Flagler County government is belatedly moving toward adopting a tree ordinance that would significantly increase tree-protection measures, either by reducing the number of trees cut, by increasing replanting requirements, or by establishing a tree fund that will be a form of replacement bank developers may pay into, to compensate for the trees destroyed on a development site.
The county moved toward a more effective tree ordinance at the urging of Andy Dance, the current County Commission chair and a landscape architect, after county officials learned through public hearings–when it was too late–that stately oak trees on the 612 acres of the future 1,200-home Radiance development on Old Kings Road (formerly known as Eagle Lakes) had no protection from being torn down. No tree survey had been done. None had been required.
“And here we are at PUD approval,” Dance said at the time, referring th Radiance’s Planned Unit Development application more than two years ago. “Once it gets past this stage, we don’t have anything to hold them accountable.”
As a result, Dance proposed to his colleagues on the County Commission that the county should rework its tree ordinance, even if only as a stop-gap measure: the county is also rewriting its comprehensive plan and its land development code, all of which will have bearing on tree policy.
The ordinance has since been drafted. “When a subdivision is coming in to design a new neighborhood,” Assistant County Attorney Sean Moylan said, “when this is in place, they have to take into account the existing natural resources on the land and try to in incorporate that into their design, instead of just imposing their development on the landscape. If they have, for instance, a nice stand of large trees, well, they might want to leave that area alone, and design around it. That’ll be codified once this is adopted.”
The Flagler County Planning Board on Tuesday recommended approval of the ordinance when it goes before the County Commission for a first reading next Monday, even though Adam Mengel, the county’s planning director, said the proposal is incomplete.
“I’m not going to tell you that it won’t yet change more,” Mengel said. “I think this is a bit of a work in progress,” especially as the Land Development Code is rewritten. The timing irked Mengel. “As part of an overall in development code update, we may take a totally different approach, on on format, on structure, the bones may may still yet be the same, but I do think we’ll revisit this.”
The ordinance:
- Requires developers to conduct a tree survey before construction.
- Encourages developers to craft site plans that take mature trees into account.
- Conditions final plat approval on proof that all required tree replacements have been accomplished.
- Redefines so-called “indexed trees”–hardwoods with diameters of more than 6 inches, specimen trees larger than 18 inches, historic trees larger than 36 inches–as protected trees. They’re still not immune from destruction. But if they are destroyed or uprooted, they must be replaced, replanted or the county must be compensated through a tree fund.
- Establishes a tree fund.
- Increases tree-replacement ratios while exempting trees within the immediate footprint of single family home footprints from having to be replaced.
- Provides for variances, or allowances, to diverge from the ordinance, with regulatory review.
“The county has been a little tardy in addressing it,” Dance said, but he’s been pleased with the pragmatic approach. “There is flexibility built in for some mitigation, so if trees come out there’s a process for mitigating those removals and replanting, and part of the new code is: if you can’t replant on the site, there’s a tree fund very similar to Palm Coast to where you can pay into the tree fund, and those funds can be used for tree protection or tree planting by the county.”
The tree fund would be based on the wholesale value of the trees. The county would plant the trees on county property, though there’s only so many trees it could fit on public. “So there may be something then that if we have the historic trees, the specimen trees that are present on a property,” Mengel said, “rather than going and buying the property as we had with Old Moody homestead, and taking it off the tax roll, putting it on the government side, we may have a less-than-fee acquisition. We may have effectively a tree easement. I’m calling it that. Some kind of conservation easement that would be placed there, to place that tree, or trees, maybe a grove of trees ideally into some kind of permanent easement.” The county would use money from the tree fund to buy the tree easement.
If trees were to die, the owner might have the ability to buy back the easement, Mengel said, though when he was floating that possibility, it had not been written into the ordinance.
The designation for heritage trees–the most valued trees–is at the discretion of the County Commission, and at the request of land owners, which was absurd: “Imagine that scenario as a landowner,” Mengel said. “You’re going to somebody saying, Hi, I want you to put a restriction on my land.” That works when a landowner is attempting to woo the county to buy the land and add it to its inventory of environmentally sensitive lands for protection. It does not work in the overwhelming majority of cases when landowners or developers are building on land and razing trees. “It’s odd that right now, the only way that we have that designation is through the designation by the board itself,” Mengel said.
Michael Goodman, a planning board member, cited the example of a church in the Hammock that cut down five oak trees and put a prefabricated building in their place. “Something there doesn’t make sense to me,” he said. “We have to be able to make it economically not viable for them to be destroying trees in that manner.”
The proposed ordinance would give the county the authority to look at certain trees and designate them as more valuable than others. “It would still not mean that you couldn’t cut it down. But if you cut it down, you removed it, you would have an above and beyond requirement for your replacement,” Mengel said. “It’s intended to discourage you, or maybe say it a different way: to encourage you to preserve that tree on the property.”
The proposed ordinance received comments from builders, developers and their representatives, interests Mengel described as ” a handful of folks that we see kind of routinely in our chambers.” But it is almost certain to get more vetting by the same special interests before the County Commission.
As for the old oak trees at the Radiance development, they’re still there, if only because the developer has not yet submitted a site plan for the property. If enacted, the proposed ordinance cannot be retroactive. So it will not apply to Radiance, leaving the developer free to cut down the oaks. But the developer is just as free to approach the design of the project with the new ordinance in mind.
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