“Woodman, Spare That Tree!,” Says Pensacola

The Wednesday decision will be in City of Pensacola v. VickeryBy Judge Thomas Winokur and Judge B.L. Thomas (over a disagreement by Judge Scott Makar).

Ellen and Larry Vickery seek relief from an order refusing to dissolve a temporary injunction that prohibited them from taking down a tree on their land. We reverse the order because it was not proper.

One of the Vickerys’ residential lots is in Pensacola’s North Hill Preservation District. A live oak tree can be found in its rear corner. They applied for permission to have the tree removed by the Parks and Recreation Department in order to build their house and avoid any potential damage. Shortly before Florida Statutes 163.045(1) became effective, the permit was refused. If the property owner is a resident, the statute permits them to cut down trees without any interference by the local government.

To inform the City that they were going to take down the Vickerys tree, the Vickerys builder sent an email to the City. A letter was attached by the builder from an ISA certified arborist indicating the severity of decay in the trunk. This stem had been removed prior to the removal of another tree. There were also other signs that the tree was “rotting inside”. Accordingly, the letter stated that the arborist believed the tree’s “location puts homeowners and their safety at great risk” in the event of its fall.

In a declaratory judgment action, the City sought to determine whether section 163.045(1) of Florida Statutes did not prevent the City’s enforcement of local code provisions that required the Vickerys obtain a permit for the removal. The City argued the use of “documentation”, “danger” in the statute is ambiguous. They also argued the Vickerys’ documentation wasn’t sufficient. According to the Legislature, the requirement for property owners to receive an objective evaluation based upon standards established by ISA certified arborists must be met. A temporary injunction was also sought by the City to prevent the Vickerys’ from removing it.

A temporary injunction was issued by the court. The Vickerys sought to disband it. At the hearing, experts were called by the City to dispute the Arborist Vickerys found of danger. Landscape architects are also able to testify that their profession is not bound by any written guidelines. They can use their judgment to determine the danger to a tree’s health and would never prepare a report.

The court granted the Vickerys motion after hearing. It discussed with the court the likelihood that the City would succeed on the merits. It accepted City’s argument that the tree was too dangerous to take down, and the court also interpreted section 163.045(1). The court stated that the Legislature had left explicit clues in section 163.045(1) to limit the scope of “danger” and “documentation”. It concluded that[t]The Legislature should be assumed to understand the meanings of licensed landscape architect or certified arborist. The Legislature implicitly accepted the standards for the respective professions by limiting its selection to those two fields. 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.” According to the court, the statute is only applicable when a tree poses a danger, which must be supported by documentation. It also found that section 163.045(1) doesn’t preclude the City from challenging the decisions of arborists who produced questionable documentation. [the tree]”It is extremely dangerous.”

This appeal was filed by the Vickerys. The Vickerys claim that the court did not understand section 163.045(1). However, the City counters by arguing that the statute was unclear. They also argue that the trial judge correctly understood it. This includes that the statute should read so that landscape architects and arborists must follow industry standards. The City also claims that the interpretation of the trial court does not hinder the purpose of the Legislature. According to the City, the intent is to alleviate residents from a bureaucratic process where a tree is on their property and is considered dangerous. Furthermore, the City claims that enforcement of the local codes is permitted because section 163.045(1) has no preemptive effect on municipal protection for trees. The Vickerys must have appealed against the initial denial of their permit request. Also, because the Vickerys do not live on the property where the tree is located, it should be noted that the statute should not apply. The City also opposes plain-language interpretation because it allows property owners to decide for themselves whether the tree is safe or not. They could just pay for an opinion.

You can read the entire opinion of 11,000 words. The Vickerys won. Also, you can read the “Woodman Spare That Tree!” or this humorous ditty that I wrote back in my LISP programming days (back in Inference Inc. 1986).

You can save the tree by using Reclaimer!
Don’t miss a thing!
That used to be what it meant to me.
It’s mine to protect.
It was the CONS of the reader.
This made it. Added by dot
Now, GC.
It is forbidden to be reclaimed.

It was in a UNIX cookie that I remember seeing it. However, it wasn’t until I learned LISP that I understood it.