Loading...
HomeMy WebLinkAbout1983-41 (2)INDIAN RIVER COUNTY ORDINANCE NO. 83-41 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, RELATING TO THE PROTECTION OF TREES, MANGROVES, AND DUNE VEGETATION WITHIN INDIAN RIVER COUNTY; PROVIDING A SHORT TITLE; AUTHORITY FOR ENACTMENT; APPLICABILITY; LEGISLATIVE INTENT; DEFINITIONS; GENERAL PROHIBITIONS; EXEMPTIONS; DESIGNATING PERMITS AVAILABLE AND CRITERIA GOVERNING THEIR ISSUANCE; ADDITIONAL MANGROVE PROTECTION; ADDITIONAL DUNE AND SHORELINE VEGETATION PROTECTION; APPLICATION PROCEDURE AND FEES; DETERMINATION OF PROTECTED AREA; RECOGNIZING OTHER AGENCY'S JURISDICTION; PROVIDING VARIANCE PROCEDURES; PROVIDING FOR PENALTIES AND ENFORCEMENT WITH CODE ENFORCEMENT BOARD JURISDICTION; CODIFICATION; REPEAL OF CONFLICTING LAWS; SEVERABILITY; AND EFFECTIVE DATE. WHEREAS, trees are an essential link in the conditioning of our environment for human life through the production of oxygen, transfer of water, precipitation of airborne pollutants, and conversion of carbon dioxide; and WHEREAS, root systems of trees help stabilize the groundwater table, neutralize wastewater and play an important and effective role in County -wide soil conservation and erosion control; and WHEREAS, trees add an invaluable physical and psycho- logical addition to the County, making life more comfortable by providing shade and cooling the air and land, reducing noise levels and glare, and breaking the monotony of man's developments on the land; and WHEREAS, trees have diminished in great quantities through man's development activities in recent years; and WHEREAS, of those trees worthy of protection mangroves deserve special attention; and WHEREAS, mangrove trees stabilize shorelines and substrates hindering erosion caused by the effects of storm and boat wakes, protecting upland populations from flooding and wave action, serving as hurricane buffers, and are vital to the necessary estuarian system; and WHEREAS, mangrove leaf litter provides raw material for the production of usable nutrients for consumption by juvenile forms of marine animals, thus establishing an essential link in -1- the aquatic food chain; and WHEREAS, mangrove areas are primary nursery and feeding areas for fish and shellfish of commercial and sport value, as s well as nesting, roosting and feeding areas for native and migra- tory birds and other wildlife; and WHEREAS, in filtering and absorbing upland runoff and silt, mangroves serve the function of effectively purifying the water of harmful nutrients and heavy materials; and WHEREAS, certain natural dune vegetations on the primary and secondary dunes are invaluable in the prevention of beach and shore erosion; and WHEREAS, the Conservation and Coastal Zone Management element of the County's Comprehensive Plan requires the County to enact a native plant community, tree protection, and land clearing ordinance in order to preserve native flora and fauna and to further protect the social, economic, and environmental attributes of the coastal system; and WHEREAS, the protection of most species of trees, and especially mangrove and dune vegetation within Indian River County, is not only consistent with the Comprehensive Plan, but is essential to the present and future health, safety and welfare of all citizens of Indian River County. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA that: SECTION 1 SHORT TITLE This ordinance and the provisions contained herein shall be known as the Indian River County Tree Protection Ordinance. SECTION 2 AUTHORITY FOR ENACTMENT This ordinance is enacted pursuant to authority vested in the Board of County Commissioners by virtue of Article 8 Section 1 (f) of the Constitution of the State of Florida, and Sections 125.01 (j) (t) (w), and Section 163.3161 et seq of Florida Statutes (1982). CPAM SECTION 3 APPLICABILITY This ordinance shall be applicable to all land lying in the unincorporated area of Indian River County, Florida. SECTION 4 LEGISLATIVE INTENT The purpose of this ordinance is to provide for the pro- tection and preservation of trees and vegetation within Indian River County in order to minimize environmental degradation caused by unnecessary or excessive destruction of trees and other valu- able vegetation. SECTION 5 DEFINITIONS a) Buildable Area, Gross. That portion of a parcel of property intended to be developed or site planned as a single lot, tract, or building site, exclusive of any setback or yard area required by any applicable land development regulation; that is all of the area upon which a building, or other structure governed by setback limitations, could be erected by right and without respect to any possible or desired variance, and without respect to other limiting factors such as maximum lot coverage or minimum open space requirements. b) Buildable Area Net. The gross buildable area as decreased by maximum lot coverage limits contained in any appli- cable land development regulation. C) Diameter at breast height (DBH). The standard measure of a single -stemmed tree at four and one-half (4-1/2) feet above grade. When a tree has grown with cluster stems at breast height, DBH shall be equal to the sum or aggregate of the individ- ual stems measured at four and one-half (4-1/2) feet above grade. d) Environmental Planner. The individual employed by Indian River County who is responsible for the administration of the provisions of this ordinance and prosecution of any violations thereof. The Environmental Planner shall hold a bachelor's degree from an accredited university or college in either landscape 0910 architecture, horticulture, forestry, or botany, and have at least three (3) years of significant work related experience in a land development or construction industry, or environmental regulation setting with direct interface with the land development or construction industry. Alternatively, the Environmental Planner may have a bachelor's degree in urban planning from an accredited college or university with at least three (3) years significant work related experience in the landscaping, horticulture, forestry, or environmental protection setting, provided such experience involved direct contact or interface with the land development or construction industries. e) Grubbing. The removal or destruction of any living rooted shrubbery; the 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, destruc- tion or removal of such vegetation. f) Historic tree. A tree which has been determined to be of notable historic interest and value to Indian River County because of its location, or historic association, with the community, and which has been so designated by the County Commission in the Official Record Books of the County following a public hearing with due notice provided in advance by certified mail to the owner. g) Land clearing. 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. h) Mangrove. Rooted trees and seedlings of the follow- ing species, but only when having a coastal or estuarine association: Red mangrove - Rhizophora mangle; Black mangrove - Avicennia germinans; White mangrove - Laguncularia racemosa; Buttonwood or Button - mangrove - Conocarpus erecta -4- i) Person. Any individual, firm, corporation, partner- ship, joint venture, association, principal, trustee, municipal corporation, political subdivision, or special district, or any agent or representative thereof. j) Protected Area. An area surrounding a protected, historic, or specimen tree 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 Environmental Planner and set forth in the tree removal permit, in accordance with Section 12. k) Protected tree. Any tree having a DBH of eight (8) inches or more, all specimen and historic trees, and all signifi- cant groupings of trees of the West Indian or tropical origin of any size, and all mangroves regardless of size; excluding, however, the following trees, regardless of size or location: Casuarina cunninghamiana - Australian pine Casuarina leeidophloia - Australian pine Casuarina equisetifolia - Australian pine Enterolobium cyclocarpum - Ear -pod tree Melia azedarach - Chinaberry Schinus terebinthifolius - Brazilian pepper tree Melaleucaguinguenervia - Melaleuca, punk or paper tree Cabbage palms (Sabel 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 said such trees as a credit against the trees otherwise required under an applicable landscaping regulation or requirement. 1) Protective barrier. Any structure, device, or visual barrier which effectively identifies the parameters of the protected area. m) Remove or removal. The actual physical removal or the effective removal through damaging, poisoning or other direct or indirect action resulting in or likely to result in the death of a plant. -5- n) Specimen tree. A tree which has been determined by the County Commission, following input- from the Environmental Planner, to be of high value because of its type, size, age, or other relevant criteria, and has been so designated by the County Commission in the Official Record Books following a public hearing with due notice by certified mail to the owner. o) Tree. A woody plant having a well defined stem, a more or less well defined crown, and which is capable of attaining a height of at least eight (8) feet with a trunk diameter of not less than two (2) inches, or a cluster of main stems having an aggregate diameter of not less than two (2) inches, at a point four and one-half (4-1/2) feet above ground. p) Tree survey. An aerial photcgraph or sketch prepared to a scale no smaller than one (1) inch to two hundred (200) feet which provides the location, size and common name of all protected trees located on a given parcel of land intended for development or site planning as a single lot, tract, or building site. The tree survey need not encompass contiguous property of the applicant which is not to be included within the actual limits of the area subject to development consideration. SECTION 6 GENERAL PROHIBITIONS 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: a) remove, relocate, destroy or damage, any protected tree on any site or tract without first obtaining a tree removal permit or mangrove alteration permit pursuant to this ordinance; b) perform any land clearing or grubbing unless a land clearing permit has been issued pursuant to this ordinance; c) perform tree removal, land clearing, grubbing, grad- ing, 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 to be preserved pursuant to this ordinance has been marked by a highly visible band and unless all protected areas established Q:fl .•, pursuant tolthis ordinance have been surrounded by a protective barrier; d) encroach onto protected areas established pursuant to this ordinance by any of the following acts or omissions; (1) movement or storage of any vehicle within or across a protected area; (2) the storage of building materials, debris, fill, soil or any other matter within a protected area; (3) the cleaning of material or equipment within a pro- tected area; (4) 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 (5) the placement of any structure or site improvement within a protected area with the exception of landscaping or related irrigation improvements. e) violate or fail to observe any of the requirements set forth in Section 8 of this ordinance pertaining to mangrove protection; f) violate or fail to observe any of the requirements or provisions set forth in Section 9 of this ordinance pertaining to the protection of dune and shoreline vegetation. SECTION 7 EXEMPTIONS Notwithstanding anything to the contrary in this ordi- nance, the following activities shall be lawful without applica- tion for or issuance of a tree removal or land clearing permit. None of these exemptions shall apply to any mangrove, dune vegetation, specimen or historic tree, unless otherwise stated below. The 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. A. 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 -7- 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 i of a Florida registered surveyor or engineer. B. Routine landscape maintenance such as trimming or pruning of vegetation which is not intended to result in the eventual death of the plant, mowing of yards or lawns, or any other landscaping or gardening activity which is commonly recog- nized as routine maintenance or replacement. This exemption shall be construed to allow routine maintenance of dune vegtation grow- ing seaward of the Coastal Construction Control Line, provided the person owning such property, or his agent, first provides suffi- cient documentation evidencing express permission for such activity from the Bureau of Beaches and Shores of the Department of Natural Resources of the State of Florida. C. 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 opera- ting utility company and said company has received all necessary licenses or permits to provide utility service within the ease- ment. D. The removal, pruning, trimming or alteration of any tree or vegetation for the purpose of maintaining existing access to a property. E. Any activity conducted by a lawfully operating and bona fide commercial nursery, tree farm, agricultural operation, ranch, or similar operation, when the activity occurs on prop- erty 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 exemp- tion based upon the use of the property for an agricultural opera- tion, no land development order shall be approved for any non-agricultural use or improvement on the same site within two (2) years of the completion of such land clearing or tree -8- removal. F. Any tree which has been destroyed or damaged beyond saving, or which constitutes an immediate peril to life, property, or other trees, may be removed without a permit. G. Tree removal, land clearing, or grubbing of any vegetation, except mangrove or dune vegetation, upon any detached single family residential lot or parcel of land having an area of 1.0 acres or less; provided, this exemption shall not be construed to allow land clearing, grubbing, or tree removal without permit of 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 liSt;nn 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. SECTION 8 PERMITS AVAILABLE; CRITERIA GOVERNING ISSUANCE A. The following permits shall be available upon proper application to the Community Development Division and compliance with this ordinance: tree removal permit; land clearing permit; and mangrove alternation permit. B. Criteria Governing Issuance. 1) Tree Removal Permit. No tree removal permit shall be issued unless the Environmental Planner finds that at least one of the following criteria has been satisfied with respect to each protected tree designated for removal under the permit. (a) that the tree is located within the net buildable area of a given site, as identified on the tree survey and site plan by the applicant; (b) that the tree is located within an existing or proposed right-of-way; (c) that the tree is located within an existing or proposed easement, stormwater management tract or facility, provided that only the minimum area reasonably necessary for the contemplated service or use shall be considered under this -9- criteria; (d) that the tree is located where its continued exis- tence would unreasonably interfere with the physical construction of the improvements on a particular site as may result from inter- ference with the access to the site by construction equipment, or with the operation of the equipment on the site in the immediate vicinity of the proposed structure or improvements; (e) that the tree is located where it creates or will create a safety or health hazard, or a nuisance with respect to existing or proposed structures or vehicle or pedestrian routes; (f) that the tree is located where it interferes with the installation, delivery, or maintenance of proposed or existing utility services to the site; (g) that the tree is diseased, injured, or in danger of falling; (h) that the tree is located on a portion of the site outside of the net buildable area but within that portion of the site to be used for construction of required parking areas or vehicular and pedestrian ingress and egress areas; provided that, when this criteria is used to justify removal of a tree or trees located outside of the gross buildable area, the applicant shall replace any such tree or trees with an equal number of trees of similar ecological or aesthetic value, as determined by the Environmental Planner, unless it can be demonstrated by the appli- cant that the remaining site cannot be designed to accommodate and sustain the substituted tree or trees. All replacement trees shall be of a minimum two (2) inches DBH 2) Land Clearing Permit. No land clearing permit shall be issued unless the Environmental Planner finds that each of the following criteria has been satisfied: a) That the land clearing or grubbing is necessary in order to make site improvements authorized by an approved site plan, subdivision approval, or land development permit, and that the area to be cleared is the minimum necessary for such work or in the event the aforementioned approvals are not required by law for the intended use of the property, that the proposed clearing -10- is the minimum necessary for the proposed use or improvement. b) That the applicant has provided a reasonable written plan to control 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 means as determined by the applicant; temporary seeding and mulching, sodding, diversion berms, inter- ceptor 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 Environmental Planner 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. c) That the applicant has or is complying with all tree protection provisions contained elsewhere in this ordinance. 3) A land clearing permit does not authorize the removal or destruction of protected trees. Notwithstanding anything in Section 8 to the contrary, no tree removal or land clearing permit shall be construed to authorize any act with respect to a mangrove. 4) Mangrove Alteration Permit. Mangrove alteration permits shall be available upon proper application in accordance with Section 11 and provided the applicant affirmatively acknowl- edges an understanding of the requirements of Section 9 of this ordinance, which conditions shall govern use of the permit. 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 same development site. The appli- cant must provide an affirmative program satisfactory to the Environmental Planner to assure survival of the replaced or relocated mangroves and to stabilize the shoreline from which man- groves were removed. The approved program shall be considered an express condition of the permit and failure to carry out any of -11- 747 its provisions shall be considered a violation of this ordinance. Removal of any mangrove under this provision shall be allowed only if the Environmental Planner finds that one or more of the criteria described in Section 8 B (1), except 8 B (1) (a), which shall not justify removal, has been satisfied with respect to each mangrove scheduled for removal and relocation or replacement. SECTION 9 ADDITIONAL MANGROVE PROTECTION A. All mangrove alteration permits shall be governed by the following regulations, which shall be deemed incorporated as special conditions of the permit. A violation of any of these provisions shall be deemed to be unlawful and subject to all penalties provided herein. 1) At least fifty (50) percent of the canopy of any mangrove trees shall be retained. 2) No prop roots shall be damaged or removed from a red mangrove nor shall pneumatophores be damaged or removed from a black mangrove. Neither prop roots nor pneumatophores shall be buried by fill or other means. 3) On a black mangroves 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. 4) 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 regrowth shall be allowed to attain a height of a minimum of four (4) feet above natural ground elevation. 5) No mangrove cuttings shall be discarded into any estuary, marsh, river, or adjacent water course. 6) Pruning, removal and relocation of mangroves shall be prohibited between December 1st and February 15th. 7) On red mangroves, there shall be no trimming or cutting below the lowest four (4) living lateral limbs, nor shall the outer growing ends of these lowest four (4) limbs be trimmed except for light shearing related to shaping or hedging of the -12- tree. 8) 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. 9) Red mangroves may be hedged down to a minimum height of six (6) feet, providing the limitations in paragraphs 1 and 7 above are not exceeded. SECTION 10 ADDITIONAL DUNE AND SHORELINE VEGETATION PROTECTION In order to protect the natural vegetation and the main dune bluff fronting on the Atlantic Ocean, the following restrictions shall be observed: A. No structure shall be located seaward of the Coastal Construction Control Line established by the Department of Natural Resources pursuant to Florida Statutes Chapter 161, as may be amended from time to time, except as provided elsewhere in this ordinance. This provision shall be construed to establish a local setback ordinance within the meaning of Fla. Admin. Code Chapters 16B-25 and 16B-33, as may be amended from time to time. B. Except as provided herein, encroachment or ingress onto or any disturbance of the main dune or natural vegetation seaward of the state Coastal Construction Control Line is prohibited, including encroachment or disturbance caused by individuals upon foot or by vehicle of any kind. C. No structure, other than an elevated bridge or dune crossover, or observation tower constructed in the interest of public safety, may be located seaward of the Coastal Construction Control Line and the design of any such allowed structure must be approved in advance by the Department of Natural Resources, Bureau of Beaches and Shores, or its successor, and the Public Works Director of Indian River County, Florida. D. Except as expressly provided in Subparagraph E, it shall be unlawful for any person to operate, drive, or propel any truck, tractor, bulldozer, grader, crane, automobile, motorcycle, dune buggy, moped, minibike, all terrain cycle, or any other vehicle seaward of the Coastal Construction Control Line; -13- -- excluding, however, any of the aforementioned vehicles when operated by the State of Florida or a political subdivision of the State of Florida, or those operations which have received the express authorization of the Board of County Commissioners. E. Notwithstanding the foregoing provisions, during construction in the vicinity of the main dune, an applicant who has received the express written approval of the Bureau of Beaches and Shores of the Department of Natural Resources to carry on construction activity seaward of the Coastal Construction Control Line may make use of a leeway zone of up to fifteen (15) feet seaward of said Control Line for those activities related to construction of improvements up to or landward of the Control Line. No permanent improvement or structure may be made in the leeway zone and, prior to encroachment therein, a temporary barrier running parallel to the Coastal Construction Control Line shall be placed at the most seaward extent of the leeway zone to identify the limits beyond which no encroachment of any kind may occur; provided, however, all activities related to construction of an approved dune crossover or elevated bridge shall be governed by the authorization given under paragraph C above. All proposed activity within the fifteen (15) foot leeway zone shall be described in writing and submitted to the Environmental Planner for prior approval, in addition to the approval by the Bureau of Beaches and Shores required above. Approvals required under this paragraph may be obtained concurrently with site plan or subdivision approval, as the case may be, but must be obtained in any event prior to the scheduled activity. The leeway zone shall be revegetated with natural indigenous dune vegetation upon completion of construction activities and prior to the issuance of any certificate of occupancy for the subject improvements. The applicant remains responsible for successful reclamation of the dune vegetation temporarily destroyed under this paragraph. SECTION 11 APPLICATION PROCEDURE AND FEES A. Application for issuance of any permit required by -14- this ordinance shall be made in writing to the Community Development Division on a form provided by the Environmental Planner. 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 which protected trees are intended for removal, relocation or alteration in any way and those which will be left undisturbed. On sites which are larger than 2.0 acres, protected 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 either entirely removed or left entirely undisturbed. A written explanation shall be included with the tree survey which identifies those criteria in Section 8 of this ordinance which justify issuance of the requested permit. 4) If landclearing is intended, an erosion control plan as described in Section 8 B (2), together with reasons for clear- ing 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, and setback or yard require- ments. If known, existing and proposed site elevations and major contours shall be included. 6) An administrative fee to offset the cost of evalu- ating the application shall be collected in an amount determined by resolution of the Board of County Commissioners. B. 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 MR -M application. C. For those applications which are not being processed concurrently with site plan or subdivision approval, the Community Development Division shall have ten (10) working days following receipt of a completed application within which to make a deter- mination on whether a permit shall be issued as requested. If the permit is not issued, the Environmental Planner shall state in writing the reasons for denial and advise applicant of any appeal remedies available. If no action has been taken on the applica- tion within the stated time, the application shall be deemed to have been 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 addi- tional ten (10) working days in which to make a determination, provided the extension is requested prior to expiration of the initial ten (10) day period. D. Any permit issued hereunder shall remain valid for a term of six (6) months and may be renewable for a second six (6) month period upon request to the havironmental Planner. 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 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. SECTION 12 DETERMINATION OF PROTECTED AREA The Environmental Planner shall review each application, and may inspect each site, for the purpose of making a determina- tion as to the appropriate protected area to be designated for those protected trees on a given site. The protected area shall be established based upon consideration of the species, age, size, condition of the tree, or soil condition, topography, means of -16- protective barrier proposed, or other relevant criteria, and shall be established for the purpose of protecting the roots and trunk of a protected tree both during and after construction. In no event shall the protected area exceed the drip line of the canopy area, nor shall the protected area be less than an area measured five (5) feet radially from the center of the tree at its base. SECTION 13 LOCAL PERMIT NOT EXCLUSIVE It is the intent of this ordinance that permits or approvals required hereunder shall be in addition to and not in lieu of any federal, state, regional or other local approvals which may be required for the same or similar activities. In the event this ordinance conflicts with any other regulations on this subject matter, the more restrictive shall apply, with the excep- tion that in a municipality, the municipal ordinance shall pre- vail. Compliance with provisions of this ordinance does not excuse any person for iron -compliance with other applicable federal, state, regional or local laws. ,.--1 I. VARIANCES AND ADMINISTRATIVE APPEALS A variance from any of the substantive requirements of this ordinance 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 current Zoning Ordinance 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. SECTION 15 TREE PROTECTION AS JUSTIFICATION FOR VARIANCE RELIEF FROM OTHER LAND DEVELOPMENT REGULATIONS Inasmuch as the requirements of this ordinance have been determined to be of vital importance to the health, safety ar.d well-being of the community, the desire to preserve a protected tree, whether mandated by this ordinance or not, shall be considered prima facie a unique or special condition or -17- Circumstance peculiar to the land involver] For the purpose of application for a variance from the literal requirements of a land development ordinance 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. PENALTIES AND ENFORCEMENT -- CODE ENFORCEMENT BOARD JURISDICTION A violation of any provision of this ordinance shall be punishable upon conviction by a fine not to exceed FIVE HUNDRED DOLLARS ($500.00), or by imprisonment in the County jail up to sixty (60) days, or both such fine and imprisonment. The destruc- tion or alteration of each tree or plant under this ordinance shall be considered a separate offense. The destruction of an historic or specimen tree, mangrove, or any dune vegetation, contrary to this ordinance shall receive the maximum penalty pro- vided by law. Any violation of this ordinance is also subject to prosecution before the Indian River County Code Enforcement Board in accordance with applicable law and subject to penalties allow- able under the Code Enforcement Board Ordinance. In addition to either of the foregoing remedies, the County or any aggrieved party having a substantial interest in the protections provided by this ordinance may apply directly to a court of competent juris- diction for mandatory or prohibitive injunctive relief. In any enforcement proceeding, the adjudicating body may consider miti- gating 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. SECTION 17 REPEAL OF CONFLICTING PROVISIONS All previous ordinances, resolutions, or motions of the -18- Board of County Commissioners of Indian River County, Florida which conflict with the provisions of this ordinance, and specifically, Section 3 (8)(a) of Appendix A--Zoning--of the Code of Laws and Ordinances of Indian River County, are hereby repealed to the extent of such conflict. All Special Acts of the legislature applying only to the unincorporated portion of Indian River County and which conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict. SECTION 18 INCORPORATION IN CODE The provisions of this ordinance shall be incorporated into the County Code and the word "ordinance" may be changed to "section", "article", or other appropriate word, and the sections of this ordinance may be renumbered or relettered to accomplish such intentions. SECTION 19 SEVERABILITY If any section, part of a sentence, paragraph, phrase or word of this ordinance is for any reason held to be unconstitu- tional, inoperative or void, such holdings shall not affect the remaining portions hereof and it shall be construed to have been the legislative intent to pass this ordinance without such uncon- stitutional, invalid or inoperative part. EFFECTIVE DATE This ordinance shall become effective as law on the 10th calendar day following the date of receipt of acknowledgement from the Department of State of the filing of this ordinance. Any project which has received final site plan or subdivision approval prior to the effective date of this ordinance shall be considered exempt from its requirements, with the exception of mangrove alteration or removal provisions which shall apply prospectively to all such activity beginning on the effective date hereof. Approved and adopted by the Board of County -19- 10 Commissioners of Indian River County, Florida on this 16th day of November , 1983. BOARD OF COUNTY COMMISSIONERS OF INDIAN 'RRIVER COUNTY By��`/ RICHARD N. BIRD Chairman Acknowledgment by the Department of State of the State of Florida this 21st day of November , 1983. Effective Date: Acknowledgment from the Department of State received on this 28th day of November 1983, at 11:00 A.M./P.M. and filed in the Office of the Clerk of the Board of County Commissioners of Indian River County, Florida. APPR VV *OPSHER �JPAULI,r M AND LEGA By CHR . Asst. County Attorney -20-