The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Community Affairs
BILL: SB 518
INTRODUCER: Senator Brodeur
SUBJECT: Residential Home Protection
DATE: January 13, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hunter Ryon CA Pre-meeting
2. GO
3. RC
I. Summary:
SB 518 amends a provision in current law prohibiting a local government from requiring a
notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of
a tree on residential property if the property owner obtains documentation from a certified
arborist or a licensed landscape architect, that the tree presents a danger to persons or property.
The bill adds certain qualifiers and definitions to provide clarity in the operation of the existing
provision. Specifically, the bill defines "documentation" as tree risk assessment processes and
guidelines established by the International Society of Arboriculture (ISA), the American
National Standards Institute (ANSI), or the International Organization for Standardization.
Documentation must be signed by a certified arborist or registered landscape architect licensed
under part II of ch. 481, F.S., providing licensure clarification. The bill also defines "residential
property" as an existing single-family detached building located on an existing lot of record,
actively used for single-family residential purposes, and which is either an existing conforming
use or a legally recognized nonconforming use following the local jurisdiction's applicable land
development regulations.
The bill requires a property owner to possess documentation that a tree poses an unacceptable
risk to persons or property instead of a present danger before engaging in tree pruning, trimming,
or removal. The bill states that a tree poses an unacceptable risk if removal is the only means of
practically mitigating its risk below moderate, as defined by the ANSI A300 (Part 9)—2017 tree
risk assessment standards, using a 2-year timeframe.
The bill takes effect on July 1, 2022.
REVISED: BILL: SB 518 Page 2
II. Present Situation:
Home Rule Powers and Preemption
The Florida Constitution
The Florida Constitution establishes and describes the duties, powers, structure, function, and
limitations of government in Florida. Article VIII, section 1 of the Florida Constitution, endows
counties and municipalities the power of self-government or home rule power. Under the home
rule power, local governments have broad authority to exercise the state's sovereign police
powers and legislate on any matter that is not inconsistent with the federal and state constitution
and laws.
Counties
A county without a charter has such power of self-government as provided by general or special
law and may enact county ordinances not inconsistent with general law.
1
Counties operating
under county charters have all the powers of local self-government not inconsistent with general
law or with special law approved by a vote of the electors.
2
General law authorizes counties "the
power to carry on county government"
3
and to "perform any other acts not inconsistent with law,
which acts are in the common interest of the people of the county, and exercise all powers and
privileges not specifically prohibited by law."
4
Municipalities
Municipalities may be established or abolished, and their charters amended by general or special
law. Municipalities have governmental, corporate, and proprietary powers to conduct municipal
government, perform municipal functions, and render municipal services. They may exercise any
of these powers for municipal purposes except as otherwise provided by law.
5
Chapter 166, F.S.,
also known as the Municipal Home Rule Powers Act,
6
acknowledges these constitutional grants
of police powers and better defines municipal powers of self-government.
7
Chapter 166, F.S.,
provides municipalities with broad home rule powers to act in a manner not inconsistent with the
Florida Constitution, general and special law, and a charter for the county in which the
municipality is located.
8
1
FLA. CONST. art. VIII, s. 1(f).
2
Id. at (g).
3
Section 125.01(1), F.S.
4
Id. at (w).
5
FLA. CONST. art. VIII, s. 2.
6
Section 166.011, F.S.
7
Florida House of Representatives, Publications, The Local Government Formation Manual 2017-2018, p. 16, available at:
http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=2911&Ses
sion=2017&DocumentType=General Publications&FileName=2017-2018 Local Government Formation Manual Final
Pub.pdf (last visited Dec. 9, 2021).
8
Section 166.021(4), F.S. BILL: SB 518 Page 3
State Preemption
Although local governments have broad home rule powers, the state legislature may preempt this
self-government power and preclude local governments from exercising legislative authority in
particular areas of law.
9
Florida law recognizes two types of preemption: express and implied.
Express preemption requires a specific legislative statement; it cannot be implied or
inferred.
10
In cases where the Legislature expressly preempts an area or forbids local
governments from certain actions, there is no problem with ascertaining what the Legislature
intended.
11
On the other hand, implied preemption is found where the local legislation would
present the danger of conflicting with the state's pervasive regulatory scheme.
12
Preemption of a
local government enactment is implied only where the legislative scheme is so pervasive as to
evidence an intent to preempt the particular area to the state, and there are strong public policy
reasons for doing so.
13
In cases determining the validity of ordinances enacted in the face of
express and implied state preemption, the effect has been to find such ordinances null, void, and
unenforceable.
14
Local Tree Pruning, Trimming, and Removal Regulations
Florida counties and municipalities have the home rule power to enact ordinances related to tree
removal and management. These ordinances regulate how private property owners manage the
landscape on their private property. Tree management ordinances address various aspects of land
use, including the species used in a given area. Some such ordinances require a property owner
to receive a permit or pay a fee before pruning, trimming, or removing a tree from their private
property.
For example, in Broward County, removing any historical tree
15
without first obtaining approval
from the Board of County Commissioners is prohibited. Broward County also outlaws removing
any tree without first obtaining a tree removal license from the Environmental Protection and
Growth Management Department.
16
Furthermore, municipalities within Broward County have
enforced their tree preservation regulations in addition to Broward County's tree regulations.
17
9
Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009).
10
See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894
So.2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309 (Fla. 2008).
11
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla. 2010).
12
See GLA & Assocs., Inc. v. City of Boca Raton, 855 So. 2d 278, 282 (Fla. 4th DCA 2003).
13
Id.
14
Thomas v. State, 614 So.2d 468, 470 (Fla.1993); Hillsborough County v. Fla. Rest. Ass'n, 603 So.2d 587, 591 (Fla. 2d
DCA 1992) (“If [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void.”)
15
Ch. 27, art. XIV, s. 404, Broward County Code of Ordinances (2018), defines a “historical tree” as a particular tree or
group of trees, which has historical value because of its unique relationship to the history of the region, state, nation or world
as designated by the Board of County Commissioners.
16
Id. at s. 405. Nuisance trees are exempt from the prohibitions in the tree preservation ordinances. Id. at 406. A “nuisance
tree” is defined to be one of 10 identified trees including the Schinus terebinthifolius (Brazilian pepper tree/Florida holly). Id.
at 404.
17
Id. at s. 407. Municipalities may regulate exclusively within their jurisdictions upon certification by Broward County with
some exceptions. BILL: SB 518 Page 4
Similarly, Orange County requires a permit or authorization to remove a protected tree
18
unless
an exception applies. The law does not restrict tree trimming or maintenance but encourages
property owners to practice proper trimming habits that avoided the need for "severe" trimming
of any tree.
19
Municipalities within Orange County are also allowed to provide tree regulations
within their jurisdictions.
20
Section 163.045, F.S. – Tree Pruning, Trimming, or Removal on Residential Property
During the 2019 legislative session, the Legislature created s. 163.045, F.S., which prohibits
local governments from requiring "a notice, application, approval, permit, fee, or mitigation for
the pruning, trimming, or removal of a tree on residential property if the property owner obtains
documentation from an arborist certified by the International Society of Arboriculture or a
Florida licensed landscape architect that the tree presents a danger to persons or property." This
section of the law also provides that a local government may not require a property owner to
replant a tree that was pruned, trimmed, or removed in accordance with this section.
21
Notwithstanding, the provisions of s. 163.045, F.S., do not apply to the exercise of authority for
mangrove protection pursuant to ss. 403.9321-403.9333.
22
The subject matter of s. 163.045, F.S., has been the subject of litigation on several occasions
since its enactment. Courts have grappled with the statute's express language and whether local
governments maintain some residual authority to regulate tree management on private property.
23
Tree Risk Assessment Standards
In 2017, the International Society of Arboriculture (ISA) and the American National Standard
Institute (ANSI) produced the first national standards to address tree risk assessment. The ANSI
standards represent the industry criteria for performing tree care operations. The standards can be
used for general familiarity with professional requirements and preparation of tree care contract
specifications. These standards are published in Part 9 of the ANSI A300 Standards.
24
The
18
Protected trees are native trees in certain zones and include Red maple, Red buckeye, and Pignut hickory trees. See Ch. 15,
Art. VIII, ss. 283 and 301(e), Orange County Code of Ordinances (2018).
19
Ch. 15, Art. VIII, s. 278, Orange County Code of Ordinances (2018).
20
Id.
21
Section 163.045(2), F.S.
22
Id. at (3). Florida has three native species of mangrove trees growing along its coastline, which can be harmed or killed if
not trimmed properly. The “1996 Mangrove Trimming and Preservation Act” (Act) requires the Department of Environment
Protection (DEP) to regulate the trimming and alteration of mangroves statewide, except where DEP has delegated its
authority to local governments that meet certain requirements and request such delegation. The Act prohibits mangrove
trimming or alteration without a permit issued by DEP or a delegated local government,
unless the trimming or alteration falls
within certain exceptions. See Florida Department of Environmental Protection, Mangrove Trimming Guidelines for
Homeowners, “Introduction,” 4, available at https://floridadep.gov/sites/default/files/Mangrove-Homeowner-Guide-sm_0.pdf
(last visited Dec 9, 2021).
23
See Vickery v. City of Pensacola, 2020 WL 1190558, No. 1D19-4344 (Fla. 1st DCA 2020)(Appellate Brief, file Feb. 5,
2020) (Appealing from a Circuit Court of Escambia County injunction on the removal of a tree); see also Schuh v. City of St.
Petersburg, 2019 WL 10784582, No. 18-007493-CI. (Fla.Cir.Ct. 6th Jud.Cir., Pinellas County)( Plaintiffs alleged that before
altering their landscape in any way—including pruning, trimming, or removing trees—the City requires notification, an
application, and approval in violation of s. 163.045, F.S.).
24
See ISA, ANSI A300 Tree Risk Assessment Standard- Part 9 (2017), available at: https://wwv.isa-
arbor.com/store/product/133/ (last visited Dec. 9, 2021). BILL: SB 518 Page 5
stated purpose of Part 9, Tree Risk Assessment, is to provide performance standards for the
practice of tree risk assessment and to guide the development of written specifications, best
practices, training materials, regulations, and other performance measures.
25
Under Part 9 of the ANSI A300 Standards, the tree risk assessor shall inspect the tree, analyze
the tree, site, target, and information, and analyze the risk level posed by the tree. The level of
risk that is determined shall be reported to the client. A written tree risk assessment report should
include, but is not limited to:
26
The objective of the assessment;
The date of inspection;
Identification of the assessor(s) and their qualifications;
Identification and location of the specified tree(s);
Part(s) of the tree assessed;
A description of the methodology used;
Time frame for the assessment;
Tree risk assessment data;
Risk rating for the tree or tree part(s);
Recommendations for Risk mitigation options and/or recommendations;
Recommendation for additional assessment(s), when appropriate;
The residual risk following for any recommended mitigation;
Recommendations for monitoring and follow-up; and,
A statement of the limitations of the inspection and assessment methods methodology.
Part 9 of the ANSI A300 Standards also provides that the assessment should give
recommendations to mitigate risk by means other than tree removal and contain an
advisory that not all risks associated with trees can be eliminated. Monitoring, mitigation, and
future maintenance recommendations should be made based on the objective, targets, current
level of risk, mitigation recommendation, and residual risk.
27
As a complementary component to Part 9 of the ANSI A300 Standards, the ISA provides a Basic
Tree Risk Assessment Form. This form utilizes tree risk assessment standards to provide a risk
rating matrix. The risk rating matrix considers the likelihood of tree failure and the consequences
of the failure to project a low, moderate, high, or extreme indicator.
28
III. Effect of Proposed Changes:
The bill amends s. 163.045, F.s., to provide a specific definition of "documentation." Under the
bill, the documentation a property owner must possess prior to tree pruning, trimming, or
removal is an onsite assessment performed by an arborist certified by the International Society of
Arboriculture (ISA) or a registered landscape architect licensed under part II of chapter 481 in
accordance with tree risk assessment processes and guidelines established by the ISA, the
25
ISA, ANSI A300 Tree Risk Assessment Standard- Part 9 (2017).
26
Id.
27
Id.
28
ISA, Basic Tree Risk Assessment Form, available at:
http://manoa.hawaii.edu/landscaping/documents/ISA_Tree_Risk_Assess.pdf (last visited Dec. 9, 2021). BILL: SB 518 Page 6
American National Standards Institute (ANSI), or the International Organization for
Standardization and signed by the certified arborist or registered landscape architect licensed
under part II of chapter 481. Currently law uses “Florida licensed landscape architect.” The bill
provides clarification on licensure requirements for architects.
The bill also provides a specific definition of "residential property." Under this definition, the
protections provided by 163.045, F.S., would only apply to an existing single-family, detached
building located on an existing lot of record, actively used for single-family residential purposes,
and which is either an existing conforming use or a legally recognized nonconforming use under
the local jurisdiction's applicable land development regulations.
Before a residential property owner may prune, trim, or remove a tree, the bill requires certified
arborists and registered landscape architect licensed under part II of chapter 481, to certify that a
tree poses an unacceptable risk to persons or property instead of presenting a danger to persons
or property. The bill states that a tree poses an unacceptable risk to persons or property if
removal is the only means of practically mitigating the risk below moderate, as defined by the
ANSI A300 (Part 9)—2017 tree risk assessment standards, using a 2-year timeframe.
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None. BILL: SB 518 Page 7
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 163.045 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.