Developer takes Huntsville to court over its tree cutting violations on Green Mountain
A Huntsville developer is taking the city to court after its proposals to remedy tree cutting violations for two Green Mountain subdivisions were denied in March.
Diltina Development Corporation filed two appeals on June 12 in Madison County Circuit Court of decisions by the city’s Board of Zoning Adjustments to reject its tree remediation plans for the Estates at Wade Point and Sunset on Green Mountain on Willow Drive.
Because Diltina was found in violation of the city’s slope development district regulations, building permits have been put on hold. Complicating the matter is that Diltina sold some of the lots for the Estates at Wade Point. It now faces a lawsuit in circuit court from two of the new owners.
According to documents, Diltina is seeking a jury trial in both of its appeals. Hearings have been set for Aug. 12.
While city officials said they can’t comment on pending litigation, Board of Zoning Adjustments attorney David Canupp said in response to the appeal that a proper appeal should be filed with the board rather than in circuit court.
March 18 meeting
The Board of Zoning Adjustments denied Diltina’s proposals for tree remediation for the subdivisions at its March 18 meeting.
According to the board’s minutes, Diltina representative Alex Maxwell acknowledged the developer knowingly allowed trees to be cut down in violation of city regulations to give Estates at Wade Point a better view.
Trees were also cut in an area marked “do not disturb” during work on Sunset on Green Mountain.
Maxwell appeared before the board in hopes that a tree remediation plan would be approved by the board to allow construction to move forward. But the three options Maxwell presented to the board for the subdivisions were denied.
City Director of Planning and Zoning Services Thomas Nunez said the developer can reapply in six months or come up with a significantly changed tree remediation plan.
Maxwell’s proposed options included two-to-one replacement utilizing 1-inch caliper trees, a one-to-one replacement utilizing seedlings or a one-to-one replacement utilizing seedlings and community beautification on the appellant’s 5-acre common area.
Maxwell told the board Diltina hired Geoffrey Ellison of Drennen Forestry Services Inc. who did a detailed site visit, and his recommendation would be to utilize seedlings for maximum regrowth. Maxwell told the board it was important to note each of the lots have plat restrictions to prevent further disturbances.
Board of Zoning Adjustments Chairman Martin Sisson asked how long it would take for the tree remediation with the seedlings to reach the height of the cut down trees. Ellison stated the seedlings would take a significant amount of time, and the trees that were cut were at least 20 to 30 years old. Some, according to the minutes, were 70 to 90 years old. Ellison told the board the trees were about 30 feet tall and about six to 16 inches in diameter.
Aerial view of trees cleared from the site of the proposed Estates at Wade Point on Green Mountain in Huntsville.Screen shot
Lawsuit
Maxwell said at the meeting his goal was to have a tree remediation plan accepted so the owners can move forward with building their homes.
That was not the case on May 20 when Beire and Shayna Castro filed a complaint in Madison County Circuit Court against Diltina Development Corporation and Green Mountain Realty.
According to the lawsuit, the Castros agreed to purchase one of the lots put on hold for $250,000. The lot they agreed to purchase was advertised with a “bluff view.” After they were under contract, the Castros were approached by owners of neighboring lots informing them there was a zoning issue with the land they were purchasing which prevented the others from obtaining certificates of occupancy, according to the suit.
The lawsuit alleges the Castros were later reassured by their real estate agent that “the tree matter” was not a big issue, that Diltina would get a variance from the city and the matter would be resolved quickly.
They are seeking a full refund, a return of the commission paid on the purchase price, commission paid on the build price and compensation for damages.
Sisson said at the meeting the right thing to do was for the developer to buy back the properties it had sold. Maxwell said three of the lots had been sold, including the one the Castros purchased.
Sisson voiced frustration during the meeting, stating the board has been reviewing tree remediation plans for years and trees are still being cut. Board members inquired about punitive measures by the city, stating that without them, the tree cutting violations would continue.
City officials said holding up building permits was punitive.
The city told AL.com the repercussions for not following the rules can range from a hefty penalty plus court costs to the appearance before BOZA to come up with a remediation plan.
Developers can be charged $500 according to state law for each ordinance violation, and each day the violation occurs counts as a separate offense.
The ordinance provides greater leverage for the totality of violations. In the past, each violation constitutes a separate offense. For example, the removal of a single tree could involve multiple violations for size, girth, species, age, location, value of wood, etc. There is also potential for additional penalties until the property is determined to be restored.
Efforts to reach Diltina attorney G. Bartley Loftin about the appeals were unsuccessful.
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