The Volokh Conspiracy
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From Wednesday's decision in Vickery v. City of Pensacola, by Judge Thomas Winokur, joined by Judge B.L. Thomas (over a dissent by Judge Scott Makar):
Larry and Ellen Vickery appeal from an order denying dissolution of a temporary injunction prohibiting them from removing a tree from their property. Because the injunction was improper, we reverse.
The Vickerys own a residential lot in the North Hill Preservation District of Pensacola, on which a live oak tree is situated in the rear corner. Hoping to build a house and wanting to avoid potential damage from the tree, the Vickerys applied to the Parks and Recreation Department for a permit to remove the tree. The permit was denied shortly before section 163.045(1), Florida Statutes, came into effect on July 1, 2019. This statute authorizes residential property owners to remove trees from their property without interference from local government if the owners obtain documentation, from an International Society of Arboriculture (ISA)-certified arborist or Florida-licensed landscape architect, indicating that the trees present a danger to persons or property.
The Vickerys' builder emailed the City of Pensacola (the City) to inform it that the Vickerys planned to remove the tree. The builder attached a letter from an ISA-certified arborist indicating that the main trunk of the tree had "severe decay" resulting from the prior removal of one of the tree's main stems, as well as other evidence of the tree "rotting on the inside." As a result, the letter contained the arborist's opinion that the "location of the tree puts homes and the occupants at risk of severe damage and safety" when the tree fails.
The City filed an action for declaratory judgment seeking a determination that section 163.045(1), Florida Statutes, did not prohibit the City from enforcing the local code provisions requiring the Vickerys to obtain a permit to remove the tree. It argued that the statute's use of the words "documentation" and "danger" is ambiguous, that the Vickerys' documentation was insufficient, and that the Legislature must have intended to require property owners to obtain an objective evaluation based on standards used by ISA-certified arborists. The City also requested a temporary injunction prohibiting the Vickerys from removing the tree.
The trial court granted the temporary injunction, which the Vickerys moved to dissolve. In a hearing on this motion, the City called experts to contest the Vickerys' arborist's finding of danger. Additionally, a landscape architect testified that those in his profession are not bound by written guidelines, that they use their own discretion to determine how to assess the danger of a tree, and that he would not typically prepare a written report of the danger.
After the hearing, the court denied the Vickerys' motion. In its order, it discussed the City's likelihood of success on the merits of the declaratory action. In addition to accepting the City's contention that the tree was not enough of a danger to remove, the court interpreted section 163.045(1). It stated that "the Legislature left express clues in the statutory language to narrow the scope of 'danger' and 'documentation' " and concluded that "[t]he Legislature must be presumed to know the meaning of certified as an arborist or licensed as a landscape architect. By selecting only those two professions, the Legislature has implicitly adopted the professional standards applicable to the two respective industries." It further concluded that "the only reasonable interpretation … is one where: (1) an arborist or landscape architect must determine that a tree is a danger; and (2) for the determination and documentation to be rendered utilizing only the methodologies and official documents applicable to the two respective industries." The court determined that the statute applies only when a tree is dangerous, as substantiated by documentation, and also determined that section 163.045(1) does not preempt the City "from challenging, through submission of its own expert opinions, the conclusions reached by an arborist who generated questionable documentation that [the tree] is dangerous."
The Vickerys brought this appeal. They argue that the trial court ignored the plain meaning of section 163.045(1). The City counters that the statute is ambiguous and the trial court correctly interpreted it, including that the statute should be read to require arborists and landscape architects to follow industry standards and methods. It also argues that the trial court's interpretation does not impede the Legislature's purpose, which the City contends is to relieve residents of a bureaucratic process when a tree on their land is dangerous. Additionally, the City maintains that enforcing the local code is permissible because section 163.045(1) does not preempt all municipal protection of trees, that the Vickerys should have appealed the original denial of their permit application, and that the statute should not apply to the Vickerys at all because they do not yet reside on the property containing the tree. Finally, the City opposes a plain-language interpretation on the ground that it would permit property owners to determine for themselves whether a tree is dangerous, as they could simply pay for the opinion they want.
The Vickerys win; for more, you can read all 11,000 words of the opinion. You can also read "Woodman, Spare That Tree!," or, for that matter, this ditty from my computer days programming in LISP (back at Inference Inc. in 1986):
Reclaimer, spare that tree!
Take not a single bit!
It used to point to me,
Now I'm protecting it.
It was the reader's CONS
That made it, paired by dot;
Now, GC, for the nonce,
Thou shalt reclaim it not.
(To be precise, I think I saw it in a UNIX cookie file even earlier, but it took learning LISP to grasp it.)
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