Parks & Shade Tree City of Rehoboth Beach Commission 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 www.cityofrehoboth.com Rehoboth Beach, Delaware 19971
PARKS & SHADE TREE COMMISSION MEETING City Hall Commissioners Room, 2nd Floor Monday, October 22, 2018; 2:00 p.m.
AGENDA
Page 1. Call to Order 2. Welcome new members. 3. Roll Call 4. Correspondence Email received October 18, 2018 from Sturges Dodge, 512 New 3 - 13 Castle Street Extended - in support of City Arborist decision for 318 Country Club Drive Letter received October 19, 2018 from Brian Patterson, 105 Country Club Drive - in opposition to tree removal Email received October 19, 2018 from Susan Gay, 316 Country Club Drive - in opposition to tree removal at 318 Country Club Drive Email received October 22, 2018 from Brian Patterson, 105 Country Club Drive - in response to 17 pages of additional material submitted for 318 County Club Drive 5. Approval of Minutes – Meeting held on August 27, 2018 6. Old Business 7. New Business A. The purpose of this meeting is to conduct an administrative appeal hearing pursuant to the Comprehensive Tree Ordinance (Chapter 253 of the Municipal Code of the City of Rehoboth Beach): 1. Appeal Hearing No. 0918-05 requested by Jeff 14 - 22 Meredith of Sussex Tree Inc. on behalf of Tim Mahoney, owner of the property located at 237 Rehoboth Avenue pursuant to Section 253-36 of the Municipal Code of the City of Rehoboth Beach, and pertains to a determination of a fee in lieu of mitigation for one tree. Public Notice - 237 Rehoboth Avenue Arborist Report - 237 Rehoboth Avenue Application with Support Documents - 237 Rehoboth Avenue
Page 1 of 84 2. Appeal Hearing No. 0918-06 requested by Jeff 23 - 30 Meredith of Sussex Tree Inc. on behalf of Renee Richardson, owner of the property located at 508 Lee Street pursuant to Section 253-36 of the Municipal Code of the City of Rehoboth Beach, and pertains to a determination of a fee in lieu of mitigation for one tree. Public Notice - 508 Lee Street Arborist Report - 508 Lee Street Application with Support Documents - 508 Lee Street 3. Appeal Hearing No. 0918-07 requested by John 31 - 69 McKenna, Winifred McKenna and Mary Ann Stain, owners othe property located at 318 Country Club Drive pursuant to Section 253-36 of the Municipal Code of the City of Rehoboth Beach, and pertains to an appeal of a denial of a tree removal application for a 56 inch caliper tree and/or a determination of a fee in lieu of mitigation. Public Notice - 318 Country Club Drive Arborist Report - 318 Country Club Drive Application with Support Documents - 318 Country Club Drive Support Documents - 318 Country Club Drive 4. Appeal Hearing No. 0918-08 requested by Jeff 70 - 84 Meredith of Sussex Tree Inc. on behalf of Bruce Vivari & Barbara Wagner, owners of the property located at 19 Lake Avenue, pursuant to Section 253- 36 of the Municipal Code of the City of Rehoboth Beach, and pertains to a determination of a fee in lieu of mitigation for one tree. Public Notice - 19 Lake Avenue Arborist Report - 19 Lake Avenue Application with Support Documents - 19 Lake Avenue 8. Other Business A. City Arborist's Report 9. Adjournment
AGENDA ITEMS MAY BE CONSIDERED OUT OF SEQUENCE [Time may not allow for the considereation of all agenda items.]
For additional information or special accommodations, please call (302) 227- 6181 (TDD Accessible) 24-hours prior to the meeting.
amw: 10/15/18; posted 10/15/18
Page 2 of 84 From: Sturges Dodge
To: All Members of the Parks and Shade Tree Tree Commission From : Sturges Dodge, 512 New Castle Street Extended, Rehoboth Beach, DE
Dear Commissioners,
I am writing in support of Liz Lingo, the City Arborist’s decision to deny the request for a tree removal permit for the 176 inch trunk circumference Silver Maple in the rear yard of 318 Country Club Drive. I am also writing in support of the preservation of this significant tree, most likely one of a shrinking group of trees that were present when Country Club Estates was a golf course. This is a tree that could qualify, in my opinion as an Historic Tree per section 253-28 C. Of the Tree Code.
I believe that the applicants’ claim for the right to remove the tree is based on section 253-30 (2) (a) (4), which states that ,” the tree is located where it creates or will create a material safety or health hazard or nuisance with respect to existing or proposed structures or vehicles or pedestrian routes, and such hazard or nuisance is not innate to or commonly associated with the existence of trees in general( for example, lightning, wet leaves on the ground during rainstorms”.
In my opinion, Ms Lingo, has offered sufficient and substantial solutions to the applicant to ameliorate any perceived or anticipated harms the tree may be causing. In interpreting the code and consulting with the applicant I believe she has correctly executed her duty and is more than justified in denying this application.
I would like to remind the Commission, albeit perhaps unnecessarily, that per section 253-36, A. , “ A notice of appeal must be in writing and shall include the applicant’s grounds for appeal. The notice of appeal must identify the error upon which the appeal is based and the grounds for reversal of the Building Inspector’s decision.” Therefore, unless the applicant can convincingly identify an error in Ms Lingo’s and the Building Inspector’s decision, it is incumbent on the Commission to deny this appeal.
It is not in my opinion, the Commission’s charge when deciding appeal cases to lessen the protective intent of the code in order to reduce inconvenience or increase potential financial gain for an appellant.
I make the above comment in light of at least one other situation in town that I have encountered, where a tree removal was approved based on a complaint that the applicant had to clear roots annually from sewage pipes, a far from financially prohibitive cost, and one that could have been solved by making necessary repairs to aging pipes. In this case a lovely front yard loblolly pine went down shortly before the house was put on the market, demolished, and replaced with a much larger house and a much smaller tree that will never contribute to the City's high tree canopy.
I have no way of knowing if the current appellant has similar motives, but it would not surprise me if this is his or her way to “clear the way” toward a more lucrative sale of the property for redevelopment. This would most likely result in the permanent reduction, by one more tree, of the City’s high tree canopy.
Sincerely,
Sturges Dodge
Page 3 of 84 October 19, 2018
Priscilla Smith, Chair Park and Shade Tree Commission City of Rehoboth Beach
Via e-mail to: Anne Womack, Secretary [email protected]
Ref: Appeal for 318 Country Club Drive
Dear Chair and Members of the Park and Shade Tree Commission,
I am writing as a homeowner in Country Club Estates and a former member for nine years on the Planning Commission of the City of Rehoboth Beach, in which capacity I worked extensively with the current Tree Ordinance and I was a primary author of the Planning Commission's 2014 draft amendments to the Tree Ordinance.
I wish to be recorded in opposition to the application for removal of this tree located in the rear yard at 318 Country Club Drive. On the one hand, this is a fine, healthy, mature shade tree that is protected by the law. This specimen tree bestows immeasurable benefits upon the community, in terms of the enjoyment of its beauty, its shade, its absorption of storm water, its purification of air, etc.
On the other hand, neither the original application nor the appeal to this commission satisfies any of the criteria for removing a protected tree. The applicants cite Section 253-30 A(2)(a)(4), but they completely fail to explain how this tree poses the requisite "material safety or health hazard or nuisance." The key word is "material". An alleged hazard or nuisance must be the determining factor precluding use and enjoyment of existing or proposed structures or vehicles or pedestrian routes. No ordinary hazard or nuisance will suffice.
Here, the applicants allege hazards that are mundane and common to all mature backyard trees. As the keeper of a towering London planetree in my own backyard on Country Club Drive, I know well the struggle of maintaining a level walkway and a grassy yard with the roots and shade of a large tree. The common possibility that tree roots might cause damage to a foundation, upheaval to a slab or walkway, or damage to a lawnmower blade cannot be avoided in a “Tree City” such as Rehoboth Beach, but such risks can easily be mitigated by reasonable measures short of killing the tree. If those everyday nuisances are sufficient to justify removal of a healthy shade tree, then we may as well not have a Tree Ordinance at all.
Page 4 of 84 The applicant raises a number of legal and constitutional arguments that are unconvincing to me as a practicing lawyer for 23 years. With all respect to the Park & Shade Tree Commission, it is not your role to judge the constitutionality of the Tree Ordinance. Your role is to determine whether the City Arborist committed an error in finding that these applicants have not met the criteria in Section 253-30A(2)(a) for removal of a tree are met.
Because there has been no error here, and there is no good reason to remove this healthy specimen tree, I respectfully ask you to deny this application.
Sincerely,
/s Brian Patterson 105 Country Club Drive Rehoboth Beach [email protected]
Page 5 of 84
To Members of the Park & Shade Tree Commission:
I am writing in opposition to Case 0918-07, an appeal of a denial of a tree removal application at 318 Country Club Drive.
My husband and I own the house next door at 316 Country Club.
Tree Ordinance Criteria
Rehoboth Beach has long been recognized for “its unique wooded coastal environment… an essential part of the character of the city.” A comprehensive tree ordinance went into effect in 2006 because the City determined that regulations were necessary “ to protect, preserve, and enhance the wooded character and natural resources of the city.” (From ordinance 0106-01).
The City’s tree code regulates removal of trees, and accordingly, the City Arborist has denied this appeal for a tree removal permit. This tree, a towering Silver Maple, is protected by law for several reasons. It is a healthy mature tree not in the footprint of new construction. It also meets the criteria for a specimen tree under our code, and is, thus, a protected tree.That criteria is as follows:
Specimen tree. (1) Any tree in healthy condition, which equals or exceeds the following diameter size. (a) Twenty-four-inch caliper for deciduous trees such as but not limited to oaks, hickories, yellow poplars, and sweet gums. (b) Twenty-six-inch caliper for evergreen trees such as but not limited to pines. (c) Four-inch caliper for trees other than deciduous trees and evergreen trees, including but not limited to trees such as dogwoods, hollies, cedars, or ornamentals such as crape myrtle. (2) A specimen tree must also meet all of the following minimum standards: (a) A life expectancy of greater than 15 years. (b) A structurally sound trunk, not hollow and having no extensive decay and less than 20% radial trunk dieback. (c) No more than one major and several minor dead limbs (hardwoods only). (d)
Page 6 of 84 No major insect or pathological problems. It should be noted that this tree also qualifies as a historic tree, given its age of approx. 150 years.
This application does not meet the criteria for removal. The owners claim that the tree presents a “Material safety or health hazard or nuisance… and such hazard or nuisance is not innate to or commonly associated with the existence of trees in general.” Quite the contrary, the roots extending from this tree are very common for a tree of this size and age and the effects of that root growth can easily be mitigated with proper treatment, according to the City Arborist. In fact, the cost of such treatment would be less than the cost of removal. I might add that the roots of this tree do extend into my rear yard, and I do not have a problem with this spread. It has not hampered our ability to cut our grass or enjoy the full use of our yard. Its absence, however, would create harm to our property (see Impact discussion below).
Value of the Tree
As stated above, this isn’t just any Silver Maple. At 56 inches in diameter, 176 inches in circumference (exact height and crown spread unknown), it is the largest tree in Country Club Estates. At 150+ years old, it’s older than the City! It can never be replaced, not in our lifetimes or the lifetimes of our children. If we had a champion tree registry, this tree would be on it!
From the materials I reviewed, it seems the owners only submitted ground-level photos of the tree’s roots. To get a true understanding of the value of this tree to the City, you need to see photos of it! I’m sending some in a separate message.
In summary, this Silver Maple is a majestic example of its species, a rare and unique tree in Country Club Estates.
Impact on Surrounding Neighborhood
All trees contribute to the environment by serving as air filters, absorbing carbon dioxide and releasing oxygen. They also reduce stormwater runoff with leaves and branches intercepting rainfall. The larger the tree, the more it benefits us and the environment. In addition, this tree’s roots contribute to soil stabilization, and make the soil more porous, allowing it to become like a sponge that readily absorbs rainfall. The absence of this tree could create major flooding for a number of houses all around it, and harm those properties. (There are already “low spots” in the yards adjacent to the tree that get soggy whenever it rains.) It is important to note that the EPA has documented a 70% increase in heavy rain events in the Northeast US between 1958 and 2012, with projections that these heavy rains will further increase in the years ahead. This tree has done its job for many, many years and it is needed now more than ever!
Trees also create a natural habitat for birds and wildlife. Upsetting the balance of nature has adverse consequences for the neighborhood as well. Just this summer, a resident on Scarborough Avenue told me that she had had a mouse problem in her home for the first time in her 20-year ownership of the property. A pest control expert told her they had had more calls this year than ever before in Rehoboth. They attributed the rise to all of the new construction and related loss of trees and green space.
The adverse impact on surrounding properties, if this tree were to be removed, cannot be overstated.
Page 7 of 84 Conclusion
It is my sincere hope that you will deny the appeal to remove this tree. From my review of Park & Shade Tree decisions over the past several years, I do not see any instances where a healthy tree — one with no damage or disease whatsoever — has been allowed to be removed unless it was in the footprint of new construction. I have been told by a tree company that this tree sits in the rear setback. Thus, even if the house were to be replaced with a larger one, the tree could remain.
I was pleased to see that removal of a healthy tree that a commercial property owner considered a nuisance was denied a few months ago, and I encourage you all to make the same decision here. If we allow any tree to be removed at any time without fulfilling the criteria of our tree ordinance, we set a dangerous precedent for widespread loss of trees. Once that happens, the City is unlikely to sustain its valuable canopy and it associated high property values.
Thank you for your attention to this case and for your service on the Committee.
Susan Gay
Page 8 of 84 Silver Maple at 318 Country Club Drive
Page 9 of 84 Silver Maple at 318 Country Club Drive
Photo taken from across the street. The silver maple is in the center here.
Page 10 of 84 Silver Maple at 318 Country Club Drive
Page 11 of 84 Dear Chair and Members of the Park and Shade Tree Commission,
I am writing this morning in response to the 17 pages of additional material submitted on October 19 by the applicants. I urge you to deny this appeal and uphold the determination of the City Arborist, for the following reasons:
1. The 17 pages submitted on Friday should not be considered by this Commission, because that material is untimely. Section 253-36 allows an applicant 30 days to submit a written notice of appeal, which "must identify the error upon which the appeal is based and the grounds for reversal." Any additional evidence which the applicants want the Commission to consider should have been filed with the notice of appeal. These applicants appeal from an August 15 decision by the City Arborist, and therefore, this Commission should only consider the material submitted by the applicants before September 15. By waiting until the last business day before this hearing to submit 17 pages of additional arguments, the applicants deprive the public as well as this Commission of a fair opportunity to consider and respond to this additional material. The Commission should reject such tactics and and limit its review to the material submitted before the applicant's deadline on September 15.
2. Even if the Commission decides to consider them, the 17 pages of additional material fail to justify the removal of this healthy specimen tree, for the following reasons: a) The applicants first argue that their rights have been denied by some violation of Section 253-31, "Tree Survey Inspection." This is nonsense. Section 253-31 authorizes the City Arborist to conduct such inspection "as may be reasonably required to verify the information contained in the application." In this case, there is nothing in the application that required an onsite inspection to verify. Nevertheless, the City Arborist did inspect and found "no visible damage to the home's foundation." Although the applicants have the opportunity to participate in the inspection, they have no right to a "hearing" as they contend. Even if the applicants did not get notice of the inspection, the doctrine of "harmless error" applies here because there presence at the inspection would not have changed the outcome of this application. b) The applicants next argue that the August 15 letter by the City Arborist failed to give sufficient reasons for the denial. Again, they are being ridiculous. The Arborist properly directed the applicants attention to the provision in Section 353-25.F of the Code requiring that they utilize "all reasonable efforts ... to save protected trees" including "alteration of building design; alternate location of building ..." Moreover, the applicants were well aware of the Arborist's recommendations on specific measures to protect the foundation from root damage. c) The applicants' third argument is that their rights have been denied by virtue of the timing of the October 12 report of the City Arborist. Again, the applicants fail to show any harm. Even if the applicants somehow were harmed, the remedy is easy: this Commission ask the applicants whether they have anything else to say in response to
Page 12 of 84 the October 12 report, and if they need more time, the Commission should defer consideration of the appeal until the next meeting. Notably, the applicants d) Their fourth argument insists that they are grandfathered from the minimum density requirement. This is irrelevant. The application was not denied because of density, but because Section 253-26.F governs "Whether or not the density requirements ... are applicable ..." e) Their fifth argument merely repeats, at much greater length, their erroneous belief that Section 353-25.F does not apply to them. Their misinterpretation completely overlooks the governing text, "Whether or not the density requirements ... are applicable ..." f) The remaining arguments by the applicants suggest that the Tree Ordinance is unconstitutional in various ways. But they cite absolutely no case law against that the Rehoboth Beach ordinance, or any other tree ordinance. Their constitutional arguments are pure fantasy, and this Commission should not give them any regard.
In conclusion, the only "hazard" or "nuisance" which the applicants have shown are the common, ordinary issues with mature, healthy trees. The applicants have a fear of future root damage to the foundation of their home, but they have not shown any actual damage today. Moreover, whatever damage might occur can be avoided simply by cutting the roots as they approach the structures. The fact that root cutting has to be re- done every so often does not justify removal of this healthy specimen tree.
Sincerely,
Brian Patterson 105 Country Club Drive Rehoboth Beach
Page 13 of 84 Parks & Shade Tree City of Rehoboth Beach Commission 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 www.cityofrehoboth.com Rehoboth Beach, Delaware 19971
PUBLIC NOTICE
THE REHOBOTH BEACH PARKS & SHADE TREE COMMISSION Monday, October 22, 2018; 2:00 p.m.
Notice is hereby given that an administrative appeal hearing shall be conducted by the Rehoboth Beach Parks & Shade Tree Commission pursuant to Chapter 253 of the Municipal Code of the City of Rehoboth Beach on Monday, the 22nd day of October 2018 at 2:00 p.m. in the City Hall Commissioners Room on the second ?oor, 229 Rehoboth Avenue, Rehoboth Beach, Delaware. The appeal hearing has been requested by Jeff Meredith of Sussex Tree Inc. on behalf of Tim Mahoney, owner of the property located at 237 Rehoboth Avenue pursuant to Section 253-36 of the Municipal Code of the City of Rehoboth Beach, and pertains to a determination of a fee in lieu of mitigation for one tree.
All persons are hereby noti?ed to be present and to attend the determination of such hearing by said Commission.
Such hearing may be adjourned from time to time by said Commission without further notice.
All interested parties are invited to attend.
Issued this 1st day of October 2018.
BY ILUX‘ Priscilla Smith, Chair
zamw
Page 14 of 84 Building & Licensing City of Rehoboth Beach 229 Rehoboth Avenue Telephone 302-227-6181 PO. Box 1163 Fax 302-227-4504 Rehoboth Beach, Delaware 19971 WWW .city0freh0both.
MEMORANDUM
Parks and Shade Tree Commission From: Elisabeth Lingo, Arborist Date: October 12”‘,2018
The following is the report of the City Arborist with regard to the above referenced appealthat is to be heard before the Commission on Monday, October 22“, 2018.
A tree removal permit was issued for 237 Rehoboth Ave. on September 10"‘,2018 to remove (1) 31” caliper dead pine tree requiring 31” of mitigation and (1) tree for minimum density. Althoughthere are no trees remaining on the lot, only (1) tree is required for minimum density at this time: § 253-26 Minimum tree density requirements. E. Notwithstanding anything else to the contrary in this section, if a lot does not meet the density requirements in Subsection A of this section as of its effective date, then such property owner shall not be required to meet such density requirements for such lot unless an application is ?led for a building permit for a structure of 500 square feet or larger or demolition permit or for a subdivision of such lot; provided that, in the event that an existing tree on such lot is or becomes dead or signi?cantly diseased, thereby reducing the tree density below the density required by Subsection A of this section,it shall be removed and replaced by a tree of at least three inches caliper in size which is of a type listed in Appendix A[1] and which shall be planted in a location as near to the removed tree as is reasonably possible; and provided, furthe , that the density requirement s in Subsection A of this sectionshall apply upon any conveyance or transfer of such lot.
Since the tree was 31” in caliper, 31” of mitigation are required. There is room for the (1) required minimum density tree to be planted, but there is not sufficient room for an additional 31” of tree caliper onsite.
It is the City Arborist’s recommendationthat a fee in lieu be grantedfor those 31” of mitigation,provided that the (1) tree for minimum density is planted. Only the Parks and Shade Tree Commissionhas the authority to determine a fee-in-lieu of mitigation: § 253-36 Administrative appeals. (1) Fee in lieu of mitigation. A fee in lieu of mitigation may be granted only by the Park and Shade Tree Commission through the appeals process, and upon a recommendationfrom the City Arborist. Before granting a fee in lieu of mitigation, the applicant must demonstrate that the replacementof trees on the project site is not a viable option because meeting the requirementsof this article wouldresultin undue hardship, that all reasonable alternativesrelevant to protectionand mitigation have been exhausted, and that granting a fee in lieu of mitigation will not adversely impact the intent and purposes of these regulations.
Page 15 of 84 L!‘L£B-/
Job A(lrlress: 237 Rehoboth Ave. ue, Rehoboth Beach, DE ..1
7 Y -1 ‘
I
Page 16 of 84 THE PARKS & SHADE TREE COM ISSI SEP OF THE CKTY OF REHOBOTH BEA 6 Notice of Appeal and Application for Administrative Of?oeofC| Secratar The undersigned hereby gives notice of a request for an AdniinistrzitiveAppeal H63ring:
The following is an application made to Parks & Shade Tree Commissionof the City of RehobothBeach on the 14 day of August 2018 Locationof affectedproperty: 237 Rehohnth Avenue_ Rehoboth Beach, DP, 1997 Applicant'sName: Tim Mahonev MailingAddress: Same as ahnve em.... ail: cntg237 @ao|. com Telephone Numbers: 302.542.1992 (Home) (OE co} mWW (Cel_I) Representatives Name: Jeff Meredith -- Sussex Tree. Inc MailingAddress: 20350 Nelson Drive Bridgeville. DE 19933
Telephone Numbers: 302.337.3346 (Hcine )[email protected] m(O?ce) (Cell) Providedetailedinforniation d 'bingthc affected property and troe(s): See attached momsal TM
Please check at least one of the following:
[3 In the case of an application for a building or demolitionpermit or for approval of at subdivision,the tree is located within the net buildable area of a given lot as identi?ed on the tree survey/protectgion/plantingpiano provided that alternatives under §253-3507) have been considered; El The tree is located within an existing or proposed public or utility company right-of-wzxy, and relocationof such rigl‘:t-of-wayor the use thereof is not reasonsbiy practicable;
D The tree is located within an existing or proposed public easement, stormwater rnanageinent tract or facility, provided that only the niininntm area reasonably necessary for the public serviceor use shall he considered for purposes of detennining whether there is necessity for tree removal; 5 Cl The tree is located where it creates or will create a material safety or health hazard or nuisancewith respem to existing or proposed smictnres or vehicles or pedeslrian routes and such hazard or nuisanceis not innate to or commonly associated with the existence of trees in general (for example, lightning, wet lcxweson the ground during rainstorms); Cl The tree is located where it interferes with the installation, delivery or maintertanceof proposed or existing utility services to the lot and relocation of such services is not reasonably practicable, except that a higher degree of necessity must be demonstrated by the applicant in the case of a historic tree; N The tree is determined by the City to be dead, significantly diseased, severelyinjured or in danger offaifing; D The tree prevents reasonable developmen! of a lot that. is otherwise pennissiblo under City ordinzmces. However, a tree-removal permit shall not be granted where the applicant has failed to design and locate the proposed improvetnents, demolition or subdivisionso as to ininiinize the rentovai of trees consistentwith the permitted use of the lot and shall be granted only after'ful1consideration of alternatiwssilfldcf §253-35.
I’&STCForms/aniwl090a2()l '2
Page 17 of 84 Provideadditional information describing the grounds for appeal:
D Checkhere to con?rm you have included a diagram idofitifying the tree proposedfor removal and the trees to remain on the lot.
h
K ' Date; 44L2'9‘1'8‘('\\‘X\ \»5«\ Appcllan Fee Paid: @I’||| INSTRUCTIONS
(1) The Notice of Appeal and Application for Administrative Appeal Hearing must be ?led with the City Manager within thirty (30) days of the date of the decision involving the grant or denial of an applicationfor a tree-removal permit or land~cIea1-ingpermit, whicheveris the subject of the appeal.
(2) The Notice of Appeal and ‘Applicationfor AdministrativeAppeal Hearing, at $250.00 fee and all supportive documentation shall be prepared and delivered to the Building & Licensing Office on or before thirty (30) days prior to the date of the appeal hearing.
(3) The following are provided as guidelines when ?ling the Notice of Appeal and Application for Administrative Appeal Hearing:
(a) State the grounds upon whichthe is being made.
(b) Identify the error upon which the appeal is based and the grounds for I of the Building Inspector’s decision.
(c) Provide a clear and accurate description of the proposed work or use.
(d) Deliver ten (10) copiesof supporting documents for distribution.
P&STCFomis/nmw/090cL20 I2
Page 18 of 84 httns://www.citvofrehoboth.com/sites/default/files/ParksShadeTreeCommissionApp|icationForm030218.pdf [email protected]
Page 19 of 84 Page 20 of 84 \-.\mv,q Su ssex Tree In.c Bethany (302) 539-5700 ’ Rehoboth (302) 227-1930 M Q "The Tree Peop|e" Georgetown 856_921o 15% (302) Fax (302) 337-7746 wvvw.SussexTreelnc.com [email protected] PRPO AL August 13, 2018 Page 1 Proposal #.' 46941 Tim Mahoney Home: Proposal Date: 7/9/2018 237 Rehoboth Ave Office: Customer #.- 22935 Rehoboth Beach, DE 19971 Mobile: 302-542-1992 Arborist: JKM Fax: Job Type: G cntg237@ao|.com Terms in Days: 15 Pf7'0"'tV-‘ Normal Ent/Mod By: JKM TD Item# Quantity Description of Services UnitPrice Item Charge Disc./Adj. |temTota| Pine 1,895.00 -150.00 $1,745.00 Remove dead 30" caliper Pine behind the house. Shred and remove debris. Cut stump low to the ground.
*The City willhave to approve this removal before we can schedule the work.
2 Pine 395.00 $395.00 Grind pine stump and all apparent surface roots. Fillgrindings into hole and rake smooth.
*Pricing contingent on performing at the same time as the removal.
3 4 Pine 125.00 500.00 $500.00 A 38 ton crane rental is required to remove the tree(s) itemized above.
*Rate includes cost for rental from portal to portal. *The use of a crane willprovide the safest most efficient removal process.
4 Pine 125.00 $125.00 Tree removal permit fee from the City of Rehoboth
*We have included our current discount promotion in this proposal ($150.00).
20350 Nelson Drive Bridgeville, DE 19933
Page 21 of 84 ,w.\g:u/,, Bethany (302) 539-5700 (x. Su ssex Tree ’ Inc. Rehoboth (302)227-1980 "The Tree People" Georgetown (302) 856_9210 Fax (302) 337-7746 www.SussexTreelnc.com admin sussextre PRPO AL August 13, 2018 Page 2 Proposal #: 46941
Sussex Tree is NOT RESPONSIBLE for damage to underground cables, wiring, Proposal SubTota|: 2,915.00 irrigation, septic, etc. if we are not notifiedof items in advance. Should you haVe Discount Amount: 0.00 any questions, or if youwish to make any changes to this Proposal, please d° Proposal Total: $2,765.00 and return as soon as possible to not hesitate to contact us. Please sign Required Deposit: 0.00 schedule work. Payment Terms: Due upon Completion‘ The balance due and owing on your account after 15 days shall bear a service charge of 2% per month (24% per annum) on the unpaid balance. You will be liable forany Collection Fees andlor Attorney Fees that lncur due to nonpayment of account.
charge added Meredith A 3% convenience Jettrey K to all Credit Card Payments. Vice President, CTSP Signed: Date:
20350 Nelson Drive Bridgeville, DE 19933
Page 22 of 84 Parks & Shade Tree City of Rehoboth Beach Commission 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 www.cityofrehoboth.com Rehoboth Beach, Delaware 19971
PUBLIC NOTICE
THE REHOBOTH BEACH PARKS & SHADE TREE COMMISSION Monday, October 22, 2018; 2:00 p.m.
Notice is hereby given that an administrative appeal hearing shall be conducted by the Rehoboth Beach Parks & Shade Tree Commission pursuant to Chapter 253 of the Municipal Code of the City of Rehoboth Beach on Monday, the 22nd day of October 2018 at 2:00 p.m. in the City Hall Commissioners Room on the second ?oor, 229 Rehoboth Avenue, Rehobot Beach, Delaware. The appeal hearing has been requested by Jeff Meredith of Sussexh Tree Inc. on behalf of Renee Richardson,owner of the property located at 508 Lee Street pursuant to Section 253-36 of the Municipal Code of the City of Rehoboth Beach, and pertains to a determination of a fee in lieu of mitigation for one tree.
All persons are hereby noti?ed to be present and to attend the determination of such hearing by said Commission.
Such hearing may be adjourned from time to time by said Commission without further notice.
All interested parties are invited to attend.
Issued this 1st day of October 2018.
BY Priscilla Chair
zamw
Page 23 of 84 Building & Licensing City of Rehoboth Beac 229 Rehoboth Avenue Telephone 302-227-6181h 13.0.BOX1163 Fax 302-227-4504 Rehoboth Beach, Delaware 19971 .cityofreh0b0th.corn
MEMORANDUM
TO: Parks and Shade Tree Commission From: Elisabeth Lingo, Arborist Date: October 12”‘,2018 Re: 508 Lee St.
The following is the report of the City Arborist with regard to the above referenced appeal that is to b heard before the Commission on Monday, October 22”“,2018. e
A tree removal permit was issued for 508 Lee St. on September 10”“,2018 to remove (1) 35” calipe silver maple. There are (2) trees remaining on the lot: (1) 18” caliper Japanese Maple and (l) 18” caliper Holly (36” total). The lot is a 10,000 sq. ft. lot with a minimum density of (6) trees, subject to ther sub requirements of the city code. For minimum density, (6) trees at 3” each equals 18” of tree caliper.-18 for minimum density plus 35” of mitigation equals 55 total required. Since there is 36” available onsite” 53"’-36”equals 17” to be planted. ,
For this particular property, there is available space to plant trees. It is the recommendation of the City Arborist that (4) trees, or 12”, are planted to meet minimum density. This would allow the remaining 5 to be mitigated through a fee in lieu of mitigation. ”
Only the Parks and Shade Tree Commission has the authority to determine a fee-in-lieu of mitigation: § 253-36 Administrative appeals. (1) Fee in lieu of mitigation. A fee in lieu of mitigation may be granted only by the Park and ShadeTree Commission through the appeals process, and upon a recommendation from the City Arborist. Befor granting a fee in lieu of mitigation, the applicant must demonstrate that the replacement of trees eon th project site is not a viable option because meeting the requirements of this article would result in undue hardship, that all reasonable alternatives relevant to protection and mitigation have been exhausted,e an that granting a fee in lieu of mitigation will not adversely impact the intent and purposes of thesd regulations. e
Page 24 of 84 9/10/2018
Date Issued L); I4)/2()l8
$0 00
Special Conditions: Shall be in accordance with CORE section 253 Trees
Check By ed for Issuance
of Units: 3
("HIS PERMi F BECOMES NULL AND VOED EEWQRK OR CONSTMJCTION AEJTHORIZED ES NOT COMMENCED WITEEKN(1 NEOIVTHS, OR [F CONSTRUCTEON OR WORK ESSUSPENDED OR .—\BANDONDED FOR A PERIOD OF 6 MONTHS 9\F ANY TEME AFTER WORK ESCOM:’\-IENCED,
EHEREBY CERTIFY TH:—YFEHAVE READ A=.\D EKA=.V[fNED THIS '—\[’PLECATIOr.\E AND KNOW THE SAME T9 BE TREJE AND Receivetl CUE{[{ECT. .’~\,LE_PRO \z"LSl0NSOE LAWS AND ORDLNANCES (.E(1\,'ER‘\J{Nf} THIS U‘ PE OF WURK WILL BE COMPLEED W[Tl-i V» .E FHER SPl':7f'lF[ED HEREIN OR NOT, THE GRANTENG OF A PERMIT DOES NOT PRESUWE TO OWE :~\i.TE-IO Y TO V[OLz—\TE OR CANCEL THE E'RO\:"lS[ONS OF ANY OTHER ST+\TEOR LOCAL
http //www n/vnrc| net/iworq/permit/popL:pPermitEditLetterEditasp”sid=RCGBMFEGBPMAGKHKINIQMACMDBGO1&permitid=8757615&|etterid=6421& 1/
Page 25 of 84 THE PARKS & SHADE TRE R CO ESS OF THE CITY OF REHOBOTI-I BEA Notice of Appeal and Application for Administrative
Officeof CitySecretaty The undersigned heitzbygives notice of it request for an Administmtive Appeal
The following is an applioa?on made to Pmks & ShadeTree Contmisstonof the City of RehobothEeaclt on the 14 day of _August , 2o_1_8_. Location of affected property: 502 l.ee Rehnhnth Reach. DP 10071 A]JpljcaI1!’sName: Renee Richard._..snn yfgjljng Addfggg; §76lln1'nn\/illp Pnmi Kennett Qnnare, PA 10142 email: renee@anchorl,,ifeand?tcom Telephone Numbers: 6102462369 (Home) (omm) (Cell)
Rcproseritat.ive°s Name: Jeff Meredith -- Sussex Tree. lnc. lvlaiiingAddress: 20350 Nelson Drive Bridgeville, DE 19933 (Home) {Office} {Celt Telephone Numbers: 302.337.3346, , , 302.227.1939 } .Providedetailedinformation dcscribing tftte.a property ' [V K\'»)?-'-k< See attached proposal ?J\M..1/‘._ Kata?‘x
Please check at least one of the foliowing
D In the case of an applicatioii to: it i1t'all(i.l1”3}‘§or demolitionpermit or for appmvaI (‘tféi subdivision;the tree is locatedwithin 1§l¢':.I1C”1l31iiidab!e area of at given lot as itientifiod on the oo.r\reyfpi’oteA:tior11plmatingplati, provid.edti1atattemativesunder §253-35('E<”)have been considered; 1:] The tree is located witltinan existing or proposedpublic or utiiity compaxty light-of-way, and relocationof such right-ohwny or the use thereof is not reasonablypracticable; D The tree is located within an existing or Pm!” sed public enseanent, tztonnwnter management tract or facility, provided that only the minimum area reztsonafolynecessztry for the public serviceor use sheikbe oonstdered for purposes of determining whetlzertl.1e1't:.is.2<:.ec;est;ityto: tree remaval < Q 'l"hetree is locatedwhere it creams or wilt omits 3 material safetyor h.ea§t’t1 E2322rator nuis.:mcewith to spc/cl to existing or proposed stntctinres or veitictes.or pedcsuflan ro:1t<:sand sn<:§t E.:37,:l.27tt0? 1111353we is not innate to or commonly associatedwith the existenceof trees in genorai {for omtnpleg lightnjrlg, wet leaves on the ground during m.inst.orms); D '1‘he tree is located where it inteiferes with the ins;t:tllati.on,delivery or maintenance of proposedor existing utility services to the lot and rclowtion of such servicesis not reasonably pmcticabte, exeept that a ttigiier degree of necessity must be d€Il1()I1St2‘«‘1t€(lby the appiicantto the case of a historic nee; The tree is determiitcciby the City to ond€:2ltLSigl1li'ltl3X1‘{i}-’€iiS(‘3£1S(iti)sevemiy initmuior to
i’&?'l‘(IFortm/an1wI(l90z;t2() 1?.
Page 26 of 84 Provideadditionalinforma?on describing the grounds for appeal:
[3 Check here to con?rm you have included a (iiam in identifying tire tree proposedfor removal and the trees to lo \é Dat ‘i«\\\\ /«x Appcllant; M Fee Paid:
«:59; INSTRUCTIONS
(1) The Notice of Appeal and Application for AdmittistrativeAppeal Hearing must be ?led with the City Manager within thirty (30) days of the (late of the decision involving the grant or denial of an applicationfor a tree-removalpermitor1and~ciezxri.11gpermit, whicheveris the subject of the appeal.
(2) The ‘Noticeof Appeal and ‘Application for Adrninistrative Appeal Hearing, 21 $250.00 fee and all supportive documentation shall be prepared and delivered to the Building & "LicensingO?ice on or before thirty (30) days prior to the date of the appeal heartug.
(3) The following are provided as guidelines when ii the Notice of Apneal and Application for Administrative Appeal Hearing:
(a) State the gmmxds upon whichthe appeal is beimgmade.
(b) Identify the error upon which the appeal is based and the grottnds for reversal of the Building Ir:speC[0r’Sdecision.
(6) Provide a clear and accurate description of the propomworkor use.
((1) Deliver ten (10) copiesof supporting docurnentsfor (iiS!,1’ibE1ti0il.
FormslInM/090L120
Page 27 of 84 Page 28 of 84 ,»,v>._u Bethany (302) 539-5700 W ssex Tree InC . Su ’ Rehoboth (302)227-1980 16“ The Tree People Georgetown (302)856-9210 Fax (302)337-7746 www.SussexTreelnc.com admin@sussex(reeinc.I:om PR0 P AL August 29, 2018 Page 1 Proposal #: 471 07 Proposal Date: 7/17/2018 Renee Richardson Home: 576 UnionvilleRoad Office: Customer #.' 1991 7 Kennett Square, PA 19348 Mobile: 610-246-2369 Arborist: JKM Fax: Job Type.’ G renee@anchorlifeand?t.com Terms in Days: 15 Priority." Normal EnVModBy: JKM TD
Job Site: 1 County Route# Reho/Lewes 508 Lee Street Phone1 Map School View Phone2 SubDiv. Rehoboth Beach, DE 19971 Disc./Adj. |temTotal Item# Quantity Description of Services UnitPrice Item Charge Silver Maple 895.00 -50.00 $845.00 Remove broken 12" caliper limb on the back side of the large Silver Maple on the left side of the garage. Chip and remove debris.
Silver Maple 2,095.00 -150.00 $1,945.00 Remove 27" caliper Silver Maple on the left side of the garage. Chip and remove debris. Cut stump low to the ground.
*The tree has signs of severe cavity and should be removed.
Silver Maple 395.00 $395.00 Grind Silver Maple stump and all apparent surface roots. Fillgrindings into hole and rake smooth.
*Pricing contingent on performing at the time of the removals.
Silver Maple 125.00 $125.00 City of Rehoboth Tree Removal Permit Fee.
*Fee is required wether permit is approved or not.
Silver Maple 1251.00 500.00 $500.00 A 38 ton crane rental is required to remove the tree(s) itemized above.
*Rate includes cost for rental from portal to portal. *The use of a crane willprovide the safest most efficientproposal.
*We have included our current discount promotion. *We will contact Miss Utility to locate any underground utilities in the area of the removal
20350 Nelson Drive Bridgeville, DE 19933
Page 29 of 84 C Bethany (302) 539-5700 ’ Rehoboth (302)227-1930 "The Tree People" Georgetown (302) 356-9210 Fax (302) 337-7746 www.SussexTreelnc.com [email protected] PRP0 AL August 29, 2018 Page 2 Proposal #: 47107
4,010.00 Sussex Tree is NOT RESPONSIBLE for damage to underground cables, wiring, Proposal Sub‘l‘otaI: irrigation, septic, etc, if we are not notifiedofiiems in advance. Should you have Discount Amount: 0.00 any questions, or ifyou wish to make any changes to this Proposal. please do Proposal Total: $3,810.00 as possible to not hesitate to contact us. Please sign and return as soon Required Deposit: 0.00 schedule work. Payment Terms: Due upon Completion. The balance due and owing on youraccount after 15 days shall bear a service charge of 2% per month (24% per annum) on the unpaid balance. You will be liable for any Collection Fees andlor Attorney Fees that incur due to nonpayment of account. A 3% conveniencecharge added Je?rey K Merecmn to all Credit Card Payments. Vice President, CTSP Signed: Date:
20350 Nelson Drive Bridgeville, DE 19933
Page 30 of 84 Parks & Shade Tree City of Rehoboth Beach Commission 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 www.cityofrehoboth.com Rehoboth Beach, Delaware 19971
PUBLIC NOTICE
THE REHOBOTH BEACH PARKS & SHADE TREE COMMISSION Monday, October 22, 2018; 2:00 p.m.
Notice is hereby given that an administrative appeal hearing shall be conductedby the Rehoboth Beach Parks & Shade Tree Commission pursuant to Chapter 253 of the Municipal Code of the City of Rehoboth Beach on Monday, the 22nd day of October 2018 at 2:00 p.m. in the City Hall Commissioners Room on the second ?oor, 229 Rehoboth Avenue, Rehoboth Beach, Delaware. The appeal hearing has been requested by John McKenna, Winifred McKenna and Mary Ann Satain, owners of the property located at 318 Country Club Drive pursuant to Section 253-36 of the Municipal Code of the City of Rehoboth Beach, and pertains to an appeal of a denial of a tree removal application for a 56 inch caliper tree and/or a determination of a fee in lieu of mitigation.
All persons are hereby notified to be present and to attend the determination of such hearing by said Commission.
Such hearing may be adjourned from time to time by said Commission without ?irther notice.
All interestedparties are invited to attend.
Issued this 1st day of October 2018.
BY PriscillaSmith, Chair
zamw
Page 31 of 84 Building & Licensing City of Rehoboth Beach 229 Rehoboth Avenue Telephone 302-227- P.O. Box 1163 Fax 302-227-45046181 Rehoboth Beach, Delaware 19971 www.cityofreh0b0th.co1n
MEMORAN UM
To: Parks and Shade Tree Commission From: Elisabeth Lingo, Arborist Date: October 12”‘,2018 Re: 318 Country Club Dr.
The following is the report of the City Arborist with regard to the above referenced appeal that is to be heard before the Commission on Monday, October 22'“,2018.
The applicant first submitted a tree removal application on July 25”‘,2008 to remove a specimen maple tree, which was denied. Most recently, an application was submitted on July 23”‘,2018 to remove the same maple which is 56” caliper and approximately 150 years old. There is (1) additional tree on the property: a 10” caliper cherry.
From an onsite inspection, it was determined that the maple tree is in good health. Additionally, there was no visible damage to the home’s foundation. Silver maples do have a vigorous root structure and a tendency to develop surface roots. Mulch and minor landscaping are often recommended actions to address those surface roots. Other roots near a structure or sidewalk are often cut or surrounded with a root barrier. All these solutions are commonly practiced arboricultural techniques.
If the maple tree is approved for removal today, there would be a planting requirement of 49” of mitigation and (2) 3” caliper trees for minimum density, or approximately 18 1/3 trees total.
Page 32 of 84 23 Building & Licensing both Beach 229 Rehoboth Avenue ii MC’: 302-227-6181 PO. Box 1163 T Fax 302-227-4504 Rehoboth Beach, Delaware 19971 www.citvofrehoboth.comE
NO TREE PERMIT WILL BE PROCESSEDWITHOUT THE ACCOMPANYING TREE SITE PLAN. NEW CONSTRUCTIONOR ADDITIONTREE PERMITS SHALL REQUIREA TREE PROTECTION PLAN ACCORDINGTO CORB CODE § 253-32.
Job Address Date 3;: CO oumr cur wetgwweomasgg 7=;zz-/8 ‘ Owner M”“‘"”‘”"“ ""3 '°"‘°"“" \ mqe~u,§°g4”‘2?WaAL2sz/WE.Am °””"”"T Phone ('1,-‘if(”°7?',’_0r'*’,gf: Emailuwzcxsuunweec:~m..ca;q Contractor Mailing Address son: cnemsrkau COMPLETEm?cwub Rehoboth License # Phone Number Email /(Q24! JOQ-' 7??-22.72,? wuw. or!PL£‘7E TREE c.9£.u5' Description of Tree(s) Proposed for Removal (quantity, species, diameter, location) 1 Jar” bay /m__1e Mw_'7/ .s'rt7L.<.7z.u5e mu-us _p/4Q§c_72Y 5£'fIlAID HOME Reason for Removal of Tree(s) 4/0/$3M’-‘.E 7? EX/ST/N6 .S’I’RUC.'.7v££S‘ SAFE?!’ AND /1 Arm ##2##» 70 Pro-rag # M£ .<‘ Of Trees to Be Removed # Of Trees to Remain On Property “ Of Trees in Front Yard Valuation of Work .1 L 35:2: ,j;Zj,’°“£’ Tree Survey Included: Yes “ No Proposal Included: Yes No 1/ EIWAM7/aw I understand that the trees at the address above may only be removed if found to be within the criteria established by the Comprehensive Tree Ordinance of the Code of the City of Rehoboth Beach, Delaware and that by signing the form, I am certifying that the tree(s) to be removed is (are) solely on my property.
This application shall only be used when applying for a tree removal permit under the provisions of the Comprehensive Tree Ordinance of the Code of the City of RehobothBeach. @ S Agent Print Name Date Tezyw /0 /"/‘K "Nu; 7 ' ~/P /1"4"W/v’-IJI/M3 Mn an? ’ s‘ 2% ,Ow rsHm Name ’ ate g:?£ T ‘/77 yw//N. rFz?.'~"Z‘i3. 277CK€.A’z.a'~$‘7‘7/37?. S'- 3/”_/37
Received By Date Time
Arborist Approval Date
Page 33 of 84 REE PERMIT APPLICATION
229 RehobofhAuenue, PO. Box 1163 RehobothBeach,Delaware 19971 (302) 227-4504 & Fax 02 227-3336 l Job Address Date
Lot ’ Block Tax Parcel Number
2 Owner Mailing Address Phone I
J Contractor Mailing Address Phone Number Rehoboth LicenseA?
4 Describe Work
5 if Of Trees To Be # Of Trees Remain On Property ln FrontYard
of work Survey included osal Included
YES NO YES NO
I understand that the trees at the address above may only be removed if foundto be within the criteria establishedbytheComprehensive Tree Ordinance of the Code of the Cit): Of Rehoboth Beach, Delawareand that by signing this form,»~£~amcertifjiiiigthat the Lree(s)to be removed is (are) solely on my property.
This application shall only he used when applying for a tree removal permit under the provisions of the ComprehensiveTree Ordinanceof the Code ofthe City of Rehoboth Beach.
N0 TREEPERMITWILIZBE PROCESSEDWITHOUTTHE REQUIREDSITETREE PROTECTIONPLAN. _ALL NUMBERED SPACES S LL BE FILLED lN COM?LETEL‘{ IN ORDER FOR APPLICATION TO BE PROCESSED. ,_.¢é4r;«7//¢_4:.w Signature of Contractoror Authorized Agent Name Date74/292:‘
Signature ol'Property Owner Print Name Date
Date Time
Arborist Approval Date
Page 34 of 84 1U/Jo/zU1 25 Benefits of your tree
Home Calculate another tree Nation.a1Tree Benefit Caicuiator
Overal Benefits Storm ‘!\_Iar.er ?rouert\I /aiue Energy Air Quality About the Model
This 45 inch Siiver mapie provides overall benefits of: $326 every year.
While some functional benefits of trees are well documented, others are difficult to quantify (e.g., human
"' specific vMD: 7|3 social and communal health). Trees‘ geography, climate, and interactions with humans and infrastructure is highly variable and makes precise calculations that much more difficult. Given these complexities, the results presented here should be considered initial approXimations—a general accounting of the benefits produced by urban street—side plantings.
$1 D133 $15 l 2 Bene?ts of trees do not account for the costs associated $16 25 with trees‘ long—term care and maintenance. -523139 $2? 68 Silver maple $326 Breakdown of your tree's bene?ts AC9-FS5CCh3|'lnU|T1 Click on one of the tabs above for more detail
Ca 635‘
10/15/2013 Benefits of your tree
Home Calculate tree
Cveral -Senefits >ror.1ert\I Value energy Air )I.-aIii:=-' 20.1 About the «meal
C V|rIIe=n;an~',ion an Evaporation fmnsplia?on
Trees act as mini—reser\/oirs, controlling runoff at the source. Trees reduce runoff by:
!nDer.'r.-was 1 -. w Intercepting and holding rain on leaves, branches and bark n Increasing infiltration and storage of rainwater through the tree's root system a Reducing soil erosion by slowing rainfall before it strikes the soil
The National Tree Bene?t Calculator was conceived and developed by nON
Page 35 of 84 Parks & Shade Tree Commission 229 Rehoboth Avenue P.O. Box 1I63 Rehoboth Beach. Delaware 19971
TI-H43PARKS & SHADE TREE COMMISSI OF THE CITY OF REHOBOTH BEACH Notice of Appeal and Application for Administrative Appeal Hearing
The undersigned hereby gives notice ofa request for an Administrative Appeal Hearing:
The following is an application made to Parks & Shade Tree Commission ofthe City ofRehoboth Beach on the 9th day of September 20 18
Location ofa?igcted property COUl'ltl'y Drive Rehoboth Beach Delaware Applicanvs Name; John McKenna.Vl?nifred McKenna.MarvAnn Sartain Mailing Address; 1513 Crofton Parkway Crofton.Maryland 21114 (John &Winifred McKenna)
8604 Wanderino Fox Trail llnil 201 Odenlnn Man/land 21113 (Marv Ann Sartain) Telephone Numbers ; (301) '251'0205 meme) (410)'250‘135° (omcc) (z4o)—sa7~ess1 (Cell) Representative’s Name: N/A Mailing Address:
Telephone Numbers: (Home) (Office) (Cell) Provide detailed information describing the aifected property and tree(s): One 56.5 inch DBHMassive Multi-Stem Silver Maple in rear yard of residence located at 318 Country Club Drive, Rehoborh, Delaware is subject of Tree Removal Permit as tree is a material safety hazard, nuisance with respect to existing structures and pedestrian routes. See attached pemit application with photographs and factual statement.
Please check at least one ofthe following:
El In the case of an application for a building or demolition permit or for approval ofa subdivision,the tree is located within the net buildable area of a given lot as identi?ed on the tree survey/protection/planting plan, provided that alternatives under §253-35(F) have been considered; Cl The tree is located within an existing or proposed public or utility company right-of-way, and relocation of such right-of-way or the use thereof is not reasonably practicable; CI The tree is located within an existing or proposed public easement, stormwater management tract or facility, provided that only the minimum area reasonably necessary for the public serviceor use shall be considered for purposes ofdetermining whether there is necessity for tree removal; IE The tree is located where it creates or will create a material safety or health hazard or nuisance with respect to existing or proposed structures or vehicles or pedestrian routes and such hazard or nuisance is not innate to or commonly associated with the existence of trees in general (for example, lightning, wet leaves on the ground during rainstomas);
Page 36 of 84 El The tree is located where it interferes with the installation, delivery or maintenance of proposed or existin utility services to the lot and relocation of such services is not reasonably practicable, except that aghighe degree of necessity must be demonstrated by the applicant in the case of a historic tree; r The tree is detemrined by the City to be dead, signi?cantly diseased, severely injured or in danger of falling; The tree prevents reasonable development of a lot that is otherwise permissible under City ordinances However, a tree-removal permit shall not be granted where the applicant has failed to design and. locate the proposed improvements, demolition or subdivision so as to minimize the removal of trees consistentwith the permitted use of the lot and shall be granted only after ?lll consideration of alternatives under§253-35.
Provide additional infomration describing the grounds for appeal: See attached Notice of Appeal setting forth grounds for appeal, said notice is incorporated herein
M Check here to con?rm you have included a diag ntifying tree prop as for removal and the trees to remain on the lot.
Date: September 9, 2018 if Aiipéllanl v Q ? ’ Fee Paid: 2 .§
Up 9203 A/My INSTRUCTIONS
(1) The Notice of Appeal and Application for Administrative Appeal Hearing must be ?led with the City Manager within thirty (30) days of the date of the decision involving the grant or denial of an application for atree-removal permit or land-clearing permit,whichever is the subjectof the appeal.
(2) The Notice of Appealand Application for AdministrativeAppealHearing, a $250.00 fee and all supportive documentation shall be prepared and delivered to the Of?ce of City Secretary at 229 Rehoboth Avenue, Rehoboth Beach, DE on or before thirty (30) days prior to the date ofthe appeal hearing.
(3) The following are provided as guidelines when ?ling the Notice of Appeal and Application for Administrative Appeal Hearing:
(a) State the grounds upon which the appeal is being made.
(b) Identify the error upon which the appeal is based and the grounds for reversal of the Building ' Inspector’s decision.
(c) Provide a clear and accurate descriptionofthe proposed work or use.
(d) Deliver ten (10) copies ofsupporting documents for distribution. '
Page 37 of 84 Page 38 of 84 Page 39 of 84 Building & Licensing City of Rehoboth Beach 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 Fax 302-227-4504 Rehoboth Beach, Delaware 19971 www.cityofrehoboth.com
NO TREEPERMIT WILL BE PROCESSEDWITHOUT THE ACCOMPANYINGTREE SITE PLAN. NEW CONSTRUCTIONOR ADDITIONTREEPERMITS SHALL REQUIREA TREE PROTECTION PLAN ACCORDINGTO CORB CODE § 253-32.
Job Address Date 3/; C0 (M1770 (34. mm I IE;A>£xm6’oTHAwc:54 7123-/8’ Owner JOHN‘LW/AMI/E MailingAddress 71PMP?kdéw II /‘I45/V41 KY 0/WV$437/3741 FHp. Phone ' R/M5‘ J I.. ._b‘ ‘. Email «/me/ This application shall only be used when applying for a tree removal permit under the provisions of the Comprehensive Tree Ordinance of the Code of the City of Rehoboth Beach. ‘ xgna re 0 a or Agen! Ptint Name Date ‘r 3.. I ” % ‘Q "/P mf4§”4fei’5‘3’2"?;,”:’”7:; .2 0 5/ :7 15:-imName j F%?r Ad‘ iw/~,rF/L95 S. /77We/saw 7 its5//9’ Received By Date Time Arborist Approval Date Time Page 40 of 84 ‘5<$ m‘7~~ 5 \ Q U 4‘ N R‘ \ /-'~EAvcE ave.’ 0.37 I 6.6 23. 92 a.z.s ‘LU . / sr)/.. .m m Pg‘zed/we V» gt’ 3 on/ELL//V6 ? 3‘Q 8.31’ lo gl M» g: 23.86 33:74" U) "9 R.’ ?&./7 /3.0!’ Page 41 of 84 $'/°E/}D/Al€- /€007: /)ae£ E/Uaeo/rc#/A/c~ NE Ie?aagir wx/95¢ FENCE /M/1) oma I944 ADJU/Ar/Ale Lr91UD0aJ/XJER5‘,9,em9e775g~ Page 42 of 84 ______...——- 458"‘ N7’ M/-‘r1I/?t" """'" an\7.4o '4‘¥% 40 437" e‘ /3 23.92’ //.52’ E ‘ \ U ~ H ,6 Q Q "3 V ‘I 0 ‘L ’ x/. 2.31 II / 0’ 3 Page 43 of 84 4 ;.\4D54 ; \/AA 9/7/‘(A657 7'0 .S'#Ep 546:3 AWD PW,’ Ta S. Cm’ 55” <5’/V R007?‘ P.€£v/ca: /47-72;,-,,o;;¢ 70 can‘ R0073‘ Au» .972/> D??/B‘ as /UEFFEC7-/VE’ https://mail.google.com/_/scs/mail-static/Jj s/k=gmail.main.en.EWKsbuuUcyk.O/am=Xn4... 7/23/2018 Page 44 of 84 "§--‘:i~.'._«. $,9'Ep .S“L?8- }’E_p. %£y D/M; . 7 SHED /5 oF/=‘ 5'4./£6’ 3}’ ,€¢907:r‘.' https://mai1.go0gle.com/_/scs/mail—static/_/js/k=gmail.main.en.EWKsbuuUcyk.O/am=Xn4..7/23/2018 Page 45 of 84 .Lu5v1U1 1 SPREAD/M4 C ?t/-S_'/JU6 D/;w&c~'-E -— $29»9a/ERT mvo. wffT‘E&_.I’/f‘E.c'. 35/Nc-3- PM/,./,5» Peon /7:90:55 5/Mwsk A/up DECK amass» dwszp .97 /@071” https://mail.google.com/_/scs/mail-static/_/js/k=gmail.main.en.EWKsbuuUcyk.O/am=Xn4... 7/23/2018 Page 46 of 84 R007’ Ex PAN s/a/V C-40.?/NGL zmtme-5 To $#aw£1Q /HUD SPREAD/U6—-m c/upsg BLOCK‘ F0wubA7‘/muoF— /720:5 . PREV/0ur ?7‘7‘EHp73- Cu?’ 7?’ /<2oo7:r:4/Kw sma omega wan;-g¢T,./5 https://mail.google.com/_/scs/mail-static/_/js/k=gmai1.main.en.EWKsbuuUcyk.O/am=Xn4...7/23/2018 Page 47 of 84 Page 48 of 84 “?rnr-=~~ ,.,~;&| A \ s77e/ M242 pars»: mesa w?cxxua 455/15 /I/Toe 77?/P/Eb 9427'/c R4)’ /M//J wag (>5 (SE5 lu//Eu /-/dl-I LUAJE/Q />723 mwu' Page 49 of 84 Page 50 of 84 Page 51 of 84 ma rafton , MD2 Snre emove debri ougn Big Wo oved. is Client responsible for identifyingall known concealed structures. irrigation systems. underground lighting,pipes or utility Tree lines.Complete Care, lnc..shall not be held liable for damage to any undisclosed concealed hazards includingbut not limitedto unmarked pipes, concealed structures or utilities. Page 52 ofH 84 m IN THE PARKS & SHADE TREE COMMISSION OF THE CITY OF REHOBOTH BEACH JOHN P. MCKENNA WINIFRED S. MCKENNA MARY ANN SARTAIN 318 COUNTRY CLUB DRIVE EGEIVE REHOBOTH BEACH, DELAWARE APPELLANTS OCT19 V Of?ceof CitySecretar CITY OF REHOBOTH BEACH, APPELLEE MEMORANDUM Appellant Property Owners, John P. McKenna, Winifred S. McKenna, and Mary Ann Sartain (hereinafter “Property Owners”) submit the following Memorandum in support of the Notice of Appeal ?led herein from the decision of the Department of Building & Licensing of the City of Rehoboth Beach, Delaware (hereinafter “the Department”) issued on August 15, 2018: A. Proceedings in the Administrative Agcng On July 23, 2018, the Property Owners submitted to the Department an Application for Tree Removal Permit including 12 separately marked exhibits. On August 15, 2018, the Department issued a letter attached hereto as Exhibit 1 stating, in pertinent part, “Upon review of your application for a tree removal permit for the 56.5” DBH maple tree received July 23, 2018, it’s been found that it does not satisfy the criteria to issue a tree removal permit. . .”. On September 10, 2018, the Property Owners ?led a Notice of Appeal and Application for Administrative Appeal Hearing. Pursuant to Section 253-36 of the Code of the City of Rehoboth (hereinafter “the Code”), the instant appeal is an appeal on the record as opposed to a de novo appeal. B. Arguments in Suggort ofGrounds for Aggeal 1. The Department violated Section 253-31 of the Code and denied Property Owners their rights to due process under the Constitution of the United States and the Constitution of Delaware. Section 253-31 of the Code entitled “Tree Survey Inspection” states in pertinent part “Following the receipt of the completed application for a tree removal permit the City Arborist shall schedule and conduct an inspection of the proposed development site within such period of time as may reasonably be required to ******** *** Page 53 of 84 verify the information contained on the application. The applicant or his designee shall be advised as to the date and time of the inspection and given an opportunity to participate. Following inspection, the City Arborist, consistent with the purpose of this Article, shall advise that applicant in writing of any recommended changes in the applicant’s proposed tree removal, protection, or replanting plans.” The obligations imposed upon the Department by Section 253-31 of the Code are mandatory, and the Department acts unlawfully when the Department omits, modi?es, or denies property owners the rights secured to property owners by Section 253-31 of the Code. The mandatory nature of the duties imposed upon the Department by Section 253-31 of the Code are plainly stated by the use of the word “shall” in Section 253-31. The word “shall” is de?ned both in Section 253-24 of the Code entitled “De?nitions and Word Usage” as well as in Section 1-11 of the Code entitled “Rules of Construction; De?nitions”. Section 1-11 of the Code states: “Shall — the word “shall” is mandatory.” Section 253-24 (B) (4) entitled “De?nitions and Word Usage” de?nes the word “shall” in Subsection C as “The word ‘shall’ is mandatory and not discretionary. The word ‘may’ is permissive.” Section 253-31 of the Code entitled “Tree Survey Inspection” grants to property owners an absolute right to a hearing with the Department as an essential and critical stage in the consideration by the Department of an application for tree removal permit. The Department acts unlawfully in denying an application for tree removal permit when it denies the property owner the fundamental right to a hearing granted to property owners under Section 253-31 of the Code. In the Application for Tree Removal Permit for the property at 318 Country Club Drive, the Department violated Section 253-31 of the Code when it denied or omitted the Property Owners’ right to a hearing under Section 253-31 of the Code. The Department has no legal authority to deny an application for tree removal permit unless it complies with the express provisions of Section 253-31 of the Code, and in this case it is without dispute that the Department acted unlawfully by its failure to conduct the hearing provided under Section 253-31 of the Code. In so denying the essential and critical hearing for consideration of the Application for Tree Removal Permit, the Department acted in contravention of the Code when it: 1. Failed to schedule and conduct an inspection of the proposed site in the presence of the property owner; 2. Failed to advise the property owner as to the date and time of the inspection; 3. Failed to give the property owner an opportunity to participate; 4. Failed to conduct a public hearing to allow other interested parties including neighbors to participate in the hearing; and 5. Failed to conduct a public hearing in which witnesses or experts could appear on behalf of the property owners. By its unlawful actions, the Department violated the Property Owners’ due process rights under the Constitutions of the United States and the State of Delawareas well as the statutory rights to due process under Section 253 of the Code. In Vincent v. Eastern Shore Markets, 970 A. 2d 160, at 164-165 (2009), the Supreme Court of Delaware stated: Page 54 of 84 “. . .in the exercise of quasi-judicial or adjudicatory administrative power, administrative hearings, like judicial proceedings, are governed by fundamental requirements of fairness which are the essence of due process, including fair notice of the scope of the proceedings and adherence of the agency to the stated scope of the proceedings.” “Due process, unlike some legal rules, is not a technical notion with a ?xed content unrelated to time, place, and circumstances; rather it is a ?exible concept which calls for such procedural protections as the situation demands. As it relates to the requisite characteristics of the proceeding, due process entails providing the parties with the opportunity to be heard, by presenting testimony or otherwise, and the right of controverting, by proof, every material fact which bears on the question of right in the matter involved in an orderly proceeding appropriate to the nature of the hearing and adopted to meet its ends. Further, due process requires that the notice inform the party of the time, place, and date of the hearing and the subject matter of the proceedings.” See also Matthews V. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Fuentes v ' Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); Phillips V4 Delhaize America hi, 2007 WL 2122139 (Del. Super. Ct. 2007); Formosa Plastics Corporation v. Wilson, 504 A. 2d 1083 (Del. 1986). 2. The Department violated Property Owners’ rights to due process and notice by failing to comply with Section 253-30 D (7) and Section 253-31 of the Code. In considering an Application for Tree Removal Permit, the Department is obligated under Section 253-30 D (7) of the Code to set forth ?ndings of facts as to the existence of the criteria for the issuance of a tree removal permit, and Section 253-30 D (7) provides in pertinent part: “. . . if the permit is not issued, the City shall state in writing the reasons for denial and advise the applicant of any resubmission requirements or appeal remedies available. . .” Further, Section 25 3-31 also obligates the Department to provide information to the property owner with regard to a denial of a tree removal permit. Speci?cally, Section 253-31 states in pertinent part: “. . . following inspection, the City Arborist, consistent with the purpose of this Article, shall advise the applicant in writing of any recommended changes in the applicant’s proposed tree removal, protection, or re-planting plans.” In its Application for Tree Removal Permit in this case, the Property Owners speci?cally set forth grounds for the removal of the tree in question under Section 253-30 A (2) (a) (4) in that the tree constitutes a nuisance to existing structures as well as a safety and health hazard to pedestrian routes on the premises. Further, the Application for Tree Removal Permit was Page 55 of 84 supported by substantial evidence to support a ?nding that the aforesaid criteria for the issuance of a tree removal permit existed in this case. In the Department’s letter of August 15, 2018 in which the Department denied the requested issuance of tree removal permit, the Department violated Section 253-30 D (7) when it failed to comply with the requirements of the Code that it set forth in writing the reasons that the Application for Tree Removal Permit failed to set forth facts that would satisfy the criteria for the issuance of a tree removal permit, speci?cally that the subject tree presents a nuisance to existing structures and is a safety and health hazard to pedestrian routes. The Department failed to address the submissions in the Application for Tree Removal Permit constituting substantial evidence that the tree in question is causing signi?cant and material damage to existing structures on the premises owned by the Property Owners including a permanent shed, a shower attached to the house and water pipes attached to the house, as well as a concrete pad upon whic an HVAC unit rests. In essence, the Department completely failed to address the key issueshin this matter speci?cally the criteria for the requested issuance of the Tree Removal Permit. The correspondence of August 15, 2018 from the Department to the Property Owners contains no recital of facts upon which the Department’s decision to deny the issuance of the permit is based. Further, the Department violated Section 253-31 of the Code when the City Arborist failed to advise the Property Owners in writing of speci?c recommended changes to the applicant’s proposed tree removal. Instead, the Department through the letter of August 15, 2018 merely quotes from Sections 253-26 and 253-35 (E) and (F) of the Code without making any reference to the speci?c physical conditions existing at 318 Country Club Drive, or the required recommendations for changes in the Property Owner’s Application for Tree Removal Permit for the subject tree. The Department’s letter of August 15, 2018 is wholly de?cientin complying with the mandatory requirements of Sections 253-30 D (7) and 253-31. In denying the Property Owners’ Application for Tree Removal Permit without complying with these speci?c mandatory provisions of the Code, the Department acted unlawfully and in violation of the Code. The action of the Department in denying the Property Owners’ Application for Tree Removal Permit carmot be sustained based upon the absence of any factual ?ndings in the letter of August 15, 2018. In State Dept‘ of Labor v. Medical Placement Sen/ices Inc., Del. Super., 457 A. 2d 382 (1982), Aff’d Del. Supr., 467 A. 2d 454 (1983) and Public Water Suggly Co., v. DiPasguale , 735 A. 2d 378 (1999), the rule governing the appellate review of administrative agencies’ determinations is discussed. In those cases, the courts noted that in reviewing the decision of an administrative agency the court must determine whether the agency’s ruling is supported by substantial evidence and free from legal error. In this case, the record of the proceedings in the administrative agency consist of the Application for issuance of the Tree Removal Permit together with the attachments and the letter of August 15, 2018. Since the Department failed to comply with its obligations for an administrative hearing in the formof a tree survey inspection, no other facts exist in the record to support any ?nding of fact other than those facts submitted with the Application for Tree Removal Permit. The Application for Tree Removal Permit contains abundant and substantial evidence to support the ?nding thatthe tree roots in question have and are causing substantial damage to existing structures on the house including a permanent shed, an outside shower attached to the house and an HVAC unit pad. Further, there is more than abundant evidence to demonstrate that the extensive network of roots on the surface Page 56 of 84 Page 57 of 84 submission since with regard to the submission of material to the Parks & Shade Tree Commission in this appeal, Section 253-36 provides that the appellant may ?le additional material and no speci?c deadline is set forth. In their Notice of Appeal, the Property Owners have set forth the speci?c grounds of alleged error on the part of the Department in the consideration of the Application for Tree Removal Permit in this case. The consideration of any additional material received from the Department which has not been disclosed to the Property Owners would be in violation of both the statute and settled state and federal law. In Pusey v. Delaware Alcoholic Beve rage Control Commission , 596 A. 2d 367 at 370-371 (1991), the Supreme Court of Delaware quoting from the United States Supreme Court in Greene v. McElroy, 360 U. S. 474, 496-97, 79 S. Ct. 1400, 1413-14, 3 L. Ed. 2d 1377 (1959): “Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact ?ndings, the evidence used to prove the government’s case must be disclosed to the individual so that he has an opportunity to show it is untrue. . . . We have formalized these protections in the requirement of confrontation and cross examination. They have ancient roots. They ?nd expression on the 6”‘Amendment which provides that in all criminal cases the accused shall enjoy the right ‘to be confronted with the witnesses against him’. This court has been jealous to protect this right from erosion. It has spoken out not only in criminal cases, but also in types of cases where administrative and regulatory actions were under scrutiny.” Thus under the provisions of the Code governing the proceedings of the Parks & Shade Tree Commission and established precedent under state and federal law, the Commission is prohibited from considering any material received from the Department and the City after September 25, 2018, the date on which the record in this case was closed. 4. The Department violated Section 253 of the Code by denying the Property Owners’ Application for Tree Removal Permit in this case due to “minimum tree density requirements.” In the letter of August 15, 2018, the Department in an extremely de?cient ?nding apparently concluded that the tree removal permit should be denied as it would constitute a violation of the minimum tree density requirements under Section 253-26 of the Code. Section 253-26 of the Code establishes certain minimum tree density requirements for properties located within the limits of the City of Rehoboth. The requirements are stated in various sections and applied to varying situations. In its letter of August 15, 2018, the Department has denied the Property Owners’ Application for Tree Removal Permit since the removal of the tree in question from the property located at 318 Country Club Drive would result in a failure of that property to meet the minimum tree density requirements of Section 253-26 of the Code. The Department erred in denying the Property Owner’s Application for Tree Removal Permit for failure to comply withthe minimum tree density requirements since the Code has never required and does not now require the property at 318 Country Club Drive to comply with the minimum tree density requirements of the Code. Section 253-26 (E) of the Code provides in Page 58 of 84 Page 59 of 84 Page 60 of 84 Page 61 of 84 Page 62 of 84 Code in requiring “reasonable efforts” to be undertaken by the Property Owners at 318 Country Club Drive because the express provisions of Section 253-35 (F) do not apply to the “grandfathered” properties referenced in Section 253-26 (A). Section 253-35 (F) explicitly states: “Where a property must comply with the density requirements or other requirements for tree replacement under this Article and the property is not suitable for onsite mitigation, the property owner or permit applicant shall, with City approval, provide for use of a site on city public lands providing that the applicant furnishes all necessary services incidental to such mitigation on public property, including but not limited to the funding of tree maintenance and labor.” Section 253-35 (F), by its express and unambiguous provisions, applies only to properties which must comply with the tree density requirements, however, the property at 318 Country Club Drive is exempt from those tree density requirements until certain new construction is undertaken by the Property Owners or until the Property Owners convey the property to new owners. Thus in this case even though the Property Owners have taken reasonable efforts to save the protected tree by the cutting of the roots, the “reasonable efforts” relied upon by the Department in the letter of August 15, 2018 are inapplicable to the property at 318 Country Club Drive. The Department’s denial of a tree removal permit for failureto undertake the wholly unexplained and unspeci?ed “reasonable efforts” referenced in the letter of August 15, 2018 is yet another violationof the statute by the Department, and the denial of the permit for the tree removal at 318 Country Club Drive is unlawful. 6. The provisions of Section 253-36 (C) (1) providing for a fee in lieu of mitigation is facially unconstitutional and as applied to the subject property as constituting an unlawful taking of property without compensation in violation of the 5”‘Amendment to the Constitution of the United States and the Delaware State Constitution. In the public notice issued in regard to the hearing of the appeal in this matter, the City has referred to the possibility of an imposition of a fee in lieu of mitigation in regard to the Property Owners’ Application for Tree Removal Permit at 318 Country Club Drive. The provision of Section 253 of the Code providing for the taking of a “fee in lieu of mitigation” from the Property Owner implicates the unconstitutional Exactions Doctrine established in a trilogy of United States Supreme Court cases: Nollan v. California Coastal Commission, 483 U. S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987); Dolan v. City of Tigard , 512 U. S.374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), Koontz v. St. John’s River Management District, 570 U. S. 595, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013). In Golf Course Assoc. LLC v. New Castle County, 2016 W. L. 1425367,the Superior Court, in discussing what has become known as the Nollan-Dolan-Koontz trilogy of Supreme Court cases, summarized succinctly the signi?cant points to be derived from the trilogy of cases: “Several relevant points can be synthesized from the Nollan-Dolan-Koontz trilogy: Page 63 of 84 Page 64 of 84 interest such as a bank account or a parcel of real property, a per se “takings” approach is the proper mode of analysis under the Court’s precedent . . .” “. . . This case implicates the central concern of Nollan and Dolan: The risk that the government may use its substantial power and discretion in land use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the speci?c property at issue, thereby diminishing without justi?cation the value of the property.” In the case of the fee in lieu of mitigation provided under Section 253-36 of the Code, the City government through the exaction of money in the form of a mitigation fee is unconstitutionally taking the Property Owners’ property, money, since there is no shown rough proportionality between the effects of the proposed new use, the removal of a single tree, of the speci?c property at issue. Instead, the money is exacted to fund other projects off site from the speci?c property in question, and this fee constitutes an unlawful taking in violation of the 5"‘ Amendment of the Constitution of the United States. 7. The fee in lieu of mitigation imposed under Section 253-36 (C) is an unlawful tax not authorized by the charter of the City of Rehoboth Beach and by Section 2001 of Title XXII of the Delaware Code Annotated. Section 2001 of Title XXII of the Delaware Code Annotated provides in pertinent part: “(a) Every municipal corporation in this state, regardless of population, shall only have the power to impose, levy, assess, or collect a tax of any kind whatsoever, as expressly authorized in its municipal charter or this title.” Section 29 of the Charter of the City of Rehoboth Beach sets forth the enumeration of powers of the municipality, and in Section 29, the authority of the City to levy taxes is stated in subsections 30 through 33. In Camden-Wyoming Sewer & Water Authoritvv. Town of Camden , 2017 W. L. 4119045, the court considered the authority of the municipality in that case to exact a $27,000 charge from a sewer and water authority for a building permit, and one of the issues in the case was whether the $27,000 charge constituted a “tax” or a “fee.” Even though the municipality had characterized the $27,000 charge as a “fee,” the court concluded that the charge was in fact a tax and in so ruling, the court stated: “It is often dif?cult to determine whether the government’s exaction of a sum of money constitutes a “fee” or a “tax”. Our superior court’s opinion in City of Wilmington V. Mc Dermott , however, provides meaningful guidance here “A tax is a pecuniary burden, exacted by legislative authority, upon individuals or property to support the government. A tax is an enforced contribution, not a voluntary payment. . .” and is imposed “without reference to peculiar bene?ts to particular individuals or property.” Page 65 of 84 “A fee, by contrast, is a pecuniary exaction the “primary object” of which is to regulate “relative rights, privileges or duties as between individuals,” or otherwise, to protect “the safety of the public. . .” Fees function to offset the incremental costs (to the government) of “regulating” the fee payer or policing particular safety risks associated with the fee payer’s conduct.” “That the government labels a pecuniary exaction a “fee” does not make it so. For instance, if the amount of a permitting “fee” is “grossly disproportionate” to the government°s direct and indirect permitting costs, the “fee” then “becomes a tax. . .” More generally, if there is no “direct relationship between the (fees) charged and either a service received by the fee payer or a burden to which (it) contributes,” then a purported “fee” is more properly characterized as a “tax”. This follows from McDermott’s conception of taxation; namely, that taxes are compulsory pecuniary exactions from individuals or property, imposed in order to support the government and “without reference to peculiar benefits to particular individuals or property.” See also Comad V. State, 16 A. 2d 125 (Del. Super. Ct. 1940); State v. Harbor House Seafood, 1997 W. L. 1704528. In this case, the Property Owners have applied for a Tree Removal Permit the nature of which would result in no cost to the City government in terms of services or regulatory costs imposed upon the City. Further, the amount of any permitting fee is grossly disproportionateto the government’s direct and indirect permitting costs since by virtue of the requestedpermit as a tree removal permit, the government assumes no burden to regulate or participate in the private removalof the tree in question. Thus under the rules stated in Camden-Wyoming Sewer & Water Authorig v. Town of Camden, Supra, and Cig of Wilmington v. McDermot1, 2008 W. L. 4147580 (Del. Super. Ct. 2008), the fee in lieu of mitigation requiredunder Section 253-36 (C) of the City Code is in fact a “tax”. However, the imposition of such a tax is not within the enumeration of powers granted to the City through the Charter of the City of Rehoboth Beach, and thus under Section 2001 (a) of Title XXII Annotated, the fee in lieu of mitigation set forth in Section 253-36 of the Code is an unlawful exercise of taxing authority by the City of Rehoboth Beach. 8. Both facially and as applied to the property at 318 Country Club Drive, Sections 253-30 and 253-35 of the Code violate the Property Owners’ rights to equal protection under the federal and state constitutions. In Sisson v. State of Delaware , 903 A. 2d 288 (2006), the Supreme Court of Delaware restated the rule for assessing violations of the Equal Protection Clause of the Constitution: “The Equal Protection Clause of the 14”‘Amendment to the United States Constitution protects against arbitrary and capricious classi?cations, and requires that similarly situated persons be treated equally. “Equal Protection does not require identical treatment for all individuals within a class but, rather, when Page 66 of 84 distinctive treatment of individual class members does occur, there must be a reasonable basis for the distinction.” For the distinction to be unconstitutional, “the distinction must be patently arbitrary and bear no rational relationship to a legitimate government interest.” Moreover, “due process . . .requires that a statutory provision be rationally related to its purpose.” (Citations omitted) Section 253-30 and Section 253-35 of the Code both pertain to the possible removal of trees when the presence of the tree or trees interferes with the erection of a new structure on the property or when the presence of the tree causes material damage to existing structures on the property or presents a safety hazard to pedestrian routes on the property. Section 253-30 and Section 253-35 both govern the issuance of tree removal permits for similarly situated classi?cations of individuals, speci?cally owners of existing structures on the property and ownersof new construction on the property within the city limits. However the aforesaid sections of the Code treat these similarly situated individuals differently without any rational basis. In the case of a new construction, under Section 253-30 (A) (2) (a) (1), a tree removal permit is issued for the owner of a new construction when: “In the case of an application for a building or demolition permit or for approval of a subdivision, the tree is located within the net buildable area of a given lot as identi?ed on the tree survey/protection/planting plan, provided that alternatives under Section 253-35 (F) of this Article have been considered.” However, in the case of an existing property, a tree removal permit is available for a property owner under subsection 4 when: “the tree is located where it creates or will create a material safety or health hazard or nuisance with respect to existing or proposed structures or vehicles or pedestrian routes and such hazard or nuisance is not innate to or commonly associated with the existence of trees in general (for example lighting, wet leaves on the ground during rainstorms)” Thus under the express provisions of Section 253-30, owners of new construction are treated differently from owners of existing structures on property since owners of new construction are granted tree removal permits regardless of whether the tree constitutes a material safety or health hazard or nuisance with respect to the proposed new construction. However, owners of existing properties are limited to the availability of tree removal permits only when they satisfy the required showing of a material safety or health hazard or nuisance with regard to their existing property. Under the standards set forth in Sisson v. State of Delaware , Supra, there is no rational basis for the different treatment of similarly situated permit applicant owners of new construction and applicant owners of existing structures. In the absence of any possible rational distinctionfor the treatment of similarly situated individuals, under the rules discussed above, the distinctions set forth in the Code with regard to the different treatment Page 67 of 84 %W7/7%../H7:/J7 m <‘ Winifre .McK ma 4%. / A Page 68 of 84 § Z53-26 Minimum tree densig reguirements appeal decision,y have daysfrom date toapp Park adeTre mmission. ease tactthe Ci ecret mack, 27-61 F” Page 69 of 84 Parks & Shade Tree City of Rehoboth Beach Commission 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 www.cityofrehoboth.com Rehoboth Beach, Delaware 19971 PUBLIC NOTICE THE REHOBOTH BEACH PARKS & SHADE TREE COMMISSION Monday, October 22, 20108; 2:00 p.m. Notice is hereby given that an administrativeappeal hearing shall be conducted by the Rehoboth Beach Parks & Shade Tree Commission pursuant to Chapter253 of the Municipal Code of the City of Rehoboth Beach on Monday, the 22nd day of October 2018 at 2:00 p.m. in the City Hall Commissioners Room on the second ?oor, 229 Rehoboth Avenue, Rehobot Beach, Delaware. The appeal hearinghas been requested by Jeff Meredith of Sussexh Tree Inc. on behalf of Bruce Vivari & Barbara Wagner, owners of the property located at 19 Lake Avenue pursuant to Section 253-36 of the MunicipalCode of the City of RehobothBeach, and pertains to a determinationof a fee in lieu of mitigation for one tree. All persons are hereby noti?ed to be present and to attend the determinationof such hearing by said Commission. Such hearing may be adjourned from time to time by said Commission without further notice. All interestedparties are invited to attend. Issued this 1st day of October 2018. BY Priscilla Chair ramw Page 70 of 84 Building & Licensing City of Rehoboth Beach 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 Fax 302-227-4504 Rehoboth Beach, Del are 19971 .cityofreh0b0th.com MEMORANDUM To: Parks and Shade Tree Commission From: Elisabeth Lingo, Arborist Date: October 12th,2018 Re: 19 Lake Ave. The following is the report of the City Arborist with regard to the above referenced appeal that is to be heard before the Commission on Monday, October 22”“,2018. The applicant submitted a tree removal applicationon August 30, 2018 to remove (1) 19” caliperholly tree. There are (4) additional trees on the property: (1) 6” sassafras, (1) 8” choke cherry, and (2) large multi—stemcrape myrtles. There are no trees in the front yard setback, so the property does not currently meet minimum density. From an onsite inspection, it was determined that the holly tree did not meet any of the seven criteria required to issue a tree removal permit as stated in § 253-30 A (2) a: § 253-30 A. (2) (a) Tree-removal permit. No tree-removal permit shall be issued unless the City ?nds that at least one of the following criteria is satisfied with respect to each protected tree designated for removal: [1] In the case of an application for a building or demolition permit or for approval of a subdivision, the tree is located within the net buildable area of a given lot as identified on the tree survey/protection/ planting plan, provided that alternatives under § 253-3SF of this article have been considered; [2] The tree is located within an existing or proposed public or utility company right-of-way, and relocation of such right-of-way or the use thereof is not reasonably practicable; [3] The tree is located within an existing or proposed public easement, stormwater management tract or facility, provided that only the minimum area reasonably necessary for the public service or use shall be considered for purposes of determining whether there is necessity for tree removal; [4] The tree is located where it creates or will create a material safety or health hazard or nuisance with respect to existing or proposed structures or vehicles or pedestrian routes, and such hazard or nuisance is not innate to or commonly associated with the existence of trees in general (for example, lightning, wet leaves on the ground during rainstorms); [5] The tree is located where it interferes with the installation, delivery or maintenance of proposed or existing utility services to the lot and relocation of such services is not reasonably practicable, except that a higher degree of necessity must be demonstrated by the applicant in the case of a historic tree; [6] The tree is determined by the City to be dead, signi?cantly diseased, severely injured or in danger of falling; or [7] The tree prevents reasonable development of a lot that is otherwise permissible under City ordinances. However, a tree-removal permit shall not be granted where the applicant has failed to design and locate the proposed improvements, demolition or subdivision so as to minimize the removal Page 71 of 84 Building & Licensing City of Rehoboth Beach 229 Rehoboth Avenue Telephone 302-227-6181 P.O. Box 1163 Fax 302-227-4504 RehobothBeach, Delawar e 19971 .cityofrehoboth. of trees consistent with the permitted use of the lot and shall be granted only after full consideration of alternatives under § 253-35 of this article. If the holly tree is approved for removal today, the 19” of mitigation would be met by the remaining trees onsite. However, there would be a planting requirementof (1) tree in the front yard setback to meet minimum density. Page 72 of 84 Building & Licensing dfRe_h.bb Telephone 302 ‘ 504 306 Rehoboth Avenue .1 [E1336 PO. Box i I63 Rehoboth Beach. Delaware 19971 m.L$’:‘..:“h‘both. a m TRIEE PERMIT APPLIC Job Address Date 19 Lake Avenue, Rehoboth Beach, DE 19971 8/29/18 Owner Mailing Address Bruce Vivari 12605 Saint James Road.Rockville, MD 20850 Phone # Email 302.212.5826 (h) & 301.529.2347 0) brucevi vari@gmaiLoom Contractor Mailing Address Sussex Tree’ 1”“ 20350 Nelson Drive, Bridgeville, DE 19933 Rehoboth License # Phone Number Email 16240 302.227.1980 [email protected] iption of Tree(s) Proposedfor Removal (quantity, species, diameter, location) ;\ ~}“.‘«!\.;\& 7&“~,.".\g, a ,1.‘\, .,\ \-X‘ ‘\x'- ‘r ReasIo’n:for\Removal ofTree(s) ' ';...‘.-aw-,»‘ _ # Of Trees To BéRemoved # OfTrees to Remain On Property # Of Treesyln.Front Yard Valuat, 9-£‘¢(‘K"k " “ \ *5» if s 31. 2. Tree Survey Included: No Proposal Include No I understandthat the trees at the address above may only be removed if found to be within the criteria established by the ComprehensiveTree Ordinance of the Code of the City of Rehoboth Beach, Delaware and that by signing the form, I am certifying that the tree(s) to be removed is (are) solely on my property. This application shall only be used when applying for a tree removal permit under the provisions of the ComprehensiveTree Ordinance ofthe Code ofthe City of RehobothBeach. NO TREE PERMIT WILL BE PROCESSEDWITHOUT THE REQUIREDSITE TREE PROTECTION PLAN. ALL SPACES SHALL BE FILLED IN COMPLETETLY IN ORDER FOR THE APPLICATION TO B E PROCESSED. !“‘i‘\; Jeff Meredith 12:»n W1 a Signdljut/tContractor or Authorized Agent Print Name Signature of Property Owner Print Name Date Received By Date Time Arborist Approval Date Time Page 73 of 84 THE PARKS & SHADE TREE COMMI OF THE CITY OF REHOBOTH BEA SEP12 Notice of Appeal and Application for Administrative Of?ceof CitySecretar The undersigned hereby gives notice of a reques1 for an AdministrativeAppeal Hearing: The following is an application made to Parks & Shade Tree Comniission of the City of Rehoboth Beach on the 11 day of Sep_tember ,2018 Location ofa?ected property 10 Take Avenue, Rehnhnth Reach UP 10071 Appliczlnfs Name: Bruce Vivari & Barbara Wagner Mailing Address: 12605 Saint James Road. Rockville. MD 20850 email: brucevivari@2m ai1.com Telephone Numbers: 301.529.2347 (Home) 302.212.5826 (O?ce) (Cell) Representatives Name: Jeff Meredith -- Sussex Tree, Inc Mailing Address: 20350 Nelson Drive Bridgeville, DE 19933 Telephone Numbers: 302.337.3346 (Hume) 302.227.1980 (05106) ( C631 Provide detailed information describing the a?ected property and tree(s): ) See attached Dronosal Pleasecheck at least one of the following: E! In the case of an application for a building or demolitionpermit or for approval of a subdivision, the tree is 1coatedwithin the net buildable area of a given lot as identi?ed on the tree survey/protection/planting plan, provided that alternatives under §253-35(F) have been considered; E] The tree is located within an existing or proposed public or utihty Cciilpélfiy right-of-sway,and relocationof such right-of-way or the use thereof is not reasonably practicable; D The is located within an existing or proposedpublic easement, stormwnter management tract or facility, provided that only the niininium area reasonably necessary for the public service or use shall be considere for purposes of detemiining wlmtherthere is necessity for tree removal; 3 d The tree is located where it creates or will create a material safety or health hazard or nuisance with respect to existing or proposed structures or vehicles or pedestrian routes and such hazard or nuisance is not innate to or commonly associated with the existence of trees in general (for example, lightning, wet leaves on the ground during rainstonns); D The tree is located where it interferes with the installation, delivery or maintenance of proposed or existing utility services to the lot and relocation of such servicesis not reasonablypracticable, except that a higher degree of necessity must be demonstrated by the applicant in the case of a historic tree; [1 The tree is determined by the City to be dead sigti?cantly severely injured or in danger of falling; El The tree prevents reasonable development of 21 lot.that is otherwise perrnissible under City ordinances . However, :1 tree-removal permit shall not be grantedwhere the applicant has failed to design and locate the proposed improvements, demolition or subdivision so as to minirruze the removal of trees consistent withthe permitted use of the lot and shall be granted only after full considemtionof alternatives under §253~35. PSLSTCFor-rns/aniw/O90ct2()1'2 Page 74 of 84 Page 75 of 84 ssex ree, c Bethany (302) 539-5700 Rehoboth (302)227-1980 "The Tree People" Georgetown (302) 856-9210 Fax (302) 337-7746 www.SussexTree|nc.com admin@§ussextreeinc.com PROOSP AL September 11, 2018 Page Proposal #: 47970 Bruce Vivari Proposal Date: 8/28/2018 12605_SaintJames RD Custome, #_. 13479 Rockville, MD 20850 Arbonst: DD Job Type: G Temis in Days: 15 Bruce Vivari Home.‘ 302-212-5826 P"'°""Y-' Normal Barbara Wagner Office: 303-221-8070 5"’/M°d By" DD TD 19 Lake Ave Mobile.‘301-529-2347 Rehoboth Beach, DE 19971 Fax,- brucevivari mai|.com Item# Quantity Description of Services UnitPrice Item Charge Disc./Adj. ltemTota| 1 1 American Holly 1,295.00 $1,195.00 Right side of home at top of driveway. Take down tree, shred and remove all wood and limbs. Grind stump and all apparent surface roots. Permit 140.00 $140.00 Permit Fee to submit permit and drawing to the city for approval or denial. Cancellation Policy Cancellation Fee is a sum of money you must pay when you did not call or send a notice of cancellation/termination that was less than 48 hours prior to the start date/ time of any scheduled service. When you accepted the proposal, you hereby agreed to a liquidated damage amount equal to 20% of the Proposal Total, which shall be paid by you to Sussex Tree. $100 Money Mailer Coupon Included Sussex Tree is NOT RESPONSIBLE for damage to underground cables, wiring, Proposal SubTota|: 1,435.00 irrigation, septic, etc. if we are not noti?ed of items in advance. Should you have Discount Amount; 0.00 any questions, or ifyou wish to make any changes to this Proposal, please do Proposal Total: $1,435.00 not hesitate to contact us. Please sign and return as soon as possible to Required Deposit: 0.00 schedule work. Payment Terms: Due upon Completion. The balance due and owing on your account after 15 days shall bear a service charge of 2% per month (24% per annum) on the unpaid balance. You will be liable for any Collection Fees andlor Attorney Fees that incur due to nonpayment of account. DOmInlCK UINUTIZIO A 3% convenience charge added to all Credit Card Payments. Signed: Date: 20350 Nelson Drive Bridgeville, DE 19933 [Si Page 76 of 84 /I Page 77 of 84 Page 78 of 84 Page 79 of 84 Page 80 of 84 Page 81 of 84 mvo ‘ICE . Georg 9 |‘ qn Corp. :nvp_ic;eNumber 003438 Phone: 302-645-5267 P.0. Box -326 Invbicé Dte :2704/-19/.18 Phone: 302-684-4545 Milton. DE 19968-0326 "1 ; Pajge Fax: 302-645-1819 E-'Ma’il'gs’c@gscne’t.netWeb Site www.gscnet.net NET _DU_EUFONEI-‘{ECE'l. PT AVENUE BRUCE VIVARI 19 M 12605 ST JAMES RD REHOBOTHBEACHDE ROCKVILLEMD 20850 V|V060 Prob: WASHING MACHINE IS BACKING UP. PREVI 005 HISTORY OF CLOG FROM HOUSE TO STREET. TH INKS IT MAY NEED CLEANED OUT AGAIN. Work Per f : RAN MACHINE THROUGH CLEANOUT UNDER REAR DECK. REMOVED SOME ROOT S . RAN HOSE THROUGH CLEANOUT AND PUMPED OUT WASHING MACHINE T0 TEST. SE ER MACHINE 1 HRS 110.00 110.00 04 16/1S- SERVICE CALL (REGULAR) 1 SC 134.00 134.00 ArielPerforms $5 M INVOICE"'ro'1*Ai. 24'- |'|\I\"/-'t")'i(§I§S6U€:;u\ib’ . . ; , _ ARE PAYABL _3__; _ . __ DUEAFTER (30) DAYS, TO 2% CHARGEPER - CHARGE$1. Page 82 of 84 , . 5.!‘ _.-A -..u —..- O 1»: . N,-x ,1‘-‘J I N V ITCE ‘ G 9 org 9 |' n Corp - Invoice-Number 00344769 Date 05/10/18 Phone: 302-645-5267 P.O. Box 326 Invoicé 1 Phone: 302-684-4545 Milton, DE 19968-0326 Page RECEIPT Fax: 302-645-'-1-"819 E-Mail gsc@gscnet;.net Web Site www,gscn6t.net NET"DUEUPON BRUCE VIVARI 19 LAKEAVENUE LAK019 12605 ST JAMES RD REHOBOTHBEACHDE ROCKVILLEMD 20850 vuvoeo I I11/?esh?! . 7;.» um HAD}chocIN '1-1-is‘DRAINmémrsm THE Prob: CUSTOMER REcmfrnv TO HOME AND s-rnmm-. JOE ADVISED THAT IT woum an ms! PUT THE SEWER CAM DOWN THE DRAIN THROUGH AN ACCESS POINT HE SHOWED THE HOMEOWNER AND SAID THAT WE COULD ASSESS CONDITION AND ADVISE IF ANYTHING IS CAMERA THROUGH CLEANOUT. FOUND CLUSTER OF work Perf: AM: RAN SEWER UP ROOTS IN SEWER WITHIN 5 PET OF CLEANOUT. OWNER TO DIG AND UNCOVER PIPE. WILL CALL FOR SHERMAN TO REPLACE SECTION OF PIPE. PM: RETURNED AND REPLACED SECTION OF PIPE FILLED WITH ROOTS. CAPPED OFF LINE PROM BASEMENT SHOWER. INSTALLED 4"-CLEANOUT ON MAIN STACK. RE-CONNECT 2 LINE FROM WASHING MACHINE TO NEW PIPING. TESTED. 4 6 FT 7o 28 2o 1319.5 2 EA 94 69 as W'YE,PVC.PVC£DWVWV 4 31 15.31 4 5 TR ET pvc 4 1 BA ELL. /nwv 1 EA 04 16 04 ELL. 4 5 PVC nwv 4 13 15 13 ELL, PVC nwv 4 1 EA 22-1/2 EA 83 15 83 CLEANOU'I',FI'.l"l'I G PVC DWV 4 1 5 67 cLEANoU'r.PLUG PVC/D 4 1 EA 67 pvc/-nwv 4x3 1 EA 07 16 07 COUPLING. REDUCING 15 16 15 BUSHING. PVC/DWV 4x2 1 EA INVOICESARE DUE AND PAYABLEUPON RECEIPT - MIN.CHARGE $1.00 DUE AFTERTHIRTY(30) DAYS, SUBJECT TO 2% FINANCECHARGEPER MONTH D-‘Ha\o\u1UIuIaxvhr-»t-I-‘I-‘P-‘F-‘l-J Page 83 of 84 .. uh I. -3.: ".3: -».v~“- M |N\I0|(3E Cog-p_ G°° 92 Se' h Invoice Number 00344769 Phone: 302-645-5267 P.O. Box 326 Invoice Date 05/10/18 Phone: 302-684-4545 Milton, DE 19968-0326 Page 2 Fax: 302-645-1819 E—MaiIgsc@gscnet,net Web Site www.gscnet.net NET DUE UPON RECEIPT BRUCE VIVARI 19 LAKEAVENUE 12605 ST JAMES RD REHOBOTH BEACH DE LAK019 ROCKVILLEMD 20850 VlV060 2 1.43 COUPL . DWV _ 1 EA 1.43 " X E COUPLINGCI/PL 1 EA 38.46 38.46 "- F O 1 EA 5 .54 5. 54 05/08 - OR REGULAR 2 MEN 3 HRS 215.00 645.00 Service Performed By: KEITH INVOICE TOTAL 888.71 INVOICES ARE DUE AND PAYABLE UPON RECEIPT PAST DUE AFTER THIRTY (30) DAYS, SUBJECT TO 2% FINANCE CHARGE PER MONTH — MIN. CHARGE $1.00 Page 84 of 84