e e for for e e for e e e e e for e e e e e how are you doing today it's already up there no it's working it's fine because it's hard for me to hear you at that's for e e for thank you for one two three test test test who are you today okay you have a card you may end up having to remove that microphone because the phone that's on my ears so they may interfere with one another e for good morning ladies and gentlemen uh this is the May meeting of the special magistrate in for uh the city of o today is May 23 [Music] 2024 case number ce24 iph 00109 the respondent is tree monkey Inc um the property uh involved in the hearing today is Royal Wood Lane Oita Florida 32765 and the partial ID is City RightWay uh who is going to be speaking to to this item today all right anyone who's going to be speaking to this item please come to the microphone right would you raise your right hand you solemnly affirm that the testimony you're about to give shall be the truth the whole truth and nothing but the truth all right we'll begin with the [Music] city okay state your name for the record yes sir code enforcement officer Shakira Moyer right why do you have for us today miss Moyer yes sir we have K c24 hyphen 00109 off royalwood Lane um cities RightWay I have 15 pages of evidence to submit to you may I approach the bench yes has a copy been provided to uh tree monkey yes sir all right thank [Music] you all right this 15 pages will be entered into evidence as the city's exhibit number one right go ahead M Moyer yes sir uh Mr Mar on about March um 18th we received a complaint regarding a tree that was removed from the RightWay which is located off a waral Wood Lane in noo Florida so pages one two and three show photos of what the tree look like before and after the removal of the tree so March 18 was the DAT of remove on our round yes sir on a round on that date okay is when we received a complaint regarding a tree that had been removed all right ahead yes sir on March um around March 19th I placed a phone call to the owner um which is Tree Monkeys Mr Anthony Gago regarding the tree removal that um was done without uh the city's permission we tried to consult with Mr gagel in order to rectify the problem but to no avail so a notice of violation was sent out to the violators tree monkey incorporate at their business location that was sent out on March 20th the city requested uh listed some corrective actions that were necessary to be completed um by April 22nd that's page five we did a business Corporation search which is where we got the addresses from we also sent notice to the registered agent that's page six and seven page eight shows the certified mail receipt page nine it's a copy of the signed green card from the business Corporation and page 10 and 11 is the certified mail receipt and signed green card from the register agent very minimum communication took place no compliance or satisfaction to the city was made so we sent out a notice of hearing the notice of hearing was for today sent out on May 2nd it's page 12 page 13 is certified meil receipt to the uh register agent we didn't receive a signed green card back but page 14 and Page 15 certified meal receipt signed Green Card showing that we serve notice to the uh business owner as well a corporation Tree Monkeys listed at their address and it was signed that concludes my presentation at this time with a couple of questions yes sir and what is the ordinance provision that has been violated or land I guess this is a Land Development code yes sir uh it is section um J2 violation and remedial actions and this the violation is obtaining removing the tree without a permit yes sir have you received any uh notification from u tree monkey as to why they did not get a permit yes sir that was just via the um phone call that I had with Mr Anthony he advised that he felt that it was an emergency situation that um he needed to remove it and um in short words that it was more so done as a favor to the city that he removed it um um because it was going to cause some damage to people that's all we got okay uh is a representative here today of tree monkey all right I see a representative of tree monkey here today I'm going to find it's a threshold matter that all notice is required by o ordinance in Florida statute have been provided yes sir anything else M Boyer no sir not at this time all right who wants to speak on behalf of tree monkey morning your honor and what is your name Sir Anthony gangal and what is your H position with tree monkey Mr gangal Vice President all right what do you have for us all right so we got an arist letter to remove the tree um and with an arborous letter you don't have to get a permit from the city um the property um property owner has the um the deed and shows that that is her property and it is a utility right away but she is to Main maintain it so we got an ARB letter we removed the tree she is replacing the tree she planned on planting another tree we were stopped from planting another tree the city told us that we could not plant another tree that they had to do it all right um they also are saying that we have to replace it the tree that we removed with six trees and that is unreasonable because I can show many or uh City permits that we have gotten from them where we have removed trees that are bigger than this tree and numerous trees we've removed two and that were bigger and they had us replace it with one tree and they want us to plant six for this one okay do you have the arbous certification with you here today I do all right may I have that sir you you're admitting this in evidence all right that's two-page document will be admitted into evid as the respondents exhibit one Mr Mercy the city has not been provided a copy of the letter what sorry the the city has not been provided with a copy of the letter you do not have a copy you have a copy for the city I do not sir all right I'll let you come and take a look at this M Ross you take take as much time as you need I'd also like to say Mr Marcy that um Florida statute 16304 um the arbor letter provision only applies to residential property and it's the city's position that the right of way doesn't qualify for that statute thank you sir okay well let me have that back if soon as you're done your honor I also have the survey of the property showing that it goes to the street all right you want all right this will be received in evidence this respondents exhibit to Miss Ross do you want to see this also sure let's take about a 10 minute break yes sir let's come back no later than 1020 for for e e for for for for for for w for thank you for for right Mr Kali anything further as you can see in the survey the the property goes to the Street the pins go to the street and it says that it's a utility easement which is used for utilities for cable anything that they need to run in there the city does not maintain this property they do not mow the grass they do not trim the trees they trim what's over the street they leave the rest for the homeowner so if the tree falls and hurt somebody that's walking down the sidewalk our customer was we that she was going to be responsible she had us remove the tree we were going to replace the tree I I you know when when the city sent called us I talked to them you know I did everything that they asked with the exception of paying a fine and planting six trees when it that it's I don't believe it's right you know that's the only thing I haven't done for the city I cooperated with them on everything else um uh Miss Nash she will speak she will tell you that the tree has been diseased since before 2016 um she has paperwork from other tree companies stating this and if the city was so worried about me removing the tree why haven't they taken it down prior she still has two more trees in her yard that are have the same disease they're dropping limbs the whole neighborhood has them um and they only have one or two trees marked in the neighborhood that they're going to remove um I don't have any I have a picture of it but I don't have it where where I can give it to you um there's one right down the street that's 100% dead limbs are falling that people are going to get hurt I I follow the rules all the time I get a permit when I need a permit I get an arborous letter when I need an arborous letter it was on a Saturday we thought that we were allowed to get an arborous letter because it's showing that it's her property so under the arborous letter we're allowed to do it and that supersedes the permit has the stump been removed the stump has been removed and we planned on planting another tree the customer wants to put another tree she loves her trees and the tree that she was the tree that the size of the tree that she's putting is four times the size of the trees that the city's replacing them with she's putting a much bigger Tree in and and she's putting a live oak not a Laurel Oak which Laurel Oaks they last about 40 50 years she's putting a tree that lasts hundreds of years all right if you had any calls to remove any other trees in the rideway there on Royal wood I I I mean I have but I haven't done anything because of what's going on here okay I'm just curious how many people along Royal wood want to replace trees it the in the whole neighborhood they want because they're they're they're the trees are bad Miss Nash will will she'll come up here and testify to that as well it's she walks the neighborhood every day okay and what condition did you find the tree in when you removed it did you there was large limbs on the ground when we came out on the Saturday that that's why we we took it down immediately um the picture that we have that I submitted you can see the disease in it the picture that the city submitted is a picture where it looks all beautiful it's it it it it's all nice it's green it does have a lot of missl toe right and if you look at the city's picture you don't see any The Missle to they took it when it's all beautiful and nice I don't know when that picture was taken how far back they got it off the computer the picture was show uh presented to show where the uh to get more of a depiction of where the tree was which shows it was in the right way Miss Miss Mo you just wait then I'll hear from you again okay yes sir all right anything else Miss Kali yeah just miss Nash all right Miss Nash Miss Nash you are the resident there at 876 yes my husband and I are he would be here today but he's on a trip business trip all right what do you have for us well the tree has been sick for a long time and we have actually the three in the front my husband's been commenting on for years he's going these three trees are dying and we could see branches branches were con constantly falling out of the tree and so we I do have we have lots of missl toe in them and we've had arborus tell us before you know that the trees were in poor shape I only have two um the first is Kevin's Tree Service where he came to trim out from two of our Oaks a lot of mistletoe from this is in 16 and then tree monkeys in 20 2020 where they came out and they were cutting some of the mistletoe out and trying to get some of the Deadwood out of the trees at that time and so I can give these to you if you'd like yes has the city seen these no no sir all right before I introduce them M Ross you want to take a look soon as you Lo and we had no intention of breaking any laws I feel like I'm in the principal's office today but we we just wanted to take care of a situation that looked bad and we were going to try to replace it I had every intention of replacing it with a a larger tree but if the city has preference for what trees they want there we'll put it in but we neither Anthony or I were trying to do anything illegal we were just trying to take care of a bad situation I didn't realize the city had control over the trees we've been taking care of them for years what size tree did you plan on uh replacing what size yes I was probably looking at it probably a 2016 to 18 foot tree I don't know was it wasn't going to be a Laurel Oak though because I know they're really bad for diseases all right anything else no that's all thank you thank you one all right I'm going to accept these two documents as the respondents exhibits two and three for what was that you are correct would be three and four right Miss Nash I have a question for you want to come back up the tree monkey document you given me exhibit four has been marked that's dated 19 2020 was that an estimate that was an estimate and we did we did do that had that done I just didn't have the copy of that all right and uh one dated January 19 2016 they did remove ml toe at that time yes the photograph that uh Mr Gali gave me was that taken before or after the missile toe was removed that's after the missile toe was removed before no that would be let me see let me see okay so this this Photograph that was before the leaves came back on the tree that's how much mistletoe was in the tree so this was a picture taken before uh January 19th 2016 well that picture I think was taken Anthony would you take that this last year right this year okay okay I'll hear from Mr gal get anything else ma'am that's all thank you all right Mr Gali a couple of questions on what you've given me as exhibit one when was that taken that was taken right before the tree was removed um that that was taken uh for the AR burst so the if you look at if you look at the arborous letter whatever the date is there it was taken the day before or or the day of the is actually do an onsite inspection yes sir I noticed that his report does not specify that he did an onsite inspection he he does he always goes out and looks at all our jobs how do you know he was actually out there um the picture who who took that he did that was February 28th I I I assume your honor and I said it was the day of or the day or the day before because sometimes he sends me the letter the same day sometimes it's the next day and when was the tree removed the day that we got the permit on on the Saturday it was the permit did you get not no not no the the the arborous letter the day we got the arborous letter so you the Arbor's letters dat February 28 and that's when it was removed if if that's the say it was that Saturday I see a yellow car in the photograph is that a tree monkey car or is that that's a tree monkey car okay all right anything else no sir um just your honor I don't know if you know what mistletoe is mistletoe is a parasite that grows into the tree it sucks all the water and nutrients out of the branch once it once the mistletoe dies everything past the missl toe breaks off and dies I I know very well what is all right thank you sir all right Miss Boer you had something else you wanted to add no sir I added it already come up please no sorry I added um what was needed to be said I was clarifying the picture that we I provided which shows that it was just showing reference of whether was located showing that it was on the right away okay that referring to what Mr um and this Anthony do you know when this was taken no sir that was our Google yes Google yes sir so we don't know when Google Earth took this no sir it was just showing the reference of the tree being between the sidewalk and the street which uh clearly shows us in the right way well if you you saw this Photograph but you look at it again my question to you and you can CAU us on this before you answer I'll give you a few minutes is is that tree need removed so I'll let the city take a look at it I guess my question is if someone had come to the city and asked the city to remove that because it was disease with the city had removed Mr Mercy may may I uh may I make some comments yes hi Mr Marcy if I could clarify two things one is that the tree wasn't the right way so it was not an utility easement um um it's clearly between um the sidewalk and the street and that is a RightWay um section of the of the subdivision so that is under the jurisdiction of Public Works so the city was not given the opportunity to assess the tree because the tree was removed without the city's knowledge we received a complaint about um the removal of the tree and that's how we um got knowledge um I can ask um the city to based on the picture which is not the same thing as um looking at the real you know tree you know doing the inspection if um the seed the city would remove now we receive complaints um in public works receive complaints not my department it's Public Works about trees being in danger or you know sometimes it's raising sidewalks and and we afraid people will trip on the sidewalk so we act on those but we need to be alerted and it's the city's action right the city is the one that has to remove the tree the city is responsible for removing the tree and for replanting the tree um so I wanted to clarify that the tree and we have you know um GIS maps that show that the tree was in the right way so it was not in utility e and because of that the statutes should not apply and know let um our you know attorney talks about that um the other thing is the clarification of the six replacement trees um the LC gives the schedule for replacement and uh trees between 18 and 23 Ines require three replacement trees but also gives um the LC gives the schedule that if it's um trees were removed without a permit then they should be doubled so there is a schedule in our LC that provides that uh that tree should have been replaced with six trees and that's why we have six trees in the request okay okay and the replacement trees would have to be what size we require two and a half inches that's the minimum and that's the Cal calber the calber yes at at at the base of the tree I think there is a distance from how how six Ines from from from the base okay okay okay thank you Miss Ross M Ross I have a couple of questions yes well I'll let you have say what you want to say first thank you thank you Mr Mercy just real quickly um though we don't think that the statute applies because the the tree is located in the right of way even if it did the arborous letter doesn't satisfy the statutory requirements um per Florida statute the um the report has to has to state that the tree poses an unacceptable risk to persons or property and the statute says that that occurs if removal is the only means of practically mitigating its risk below moderate as determined by the tree risk assessment procedures um outlined in the best practices tree risk assessment assessment SEC second edition um the arborous letter does not speak to any of that it does not state that the tree poses an unacceptable risk to persons or property and it does not state that removal of the tree is the only way of mitigating that risk so again why is it I'm trying to get it in front of me see track out here did I give someone the the photograph I think okay thank you so what are the two defects in the arborist certification uh the defects in my assessment are that the arborist letter does not state that removal of the tree is the only way to mitigate um the risk of unacceptable or an unacceptable risk to persons or property and the statute 63045 only allows the removal of a tree without permit if the arous letter shows that and states that and it does not okay and any other way that you see that the arborous certificate is insufficient no sir right anything else yes sir right of course this poses a very interesting question in regarding the interpretation of 163.427 [Music] when it comes to whether it does or does not apply to right of way I was just looking for that I was sitting over there and I haven't found anything thus far um theough the intent of the statute certainly seems to be to protect the residential area of the property and in any public area would would be outside the realm of that statutes um reach but I I can't find anything thus far consuing that and I agree with you it is an interesting question I'd like to research further yeah well it's a pivotal question um and here I think the city's prepared to show through GIS mapping and the and and property records that the that the trees located in the right way so we can provide evidence of that well I based on the photographs and the survey I think it's quite clear that the tree that was removed was located within the utility e so I don't see that as a question the question yeah it's not in the utility is me it's it's clearly not in the utility is me and we can show that the tree was not in the utility is meant that's that's one point the other point Mr Mar here with due respect I'm not an attorney but um I think the statutes would give a private you know um Property Owners the ability in an emergency to remove a tree without a permit now the city doesn't need that because we can act at any time right so if we were aware that there was an emergency the city would act and then so we would we do not need in a way the protection of the statute I would say because we can act at any time if there is a danger uh in the right way right um and we would replace we would do whatever it's needed did but um I think the statute is really to protect private owners from acting if there is an emergency there is a hurricane coming um to act so don't that they don't need to go through the process of a permitting so I think that's the intent of the the all right well I want to understand where this tree really is there is a utility easement showing on the survey on the property but the tree and the and the survey doesn't show any trees right they have a survey showing their property and there is an utility eement we are not disputing that the tree is on the right away it's not within property lines it's with it's between the sidewalk and the and the street itself and I I can show you another map and we took a uh uh in the break we got another map to show where the tree okay well let me if you want to introduce that let me see it and I'd also add that the the um the extent that we can rely on this survey is is questionable it's it's a survey that could be there could be errors remember the last magistrate hearing we had the the instance instance of the fence look that where the survey showed that it was on the land on the property owner's property and that was an incorrect survey so um not to the not sure the extent that we can rely on this survey I think there's better evidence to rely on I just Mr Gali you want to come forward all right I just want to see where we okay okay okay all right you want to introduce Eis evidence all right Mr Gali before I receive them into evidence let you take a minute take a look at them then I'll decide whether to admit those for I'm [Music] sorry if you want to right go ahead to the microphone from the the um what exhibit is that going to be sorry what exhibit is that going to be this will be the city's exhibit number two I guess no they had 15 a second let me yeah they had 15 right from the beginning all right just a second there's three pages I'll receive that as the city's exhibit two so on the exhibit to it's showing something different than the survey um that the homeowner sh provided to us um the survey that was provided to us shows that the property goes to the street that's that's showing and I I'd like to know who made those lines on that map where where does that come from um because they're saying that our survey can be wrong who's saying that that survey is not wrong all right anything else that's all your onor M Korea question can you tell me who prepared these documents so these are GIS documents um in in and to answer the question that was posed we have the preliminary subdivision plan we have a subdivision plan that shows what is right away and what is a private property so the survey here is just shows the internal property lines right so the it's the property lines and the property the private property shows as um um Royal Wood Lane in the map here but doesn't detail what you have in Royal Wood Lane you would have a sidewalk the lens skits so it doesn't show it's it's not serving the road it's just serving the property but we have plans that shows where the property lines ends and where the RightWay starts and the RightWay Inc compasses not only the the the street itself where the cars you know are running but it has sidewalks you have lscape um strips you have other utilities going on the Bri away so we have it's larger than the street itself right right but this is these are maps that are given from GIS from the property appraiser you can see those usually the sidewalk is a good measure to the one one side of the sidewalk facing the road the the property um is the is the limitation of the right so the utility easement would lie between the house and the sidewalk utility easement is what they showing here is within their property but it's not right away okay the sidewalk would be outside that line outside the property line all right thank you you're do anyone else have anything to offer at this time Miss Nash your honor I don't know all the legal uh ramifications I don't know all the legal mumbo jumbo that everybody else is going uh talking about over here in this big area I just know that we've been taking care of these trees for all these years mowing that area around down there and we weren't trying to do anything and Anthony wasn't either we were just trying to take care of a bad situation and I'm I'm sorry that we broke a law we didn't know we were breaking any laws there was no intent to break a law it was just an intention to take care of a dangerous tree that needed to be removed and we were going to replace it with something else if un known this they been easier to go through the city I would have done that but we we just took care we thought we were taking care of a bad situation and really the city's getting something out of it because they're not having to cut the tree down and they're not having to replant anything if they allow me to replant something so I'm sorry that we're having to even go through all this for the tree in my yard sorry Anthony's having to go through all this too I apologize to the court I apologize to you all but I think there's a lot of people in town that don't really realize what can happen if they cut down a tree on the easement all right I'm inclined to continue this hearing until we can establish clearly that the tree is in the right of way so I'm going to continue the hearing until the next meeting when is the next special magistrate hearing I can tell you I can tell you myself it's June 27 [Music] 27 it be June 27 the same place at 10 am and here are my concerns uh my inclination right now is that if the tree indeed is in the right away then uh I I think it would have been removed improperly uh one thing really bothers me if the tree is in the right away and each property owner can remove trees that they feel are diseased and Mr gangal you've told us that several people along there feel that the trees are removed then uh before you know it there won't be any trees in the right away uh and it'll change the entire character of the neighborhood uh so at the next hearing uh I would ask that both parties be prepared to show me exactly where that tree is if it isn't the right of way then I don't think that chapter 16345 applies uh so we're continued until that date and time thank you d I'll