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: CS/SB 518
INTRODUCER: Community Affairs Committee and Senator Brodeur
SUBJECT: Private Property Rights to Prune, Trim, and Remove Trees
DATE: January 20, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hunter Ryon CA Fav/CS
2. GO
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/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 an onsite tree risk assessment
performed in accordance with the tree risk assessment procedures outlined in Best Management
Practices - Tree Risk Assessment, Second Edition (2017). Documentation must be signed by a
arborist certified by the International Society of Arboriculture (ISA) or Florida licensed
landscape architect. The bill also defines "residential property" as a single-family detached
building located on an existing lot, 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 before engaging in tree pruning, trimming, or removal. A tree poses
an unacceptable risk if removal is the only means of practically mitigating its risk below
moderate, as defined by Best Management Practices - Tree Risk Assessment, Second Edition
(2017).
REVISED: BILL: CS/SB 518 Page 2
The bill takes effect on July 1, 2022.
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: CS/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: CS/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 Regular 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."
Additionally, 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
These 2019 provisions do not
apply to the exercise of authority for mangrove protection pursuant to ss. 403.9321-403.9333,
F.S.
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 Best Management Practices - Tree Risk
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.). BILL: CS/SB 518 Page 5
Assessment, Second Edition.
24
The stated purpose of Best Management Practices - Tree Risk
Assessment, Second Edition is to serve as a guide for arborists to assess tree risk as accurately
and consistently as possible, to evaluate that risk, and to recommend measures that achieve an
acceptable level of risk.
25
Best Management Practices - Tree Risk Assessment, Second Edition covers topics arborists
should include in tree risk assessments including:
26
Risk Assessment Basics
Levels and Scope of Tree Risk Assessment
Assessing Targets, Sites, and Trees
Tree Risk Categorization
Risk Mitigation: Preventive and Remedial Actions
Risk Reporting
Tree Related Conflicts That Can Be a Source of Risk
Loads on Trees
Structural Defects and Conditions That Affect Likelihood of Failure
Response Growth
Description of Selected Types of Advanced Tree Risk Assessments
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 tree risk assessment performed in accordance with the tree risk assessment
procedures outlined in Best Management Practices - Tree Risk Assessment, Second Edition
(2017). Such documentation must be signed by an arborist certified by the International Society
of Arboriculture (ISA) or Florida licensed landscape architect.
The bill also provides a specific definition of "residential property." Under this definition, the
protections provided by s. 163.045, F.S., only apply to a single-family, detached building located
on a lot 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 pursuant to s. 163.045,
F.S., the bill requires a certified arborist and a Florida licensed landscape architect to certify that
a tree poses “an unacceptable risk” to persons or property. A tree poses an unacceptable risk to
persons or property if removal is the only means of practically mitigating the risk below
moderate, Best Management Practices - Tree Risk Assessment, Second Edition (2017).
The bill takes effect July 1, 2022.
24
See ISA, Best Management Practices - Tree Risk Assessment, Second Edition (2017), available at: https://wwv.isa-
arbor.com/store/product/324 (last visited Jan. 19, 2022).
25
Id.
26
Id. BILL: CS/SB 518 Page 6
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.
B. Private Sector Impact:
None.
C. Government Sector Impact:
Local governments may avoid future legal costs associated with potential lawsuits filed to
challenge a local government’s implementation of s. 163.045, F.S., due to the specificity
provided in the bill.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 163.045 of the Florida Statutes. BILL: CS/SB 518 Page 7
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Community Affairs on January 18, 2022:
The CS modifies the definitions of “documentation” and “residential property” and
changes the title of the bill from “an act relating to residential home protection” to “an act
relating to private property rights to prune, trim, and remove trees.”
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.