Flagler County government is belatedly moving to adopt a tree preservation ordinance that would significantly increase tree preservation measures. This could be done either by reducing the number of trees cut down, increasing requirements for replanting, or by establishing a tree preservation fund that would serve as a sort of backup bank that developers can pay into to compensate for trees destroyed on a development site.

At the urging of current County Commission Chairman and landscape architect Andy Dance, the county sought a more effective tree protection ordinance after county officials learned at public hearings — when it was too late — that the stately oaks on the 612 acres of the future 1,200-home Radiance development on Old Kings Road (formerly Eagle Lakes) had no protection from demolition. No tree survey had been conducted. Nor was one required.

“And now we’re at PUD approval,” Dance said at the time, referring to Radiance’s planned community development application more than two years ago. “Once it gets past that stage, we can’t hold them accountable.”

Dance then suggested to his colleagues on the county commission that the county should revise its tree protection ordinance, even if only as a temporary solution: The county is also revising its master plan and zoning ordinance, all of which will have an impact on tree protection policy.

The ordinance has since been drafted. “If a zoning is going to design a new neighborhood,” said Assistant District Attorney Sean Moylan, “when this is in place, you have to consider the existing natural resources of the land and try to incorporate those into the design rather than just imposing development on the landscape. For example, if they have a nice stand of large trees, they may want to leave that area alone and do the planning around that. That will be codified once this is passed.”

The Flagler County Planning Board recommended Tuesday that the ordinance be adopted at its first reading before the County Commission next Monday, although Adam Mengel, the county’s planning director, said the proposal was incomplete.

“I’m not going to tell you that more won’t change,” Mengel said. “I think that’s still a work in progress,” especially as the Land Development Code is being rewritten. The timing irked Mengel. “As part of a major update to the development code, we may take a completely different approach in terms of format and structure. The basic framework may still remain the same, but I think we’ll revisit that.”

The regulation:

• Requires developers to conduct a tree survey before construction begins.
• Encourages developers to create site plans that take mature trees into account.
• Final approval of the plan is subject to proof that all required tree replacement measures have been carried out.
• Redefines so-called “indexed trees” — hardwoods over 6 inches in diameter, specimens over 18 inches in diameter, historic trees over 36 inches in diameter — as protected trees. They’re still not immune from destruction. But if they’re destroyed or uprooted, they must be replaced or replanted, or the county must be compensated through a tree fund.
• Establish a tree fund.
• Increases the tree replacement rate and exempts trees in the immediate vicinity of single-family homes from the obligation to replace them.
• Provides for deviations or exemptions from the regulation, which are subject to official review.

“The county was a little late in addressing this,” Dance said, but he’s pleased with the pragmatic approach. “There’s some flexibility for some mitigation. If trees are cut down, there’s a process in place to limit those cuts and replants. And part of the new regulations is, if you can’t replant on the site, there’s a tree fund very similar to what Palm Coast has. You can pay into the tree fund and those funds can be used by the county for tree protection or tree planting.”

The tree fund would be based on the wholesale value of the trees. The county would plant the trees on county property, although there is only so much room on public land. “So if we have the historic trees, the specimens that exist on a property,” Mengel said, “rather than buying the property like we did with Old Moody Homestead and taking it off the tax rolls and giving it to the state, we could get an acquisition at a cheaper price. We could effectively have a tree easement. That’s what I call it. A kind of conservation easement that would be put in place there to put that tree or trees, maybe a grove of trees, into some kind of permanent easement, ideally.” The county would use money from the tree fund to buy the tree easement.

If trees die, the owner could potentially buy back the easement, Mengel said. But when he raised that possibility, it had not yet been written into the ordinance.

The classification of historic trees — the most valuable trees — is at the discretion of the county commission and is requested by landowners, which is absurd: “Imagine this scenario as a landowner,” Mengel said. “You’re going to go to somebody and say, ‘Hi, I want you to put a restriction on my land.'” That works if a landowner tries to get the county to buy the land and add it to its registry of environmentally sensitive areas to be protected. But in the vast majority of cases, it doesn’t work if landowners or developers build on the land and cut down trees. “It’s odd that the only way we can get that classification right now is through the commission’s classification itself,” Mengel said.

Planning Commission member Michael Goodman cited the example of a church in Hammock that cut down five oak trees and built a prefab house in their place. “Something doesn’t make sense to me,” he said. “We need to make it economically unviable for them to destroy trees like that.”

The proposed ordinance would give the county the authority to examine certain trees and classify them as more valuable than others. “That still wouldn’t mean you can’t cut them down. But if you cut them down, remove them, you would have an additional requirement for their replacement,” Mengel said. “It’s designed to discourage you, or maybe put another way: encourage you, to keep the tree on the property.”

The proposed ordinance received comments from builders, developers and their representatives, stakeholders that Mengel described as “a handful of people we see in our spaces on a regular basis.” But it is almost certain to face further scrutiny from those same stakeholders before the County Commission.

The old oak trees in the Radiance development are still there, if only because the developer has not yet submitted a site plan for the property. If the proposed ordinance goes into effect, it cannot be applied retroactively. So it will not apply to Radiance, and the developer can cut down the oak trees. But the developer is equally free to design the project in accordance with the new ordinance.

Tree Ordinance 2024