City of Rehoboth Beach, DE Appeals, Violations, and Remedies

§ 253-30 Waiver; administrative appeals.

If an application for a tree removal permit does not meet the requirements of § 253-25, the applicant may make a written request to the Parks and Shade Tree Commission to approve a waiver of the pertinent requirement of § 253-25. Within 15 days of the filing of a waiver request, the City Arborist, taking into account the natural area plan, shall file a written response to the waiver request with the City Manager setting out the professional opinion of the City Arborist in and the factual findings in support of that opinion. In making said written response, the City Arborist may opine that the purposes of this chapter would not be served by the denial of the waiver request. A copy of the City Arborist's written response shall be provided to the applicant by the City. The Parks and Shade Tree Commission shall then set a reasonable time for a hearing of the waiver request and give public notice, as well notifying the parties and decide the waiver request within a reasonable time. Any party to the appeal may appear at the hearing in person, by agent, or by attorney. Such hearing shall include a public hearing. If, upon review at a public hearing, the Parks and Shade Tree Commission makes a finding that the purposes of this chapter would not be served by the denial of the application, then the City Arborist shall approve the application, in whole or in part.

Any person aggrieved by a decision of the City Arborist relating to a tree plan or permit application and owning property within 200 feet of the tree or trees that is the subject of the tree plan or permit application may appeal to the City Parks and Shade Tree Commission, except that denial of a tree removal permit for a City tree cannot be appealed. A written notice of appeal must be filed with the City Manager within 30 days of the date of the decision which is the subject of the appeal. An administrative appeal fee in the amount of $450 shall be paid to the City upon the filing of a notice of appeal.

(1)

Notice of appeal. 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 City Arborist's decision. Any additional exhibits or evidence which the applicant would like the Parks and Shade Tree Commission to consider on appeal may be filed with the notice of appeal. Upon the filing of a notice of appeal, the City Arborist shall transmit to the City Manager all the papers constituting the record of the basis for the City Arborist's decision.

(2)

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the City Arborist from whom the appeal is taken certifies to the Parks and Shade Tree Commission after the notice of appeal shall have been filed that, by reason of facts stated in the certificate, a stay would, in the City Arborist's opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Parks and Shade Tree Commission or by a court record on application or notice to the City Arborist from whom the appeal is taken and on due cause shown.

(3)

City response; hearing. Within 15 days of the filing of a notice of appeal, the City Arborist shall file a written response to the notice of appeal with the City Manager. A copy of any written response shall be provided to the applicant by the City. The Parks and Shade Tree Commission shall then set a reasonable time for a hearing of the appeal and give public notice, as well notifying the parties and decide the appeal within a reasonable time. Any party to the appeal may appear at the hearing in person, by agent, or by attorney. Such hearing shall include a public hearing.

(4)

Authority of the Parks and Shade Tree Commission. The Parks and Shade Tree Commission shall have the authority to hear and decide appeals where it is alleged that there is error in any decision made by the City Arborist relating to a tree plan or tree removal permit. In exercising its authority, the Park and Shade Tree Commission may reverse or affirm, wholly or in part, or may modify the City Arborist's decision, only if it finds that the City Arborist's decision is contrary to a specific provision of this chapter, is not supported by substantial evidence, or is arbitrary or capricious. The Parks and Shade Tree Commission shall set forth its decision, in writing, within 30 days following the hearing, which decision shall include the findings and conclusions on which the decision is based.

§ 253-31 Appeals to City Commissioners.

Any person aggrieved by the final decision of the Parks and Shade Tree Commission may appeal said decision, in writing, to the City Commissioners within 30 days after the date of the written decision by filing with the City Commissioners a written notice of appeal. An administrative appeal fee in the amount of $250 shall be paid to the City upon the filing of a notice of appeal.

(1)

Notice of appeal. The written notice of appeal shall consist of a general statement of the grounds for appeal and the grounds upon which the person(s) filing the appeal believes they have been aggrieved. For the purposes of this section, a decision of the Parks and Shade Tree Commission shall mean a vote of said Commission to affirm, reverse, or modify wholly or in part, a decision of the City Arborist.

(2)

(3)

Hearing. Upon receipt of the required written notice of appeal, the Commissioners shall schedule an appeal hearing within 60 days or as soon thereafter as practical at which the Parks and Shade Tree Commission, the appellant, and the applicant, if different than the appellant, shall be afforded an opportunity to be heard. The Commissioners shall provide public notice of the hearing. Only person(s) who provided written or oral testimony during the Parks and Shade Tree Commission's public hearing upon the application that is the subject of the appeal may testify, so long as such testimony is limited to restating their position as previously stated on the record.

(4)

On the record appeal. The appeal shall be an appeal on the record of the hearing before the Parks and Shade Tree Commission. The record shall consist of all written and oral evidence and legal arguments properly submitted at or for the Parks and Shade Tree Commission hearing prior to the Parks and Shade Tree Commission's decision on appeal, as well as the Parks and Shade Tree Commission's deliberations and decision thereon. Evidence and legal arguments not on the record of the hearing before the Parks and Shade Tree Commission may not be presented to the Commissioners in writing or orally.

(5)

Submissions. The Parks and Shade Tree Commission, the appellant, and the applicant, if different than the appellant, may provide a written submission of not more than 10 pages to the Commissioners and other parties to the appeal not later than 21 days prior to the scheduled appeal hearing before the Commissioners.

(6)

Authority of commissioners. After the appeal hearing, the Commissioners may, by recorded vote of a majority of the Commissioners, take one of the following actions relying upon the record of the hearing before the Parks and Shade Tree Commission and the authorized written, and oral submissions: affirm the decision of the Parks and Shade Tree Commission, in whole or in part; reverse the decision of the Parks and Shade Tree Commission, in whole or in part; remand the whole matter to the Parks and Shade Tree Commission for further review, consideration and a new final action; or modify the final action of the Parks and Shade Tree Commission.

(7)

Standard of review. In deciding whether the decision of the Parks and Shade Tree Commission should be affirmed, reversed, or modified, the City Commissioners shall consider whether the decision is contrary to a specific provision of this chapter, is not supported by substantial evidence, or is arbitrary or capricious. The City Commissioners shall set forth their decision, in writing, within 30 days following the hearing, which decision shall include the findings and conclusions on which the City Commissioners' decision is based.

(8)

Judicial review. Any person aggrieved by the decision of the City Commissioners may appeal to the appropriate court, but only after all remedies made available under this chapter have been exhausted.

§ 253-32 Violations and remedies.

Each and every person, owner, agent, contractor, lessee or tenant violating any provision of this chapter, including those who knowingly commit, take part or assist in any such violation, shall be punished as described herein and in addition thereto may be enjoined from continuing the violation. Each tree cut, damaged or poisoned shall constitute a separate offense. Any tree removed without the proper permit will be subject to a fine of $500. If said fine is not paid within seven days, the fine will be $500 per day for each day thereafter that the fine is not paid. If said tree is removed by an individual or entity with a City business license or a City residential rental license, the City business license or City residential rental license may be revoked by the City pursuant to Chapter 120 of this Code for a period of two years. If said tree is removed by an unlicensed individual or entity, the individual or entity shall be ineligible to obtain any City business license or City residential rental license for a period of two years.

In addition to the monetary penalty specified above, violations of this chapter involving trees of eight inches caliper or greater shall be subject to mitigation as follows:

(1)

The replacement tree shall be chosen from the City of Rehoboth Beach Approved Tree List.

(2)

The quality and size of the replacement trees shall be at least eight (8) feet tall and at least two (2) inches caliper. Any tree which is the subject of a mitigation plan shall be replaced at a ratio of at least one inch of caliper for each inch of caliper removed.

(3)

The replanting design shall provide adequate space for root and crown development.

(4)

The property owner shall be responsible for maintenance of the mitigation trees. The property owner shall submit to an on-site inspection of the planted tree or trees 12 months after planting. If a mitigated tree is found to be dead, diseased or otherwise not in compliance with this chapter, the property owner shall replace the tree within 60 days and be subject to all other provisions of this section.

(5)

When the property is not suitable for on-site mitigation, the City may provide for use of a site on public lands, subject to all other provisions of this section.