This week marks the first anniversary of when House Bill 1159 was brought to the attention of the Florida Legislature. The bill, called “Private Property Rights,” provides for private property owners to have more autonomy over their land. The cost of this new right, however, came at the expense of one of the most vulnerable living beings on our planet – trees. The bill, which was adopted as law on July 1, 2019, permits for a governmental hands off approach to trees on residential properties and allows for property owners to remove, trim, cut down, and dispose of any tree on their property. What is disguised as a win for private property owners is a tragic loss for Floridian trees.
What does this new law mean?
The law is organized into two provisions and its new name is Florida Statutes § 163.045. Section one prohibits 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 provided that the owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that that tree presents a danger. This section also prohibits a local government from requiring that a new tree be planted to replace the former tree. The bill does not apply, however, to the exercise of specifically delegated authority for mangrove protection.
Section two is primarily focused on the trees that are in a designated right-of-way for any electric transmission or distribution line. Much the residential trees, there is no requirement to involve the local government from intruding on the removal of these trees.
Okay – so what does it actually mean?
One of the most important aspects of this bill is that it only applies to residential property and not commercial property. In order for a private property owner to remove a tree on their residential property, all that is needed is a consultation by a certified arborist designating the tree as presenting a danger to persons or property. From there, no permit is needed and no further approval by a local or state government is needed to cut the tree down. Under this new legislation, a resident may remove a tree from their residential property without ever having to communicate with the local government.
The bill is unclear on how to obtain documentation from a certified arborist; it does not instruct of if the arborist needs to visit the tree, if the arborist needs to see the tree, or what constitutes a present danger. This could mean that a resident could contact an arborist in a different state, receive the requisite documentation for tree designation as dangerous, and cut down the tree. More importantly, in order to become a certified arborist, an arborist will be tested on Tree Risk Management, but it is not required to hold any credentials in tree risk assessment. This means that an arborist does not need to have any formal training on how to properly assess any risks posed by a tree and is merely tested on how to manage potential risks posed by trees.
The legislation also provides no information on what to do with the arborist certification documents or if the documentation is needed to be provided to the local government. This vagueness could allow for a property owner to skirt around the arborist certification all together.
There is a dangerous amount of wiggle room in determining what “hazardous” means within the law. So long as the tree poses some sort of “threat to nature” it is up for grabs by the property owners. In comparison to trees on commercial property, removal is permitted by the applicable local government if a donation to a local tree bank has been made. This ensures that a replacement tree is planted to balance the removal of the commercial property tree.
The only aspect of the legislation that is clear is minimal government intervention on which trees can and cannot be cut down. In passing this legislation, the state has required that each municipality have a laissez faire approach to tree protection and has attempted preserve the rights of property owners. Although the legislation allows for private property owners to have all rights required to enjoy their property, this new bill has just made it easier for trees to be removed from the legislature’s priority list, literally and figuratively.
Written by Marissa Goodrum, EELJ Associate Editor
February 19, 2020
Sources
https://www.flsenate.gov/Session/Bill/2019/1159
Fla. Stat. § 163.045
https://www.heraldtribune.com/opinion/20190708/miller-under-new-florida-law-no-tree-is-safe
https://www.nwfdailynews.com/news/20190810/law-removes-local-oversight-on-tree-work
Barry Law Environmental and Earth Law Journal 
Leave a comment