements

(Ord. No. 03-17, § 1, 1-5-04)

In so much as the requirements of this ordinance 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, whether mandated by this ordinance or not, shall be considered prima fascia 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 a Land Development Ordinance, or Regulation pertaining to building setbacks, parking space requirements or road right-of-way widths, provided adjustments are made elsewhere on 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 hazards resulting from the trees to right-of-way widths.

Such variance requests shall be made in accordance with the procedures in section 1-12.2.

(Ord. No. 03-17, § 1, 1-5-04)

When it is necessary to expedite the removal of damaged or destroyed trees in the interest of public safety, health and general welfare following high winds, storms, hurricanes, tornadoes, floods, freezes, fires or other man-made or natural disasters, Town Manager or Designee may issue a type IV permit for the removal of such damaged tree and the applicant shall not be required to pay a permit fee.

(Ord. No. 03-17, § 1, 1-5-04; Ord. No. 2021-19, § 1, 9-27-21)

Penalties for violations of this article, including conditions of any permit issued hereunder, shall include a fine of up to five hundred dollars ($500.00) per tree illegally removed. In addition, any violation of this article, or any permit issued hereunder, shall also be punishable by a fine of not to exceed five hundred dollars ($500.00) or by imprisonment in the county jail not to exceed sixty (60) days or both such fine and imprisonment. Each unauthorized removal of a tree protected by this article shall be deemed a separate offense.

Any person violating the provisions of this article XV is subject to the jurisdiction of the special hearing master and in any enforcement proceeding, the special hearing master 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. The special hearing master, in addition to the fine imposed herein shall also have the authority to require restorative measures he or she deems necessary. Such restorative measures include, but are not limited to the following:

A.

The replanting of a tree twice the size of one illegally removed of the same type;

B.

By replanting the same type trees with five-inch dbh or greater in a sufficient number such that the total number of dbh inches of the replanted trees equals twice the total number of dbh inches of trees removed without authorization;

C.

The payment of a mitigation fee of two hundred dollars ($200.00) per diameter inch of the trees removed without authorization to the beautification trust fund.

(Ord. No. 03-17, § 1, 1-5-04)

Except for decisions of the Board of Adjustments, any person aggrieved by the Administration or interpretation of any of the terms or provisions of this article may appeal to the Town Council, 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 they make such an order, requirement, decision or determination as ought to be made, and to that end shall have the powers of the Administrator from whom the appeal is taken. This provision does not confer upon the Town Council any appellate jurisdiction over a determination of the Special Hearing Master or Board of Adjustments.

(Ord. No. 03-17, § 1, 1-5-04)