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Tree protection plan makes ballot Builders fight it in pending suit By Karen Rivedal Citing court decisions describing the right to vote as "the very essence of democracy," Circuit Judge Karen Cole Friday ruled that Duval County residents can cast their ballots on a proposed tree-protection referendum in Tuesday's election. The Northeast Florida Builders Association and other builders had filed suit to stop the referendum, which was placed on the ballot by a citizens group that collected more than 20,000 signatures. "There is a strong public policy against courts interfering in the democratic processes of elections," Cole wrote in a 20-page ruling produced after about nine hours of testimony in a hearing Monday. Members of Citizens for Tree Preservation Inc. were jubilant -- even though a lawsuit from the builders already is pending to continue the fight if voters approve stronger tree protection rules through a proposed charter amendment. "We fought hard to get it on the ballot and we fought hard to keep it on the ballot," said group co-founder Bill Brinton, a Jacksonville lawyer who also represented the group in court. "This is proof positive that your vote does count," said Lane Welch of Greenscape, a local tree-planting organization and one of the dozens of community groups that supported the petition drive. Mitch Montgomery, president of the builders association, said losing this initial battle over the injunction made little difference to his group. "It has no bearing on the continuation of the lawsuit and so we are just staying the course," he said. "None of the legal points or issues brought up in the suit have changed, as far as we're concerned." In fact, while ruling against the builders' overall case, Cole did say two of their many points might prevail in the later court case. She said the builders might be right that the summary of the referendum printed on Tuesday's ballot should be more complete -- because it doesn't mention that there is an existing tree-protection law or spell out the measure's impact on it. And she noted that the builders' overarching argument -- that the proposed measure, because of its detail, is more of an ordinance than a true charter amendment -- could be right. Citing "unquantified and speculative evidence," Cole rejected the builders' other arguments -- including the contention that the rules would be an unconstitutional tax and that builders would be "irreparably harmed" by the rules. Cole also said the charter amendment, if approved, would legally apply at the Beaches and she ruled that the ballot title chosen for the referendum -- "tree preservation amendment" -- was accurate. The builders had argued that the title was misleading because the rules also would allow the re-planting of trees or payment of fees in lieu of actual tree preservation on a site. Montgomery yesterday maintained that the measure was at fault because it focuses on rules imposed just during the home building process. "It imposes a tax that is particularly targeted toward new home buyers and new home developers, and we feel like that is unjust and unconstitutional," Montgomery said. The proposed referendum would amend the city's charter to set minimum standards for tree protection, mitigation and conservation. It's about twice as strict as an existing law approved by the City Council last year, which requires builders to preserve or pay for hardwood trees at least 6 feet around. As under current law, the rules would apply to all county land except for property used for tree farming or as a cemetery. Existing homeowners also would be exempt, meaning anyone could cut down a tree in their own yard if they chose to -- which also is the case under current law. Palm and pine trees also would be exempted. The tree replacement rules, as under current law, require one-for-one mitigation of live oak trees, with only a one-for-three rate for any other protected trees. The referendum and current law also would both allow developers to use tree-preservation credits, in which any unprotected tree they don't cut down can be counted against the protected trees they do remove. Besides protecting smaller trees, the referendum rules differ from current law in that protected trees cleared for roadways in subdivisions would have to be replaced or paid for. Builders also would be allowed to replant trees on a property elsewhere in the city if the site could not accommodate them and they didn't want to pay the fee, a practice known as off-site mitigation that does not exist under current law. |
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