§ 72-835. General exemptions.

(a)

During emergency conditions caused by a hurricane or other natural disaster, the provisions of this division may be suspended by the direction of the county manager.

(b)

Nuisance trees as defined in 72-2 are exempt from the provisions of this division.

(c)

Deteriorated trees, as defined in section 72-2, which have been removed with prior approval of the county forester, are exempt from the provisions of this division. Trees removed without prior approval of the county forester shall be presumed to have been in good condition. Removal of said trees without review by the county forester shall be considered a violation of this division and subject to the provisions of section 72-832 of this division.

(d)

Trees with trunks which lie wholly within the property boundaries as described herein, are exempt from the requirements of this division if the following conditions are met:

(1)

Residential owner-occupied. Said property is classified (zoned) pursuant to article II, Volusia County Zoning Ordinance, division 7, as amended, as a:

a.

Single-family or two-family use area, in a community development plan or PUD, excluding mobile home rental parks; and

b.

A single-family or two-family dwelling or mobile home is located on said property; and

c.

Said property is owner-occupied.

Historic trees located on residential owner-occupied property as defined in section 72-2, are exempt from the requirement of this division.

(2)

Agricultural use. Said property is classified (zoned) A-1, A-2, A-3 (over 2.5 acres), A-4, RC, RA, MH-3, MH-4 (over 2.5 acres), OTR, ORE, OCR or FR pursuant to article II, Volusia County Zoning Ordinance, division 7, as amended; or classified as agricultural land for ad valorem tax purposes by the Volusia County property appraiser.

a.

Rebuttable presumption: A rebuttable presumption is created for the removal of any tree on land which is classified as, or used for, agriculture, as set forth above; if said tree is removed within three years prior to and located on property which is the subject of:

1.

An application for rezoning to a classification other than agriculture; or

2.

An application for a special exception pursuant to article II, section 72-415, Volusia County Zoning Ordinance, as amended; or

3.

Subdivision and site plan application approval pursuant to article III, division 2, Volusia County Land Development Code, as amended.

b.

In order to rebut the presumption that the tree removal was done with the intention of developing the land to a nonagricultural use, the owner may file a sworn affidavit with the county forester attesting to the fact that no trees have been removed except in conformity with recognized agricultural management or production practices.

c.

The county forester shall consider the following factors, which shall be set forth in the affidavit, when deciding whether the trees have been removed in conformance with recognized agricultural management or production practices:

1.

The specific reason(s) for removal of said trees.

2.

The length of time the land has been in agricultural production.

3.

Whether the use has been continuous.

4.

The size of the area as it relates to efficient agricultural production.

5.

Whether the land has been sufficiently and adequately cared for within accepted commercial practices of the dominant type of production.

6.

Whether the land is under lease and if so, the type and terms of said lease.

7.

Whether the tree removal was done in the ordinary course of business.

8.

Any contract for sale in existence at the time of submitting the affidavit.

9.

Such other factors which are relevant to the determination of good faith land use.

d.

After reviewing these factors, the county forester shall deny or approve the exemption. If the county forester denies said exemption, said denial may be appealed as provided in section 72-849 of this division.

Historic trees located on agricultural use property as defined in section 72-2, are exempt from the requirement of this division.

(3)

Existing rights-of-way and easements.

a.

Any trees, except historic trees, within an existing public or private right-of-way or maintenance easement which must be removed or thinned to ensure the safety of the motoring public and to maintain visibility of oncoming traffic at intersecting public streets. Trees which may disrupt public utilities such as power lines, drainage ways and similar public needs may be removed only upon prior approval by the county forester and pursuant to the requirement of subsection (d)(5) of this section. However, historic trees located in public or private rights-of-way or utility easements may only be impacted pursuant to county permit requirements.

b.

Planned public or private rights-of-way shall be designed to preserve as many trees as possible. However, historic and specimen trees located in public or private rights-of-way or utility easements may only be impacted pursuant to county permit requirements.

(4)

Trees for sale. Trees which are planted and grown for sale to the general public or for some public purposes. Licensed wholesale plant or tree nurseries and botanical gardens are exempt from this division.

(5)

Removal of trees, except historical or specimen trees, by franchised utility companies provided that:

a.

The utility company provides prior written notice of its intention to remove trees, to the county forester and the record property owner. The written notices shall be delivered, at minimum, 15 days prior to the intended tree removal; and

b.

The utility company can demonstrate to the county forester prior to tree removal that:

1.

The tree will cause a continual disruption of service; and

2.

The threat of service interruption cannot be remedied by tree pruning in accordance with standards as set by the American National Standards Institute, as amended.

(Ord. No. 02-13, § I, 7-18-02; Ord. No. 2008-25, § III, 12-4-08; Ord. No. 2013-20, § XI, 12-12-13; Ord. No. 2018-05, § XXI, 1-18-18)