And Sandy sent this:
Date: Tue, 28 Feb 2012 12:08:17 -0500
Subject: tidbits
From: janesjunglework@gmail.com
To: keysmyhome@hotmail.com
This was incorporated with Article VI, but does not eliminate Chapter 35 in any way I can see except Jim may be right, he no longer has to sit as 5th member. What is your take on this below? This is what Jim believes is the Tree commission now, but it does not say the Chapter 35 Tree Commission is set aside, and I believe this is only to incorporate them with authority over Article VI, which they did not have without an update. Get back to me when you look it over. I want your opinion.
Sandy
Then followed a long compilation of Key West City ordinances related to the Tree Commission, Planning Department and land development regulations, also known as LDRs, set forth in full beneath what I wrote back to Sandy. The ordinances might bore lay people to death, but are really important for prosecutors and plaintiff lawyers and judges and juries in this sort of government racketeering.
Hi, Sandy -
My impression …
There are two entirely different Tree Commission statutes (ordinances): Merilee McCoy’s, which is Chapter 35 and is a lovely-feel-good ordinance, and the one Jim Scholl cited to you, which clearly applies to developments. We know this, among other reasons, because land development regulations (LDRs) is development talk through and through. Land development regulations have nothing to do with, say, Mayor Craig Cates’ home in Key West. He is no more bound by the LDRs than are you, who do not even live in Key West. Mayor Cates only has a duty under Article VI to keep trees on his home property trimmed away from city sidewalks, streets, right-of-ways and power lines. Failing which, he can be cited and brought before the Special Magistrate. The Tree Commission Jim cites, and the Planning Department and City subverted Article VI to apply to homeowners like Mayor Cates’. That is why Merili McCoy scolded the Tree Commission when they fined her for trimming trees at her home without the Tree Commission’s permission. She knew they were abusing their positions and practicing extortion.
What else really jumps out at me in the ordinances you sent is, I put it into bold type:
Sec. 90-174. – Removal of members.
All members of the tree commission serve at the pleasure of the city commission and may be removed by majority vote of its full membership. If a member is absent from two of three consecutive regular meetings without cause and without prior approval of the chairperson, the tree commission shall declare the member’s office vacant.
(Ord. No. 97-10, § 1(1-2.7.1(B)(3)), 7-3-1997)
This Section says in plain English who is the boss of the Tree Commission, and that means who is responsible for what the tree commissoners do and don’t do. Not the City Manager, not the Planning Department, not the City Attorney, but the City Commission (the six city commissioners and the mayor) are responsible for what the tree commissoners do and don’t do. Meaning, the City Commission is responsible for the misuse of Article VI against private homeowners …
I can’t imagine this not being a red hot topic of discussion at candidate forums during the upcoming State Attorney race …
Sloan
DIVISION 5. – TREE COMMISSION [97]
Sec. 90-171. – Created.
Sec. 90-172. – Composition.
Sec. 90-173. – Terms of office.
Sec. 90-174. – Removal of members.
Sec. 90-175. – Compensation.
Sec. 90-176. – Quorum.
Sec. 90-177. – Officers.
Sec. 90-178. – Schedule of meetings.
Sec. 90-179. – Special meetings.
Sec. 90-180. – Record of activities.
Sec. 90-181. – Reserved.
Sec. 90-182. – Powers and duties.
Secs. 90-183—90-210. – Reserved.
Sec. 90-171. – Created.
There is created the tree commission, as mandated by State Bill 5197, Laws of Fla. ch. 70-765, filed June 24, 1970, which shall have power and authority to accomplish the public purpose.
(Ord. No. 97-10, § 1(1-2.7.1(A)), 7-3-1997)
Sec. 90-172. – Composition.
The tree commission shall consist of seven residents of the city who shall be appointed by the mayor with the advice and consent of the city commission.
(Ord. No. 97-10, § 1(1-2.7.1(B)(1)), 7-3-1997; Ord. No. 04-20, § 1, 11-3-2004
Sec. 90-173. – Terms of office.
Appointments to the tree commission shall be for a term of three years and shall be made on staggered basis with no more than two appointments per year, except that an appointment to replace a vacating member shall be for the unexpired term of the member.
(Ord. No. 97-10, § 1(1-2.7.1(B)(2)), 7-3-1997)
Sec. 90-174. – Removal of members.
All members of the tree commission serve at the pleasure of the city commission and may be removed by majority vote of its full membership. If a member is absent from two of three consecutive regular meetings without cause and without prior approval of the chairperson, the tree commission shall declare the member’s office vacant.
(Ord. No. 97-10, § 1(1-2.7.1(B)(3)), 7-3-1997)
Sec. 90-175. – Compensation.
All members of the tree commission shall serve without compensation but, as authorized by the city commission, may be reimbursed for actual expenses incurred in connection with their duties.
(Ord. No. 97-10, § 1(1-2.7.1(B)(4)), 7-3-1997)
Sec. 90-176. – Quorum.
Four members of the tree commission shall constitute a quorum for the transaction of business.
(Ord. No. 97-10, § 1(1-2.7.1(C)(1)), 7-3-1997)
Sec. 90-177. – Officers.
From among its members, the tree commission annually shall elect a chairperson and such other officers as it deems necessary.
(Ord. No. 97-10, § 1(1-2.7.1(C)(2)), 7-3-1997)
Sec. 90-178. – Schedule of meetings.
The tree commission shall convene on a regularly scheduled basis at least once each month. Notice of all meetings including the agenda with the address and description of each project shall be published in a newspaper of general circulation in the city at least five days in advance thereof. At any special or regular meeting the tree commission may set a future meeting date.
(Ord. No. 97-10, § 1(1-2.7.1(C)(3)), 7-3-1997; Ord. No. 00-04, § 5, 2-1-2000; Ord. No. 04-20, § 2, 11-3-2004)
Sec. 90-179. – Special meetings.
Special meetings of the tree commission may be called by the chairperson or by written notice signed by three members. No official action shall be taken during any special meeting unless four members concur.
(Ord. No. 97-10, § 1(1-2.7.1(C)(4)), 7-3-1997)
Sec. 90-180. – Record of activities.
Minutes shall be kept of all meetings of the tree commission or committees thereof. All such meetings shall be open to the public and, except in emergencies so designated by a majority of the full membership, notice of such meetings shall be published as for a regular meeting, and an agenda for each meeting shall be available to the public at city hall 48 hours in advance thereof. Copies of tree commission records shall be available to the public for a fee set forth in the tree commission regulations.
(Ord. No. 97-10, § 1(1-2.7.1(C)(5)), 7-3-1997)
Sec. 90-181. – Reserved.
Editor’s note—
Section 4 of Ord. No. 04-20, adopted Nov. 3, 2004, repealed § 90-181, which pertained to recommended rules governing operations, and derived from Ord. No. 97-10, adopted July 3, 1997.
Sec. 90-182. – Powers and duties.
The tree commission shall have the power and responsibility to carry out the duties conferred upon it by this Code of Ordinances and shall perform the duties in order to protect and enhance the health, growth, and planting of trees in the city. Findings of the tree commission regarding destruction or damage to trees are enforced through the special master. The only appealable decisions of the tree commission concern permits. These decisions may be appealed to the city commission.
(Ord. No. 97-10, § 1(1-2.7.1(D)), 7-3-1997; Ord. No. 08-04, § 4, 5-20-2008)
Secs. 90-183—90-210. – Reserved.
____________________________________________________________________________________________________
TIDBITS found under Sec. 90 and Sec. 110 you might be interested in:
Sec. 90-243. – Required city proceedings and action.
Under the “fairly debatable rule” as provided in this division, the city’s function is to weigh the advantages and disadvantages of the land use, planning or zoning issue—especially whether or not the action is consistent with public health, safety, or welfare. Such acts are generally presumed valid unless they are clearly shown not to have a reasonable relationship to the public health, safety, or welfare or are shown to be unreasonably and arbitrarily applied to property. The test used to determine this is whether the resolution is “fairly debatable.”
(Ord. No. 97-10, § 1(1-2.1(B)(2)), 7-3-1997)
Sec. 110-294. – Notice of tree commission’s final decision.
When a person found to be in violation of this article by the tree commission opts not to enter into a compliance settlement agreement, the tree commission shall provide written notice of its final decision and its intention to forward the case to the code enforcement special master. Notice shall be provided either by hand or by mail, return receipt requested, within ten days of the hearing.
(Ord. No. 97-10, § 1(3-14.11(C)(4)(b)), 7-3-1997)
Key West, Florida, Code of Ordinances >> Subpart B – LAND DEVELOPMENT REGULATIONS >> Chapter 90 – ADMINISTRATION >> ARTICLE IV. – ADMINISTRATIVE OFFICIAL >>
ARTICLE IV. – ADMINISTRATIVE OFFICIAL
Sec. 90-301. – Enforcement authority.
Sec. 90-302. – Application, purpose and conflict.
Sec. 90-303. – General procedures for violations.
Sec. 90-304. – Complaints regarding violations.
Sec. 90-305. – Appeals of decisions.
Secs. 90-306—90-330. – Reserved.
Sec. 90-301. – Enforcement authority.
(a)
The chief building official, under the supervision of the city manager, shall administer and enforce the land development regulations. The chief building official may be provided with the assistance of such other city officers and employees as the city manager may direct.
(b)
The city planner shall have the administrative responsibility to interpret the land development regulations. Such interpretations shall be in writing and accompanied by review and written consent by the city attorney.
(Ord. No. 97-10, § 1(1-2.2), 7-3-1997; Ord. No. 00-04, § 1, 2-1-2000)
Sec. 90-302. – Application, purpose and conflict.
The chief building official shall apply the provisions of the land development regulations as minimum requirements for the promotion of the public health, safety, or the general welfare of the public. The land development regulations are not intended to interfere with, abrogate or annul requirements of other lawfully adopted rules, regulations, ordinances, deed restrictions or any lawful easements or other agreements between parties; provided, however, that where the land development regulations impose a greater restriction, the land development regulations shall prevail.
(Ord. No. 97-10, § 1(1-2.2(A)), 7-3-1997)
Sec. 90-303. – General procedures for violations.
Whenever the chief building official shall find that any of the sections of the land development regulations is being violated, written notification shall be directed to the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it. The chief building official shall:
(1)
Order discontinuance of the illegal use of land, buildings, or structures or of additions, alterations, or structural changes thereto;
(2)
Order the removal of illegal buildings or discontinuance of any illegal work to be done; or
(3)
Take any other action authorized by the land development regulations to ensure compliance with or to prevent violations of its provisions.
(Ord. No. 97-10, § 1(1-2.2(B)), 7-3-1997)
Sec. 90-304. – Complaints regarding violations.
(a)
Whenever a violation of the land development regulations occurs or is alleged to have occurred, any person may file a written complaint or a verbal complaint as described in this section.
(b)
A written complaint shall fully explain the causes and basis of the complaint and shall be filed with the building official. The building official shall properly record such complaint and notify the appropriate city personnel who shall investigate and take action thereon as provided for in article VI of chapter 2 pertaining to code enforcement.
(c)
A verbal complaint, which reports an alleged violation, may be directed to the administrative official. A verbal report of violation received by the administrative official shall be processed by informing the complainant as to the written procedures described in subsection (b) of this section. When a person does not subsequently submit a written report concerning a violation, the administrative official shall ensure that a field inspection is carried out to verify the oral report concerning the alleged violation. Complaint investigations may also be based upon field inspections performed by the administrative official or other designated personnel.
(Ord. No. 97-10, § 1(1-2.2(C)), 7-3-1997)
Sec. 90-305. – Appeals of decisions.
Provisions for appeal of decisions, including final orders, issued by the chief building official in administering and enforcing the land development regulations are stated in division 4 of article V of this chapter.
(Ord. No. 97-10, § 1(1-2.2(D)), 7-3-1997)
Sec. 110-337. – Appeals.
Appeals of the tree commission’s permit decisions may be taken to the city commission as provided in section 90-429.
(Ord. No. 97-10, § 1(3-14.9), 7-3-1997; Ord. No. 08-04, § 22, 5-20-2008)
Sec. 90-426. – Scope.
With the exception of variances granted pursuant to this division, the final decisions of the planning board may be appealed to the city commission. Variances granted pursuant to this division may be appealed in the manner provided by law to the county Circuit Court. Final decisions of the historic architectural review commission may be appealed to a special master, as provided by the Charter. Final orders and administrative and enforcement decisions by the city planner and chief building official may be appealed to the city commission. Appeals of permit decisions of the tree commission may only be addressed by the city commission.
(Ord. No. 97-10, § 1(1-2.8), 7-3-1997; Ord. No. 08-04, § 11, 5-20-2008)
Sec. 90-429. – Final decisions of tree commission.
(a)Decisions of the tree commission regarding a tree permit shall be considered final. An appeal from a permit decision of the tree commission may be taken to the board of adjustment:
(1)By the applicant; or
(2)When written approval is granted:
a.By any aggrieved person who owns real property adjacent to or located within 200 feet of a boundary line of the lot or parcel on which the tree is located; or
b.By the city manager.
(b)Where the tree commission has heard a case of damage or destruction of a tree under sections 110-288 through 110-295 and has made findings and a recommendation to the special master, the alleged violator’s rights of appeal shall be subject to the regulations governing the special master.
(Ord. No. 97-10, § 1(1-2.8(C)), 7-3-1997; Ord. No. 04-20, § 3, 11-3-2004)
Sec. 90-431. – Procedures for rendering decisions.
In considering and acting upon appeals of final decisions of the planning board, the historic architectural review commission, or the tree commission, as well as final orders and questions of interpretation and enforcement of the land development regulations and the building codes by the city planner and the chief building official, the following procedures shall be observed:
(1)
Procedure and time limitation for appeal.
a.
An appeal to the city commission or the special magistrate, as the case may be, shall be taken on or before the tenth day, counted consecutively, after the date of the order by the planning board or the historic architectural review commission to which the appeal is directed.
b.
An appeal to the board of adjustment shall be taken on or before the tenth day, counted consecutively, after the date of the order or the administrative action of the tree commission, chief building official or the city planner.
c.
When the order or other administrative action has been mailed to the party, the party may add three (3) days to the prescribed time period for appeal. The original and one copy of the notice of appeal, together with all the documents, plans, papers or other materials constituting the record upon which the action appealed from was taken, shall be filed with the city clerk who shall provide copies thereof to the presiding officer of the city commission, the board of adjustment or the special magistrate, as appropriate, and to the city manager and city attorney. Appeals not so filed shall be deemed waived.
(2)
Date of hearing for appeals. Hearings of appeals by the city commission as well as the board of adjustment or special magistrate shall be held at the next regularly scheduled meeting of the city commission, board of adjustment or special magistrate, as the case may be, after the filing of the notice of appeal, unless the parties mutually agree to another date.
(3)
Notice. Upon notification of the date fixed for hearing on any matter subject to this division, the city clerk shall cause notice to be made pursuant to division 2 of article VIII of chapter 90. The city clerk shall also forward by certified mail, return receipt requested, similar notices setting forth the time, place and purpose of the hearing to the following:
a.
The appellant.
b.
The owner of the property described in the application, if other than the appellant.
(4)
Scope of review by city commission, board of adjustment, and special magistrate. In reviewing final orders, requirements, decisions or determinations of boards, commissions, and the chief building official, upon appeal thereof in conformity with this division, the city commission as well as the board of adjustment shall be limited to review of the documents, plans, papers or other materials constituting the record upon which the action was taken. The city commission and board of adjustment, may, upon appeal, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination made by the planning board, the tree commission, the chief building official, or other administrative official and may make any necessary further order, requirements, decisions or determinations respecting the subject of the appeal and, to that end, shall have all the powers of the planning board, the tree commission, the chief building official, and/or other administrative official respecting such matter. The concurring vote of no less than four members of the city commission or the board of adjustment shall be necessary to reverse or modify any order, requirement, decision or determination of the planning board, the tree commission, the chief building official, and/or other administrative official. The special magistrate shall have de novo review of the record in appeals from the historic architectural review commission; provided, however, that the term de novo shall not be interpreted to allow the introduction of new evidence that was not introduced in the initial proceedings of the historic architectural review commission, unless in the discretion of the special magistrate an additional presentation of evidence is equitable, necessary and limited in order to supplement the record.
(5)
Appearance and argument. At any hearing upon any matter subject to the land development regulations, the appellant seeking review by the city commission, the board of adjustment or the special magistrate, and any other party desiring to be heard may appear in person, by agent or by attorney. The appellant shall be entitled to make an initial presentation respecting the appeal and, at the conclusion of presentations or statements by all other parties, shall be entitled to offer a statement in rebuttal to such presentations if the appellant so desires. The presiding officer may, at the commencement of the hearing or at any time during such hearing, require that parties desiring to make a presentation identify themselves and may specify the time to be allowed for each party to make such presentation.
(6)
Effect of appeal and stay of proceedings. An appeal to the city commission, the board of adjustment or the special magistrate shall, upon filing, stay all work on the premises and all proceedings in furtherance of the order, requirement, decision or determination appealed from, unless the building official shall certify to the city commission or the board of adjustment, as appropriate, that, because of facts stated in the certificate, a stay would cause immediate peril to life or property, in which case proceedings or work shall not be stayed except by a restraining order granted by the city commission for due cause shown after notice to the party filing the appeal and to the administrative official. Nothing in this subsection shall be deemed to impair the authority of any court of competent jurisdiction to enjoin or stay actions of the administrative official, the city commission, the board of adjustment or the special magistrate.
(Ord. No. 97-10, § 1(1-2.8(E)), 7-3-1997; Ord. No. 00-04, § 6, 2-1-2000; Ord. No. 02-22, § 2, 9-4-2002; Ord. No. 06-14, § 3, 8-1-2006; Ord. No. 06-24, § 1, 12-5-2006)
Sec. 90-432. – Decision and order.
Action by the city commission, the board of adjustment or the special magistrate upon any matter subject to this division shall be announced by the presiding officer immediately following the vote determining such action and shall thereafter be embodied in a written order executed by the presiding officer and the city clerk. Such written order shall be incorporated into the minutes of the meeting at which such action occurred.
(Ord. No. 97-10, § 1(1-2.8(F)), 7-3-1997; Ord. No. 06-24, § 1, 12-5-2006)
Sec. 90-433. – Finality of decision.
When the city commission, the board of adjustment or the special master has taken action respecting an appeal of a board, commission, or the chief building official decision, as the case may be, no application for the same relief shall be accepted by the city clerk for consideration by the board, commission, or the chief building official or the city commission for a period of two years from the date of such action. However, after one year an applicant may request that the city commission, the board of adjustment or the special master, as appropriate, waive this section for proper cause based on changed conditions and/or the advent of new information which substantially impacts material issues. If a request for such waiver is submitted by the applicant and is filed, the city commission, the board of adjustment or the special master, as appropriate, shall determine if the changed conditions and/or the new information is sufficient to convene a new hearing on the applicant’s appeal. If the city commission determines that a hearing should be held on the applicant’s appeal, the city manager shall direct the city clerk to provide due public notice of the scheduled public hearing in the same manner as required for the original appeal as described in section 90-431(3).
(Ord. No. 97-10, § 1(1-2.8(G)), 7-3-1997)
Sec. 90-434. – Judicial review of decisions.
Any person, jointly or severally, or any officer, department, board, commission or bureau of the governing body aggrieved by any decision of the city commission, the special master, or the board of adjustment respecting an appeal of a decision by a board, commission, or the chief building official may apply, in the manner provided by law, to the county circuit court for judicial relief.
(Ord. No. 97-10, § 1(1-2.8(H)), 7-3-1997; Ord. No. 02-22, § 3, 9-4-2002)
Secs. 90-435—90-460. – Reserved.
FROM SEC 110 from Article VI
Sec. 110-294. – Notice of tree commission’s final decision.
When a person found to be in violation of this article by the tree commission opts not to enter into a compliance settlement agreement, the tree commission shall provide written notice of its final decision and its intention to forward the case to the code enforcement special master. Notice shall be provided either by hand or by mail, return receipt requested, within ten days of the hearing.
(Ord. No. 97-10, § 1(3-14.11(C)(4)(b)), 7-3-1997)
Sec. 110-337. – Appeals.
Appeals of the tree commission’s permit decisions may be taken to the city commission as provided in section 90-429.
(Ord. No. 97-10, § 1(3-14.9), 7-3-1997; Ord. No. 08-04, § 22, 5-20-2008)
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Sandy Downs