Residents in Florida are no stranger to the potential hazards posed by dead, dying, diseased, and overgrown trees. In an effort to make the maintenance and removal of such trees easier for residential property owners, Florida passed into law Florida Statute §163.045 (the “Statute”). The Statute limits the ability of local governments to regulate maintenance, removal, and mitigation of trees when a property owner acquires the proper documentation from a certified arborist or licensed landscape architect.
Many local governments already provide exceptions within their tree permitting ordinances for the removal or maintenance of dangerous trees and some suspend the ordinance requirements all together during declared emergencies. However, these ordinances can vary widely and require the time and expense of the property owner for review and approval by multiple levels of government before any action can be taken.
The Statute also removes the requirement that a residential property owner receive approval from the local government before requesting that an electric utility maintain vegetation in an adjacent right of way. Importantly, it does not affect laws put in place by the State or Federal governments, and does not apply to any authority regarding mangrove protections.
While the Statute will make it easier, and more affordable, for residential property owners to take care of dangerous trees on their property, the language of the Statute leaves a lot of room for interpretation.
An initial question is who can take advantage of the Statute, or what does the Statute mean by “residential property?” The Statute does not provide a definition and local governments can define uses in many ways. Does “residential property” mean property that is actually used for a residential purpose or does it refer only to property in areas specifically zoned residential by local government ordinances? For example, some cities and counties have zoning ordinances that allow a single piece of property to be used for both commercial and residential purposes at the same time. These properties may have a zoning category of either commercial or residential. Would the Statute permit removal of a tree in front of an apartment building that included some stores on the first floor if it were in a residential zone, but not if the same building were in a commercial zone?
Another concern is whether common areas within community associations fit within the definition of “residential property.” Some associations have tens or hundreds of trees, planted by developers and required by their governing documents, under their care. Would the community association be considered a residential property owner when looking to remove dangerous trees from around a playground, clubhouse, or parking lot?
Liability for Damage to Utilities and Public Property
Once we know who can take advantage of the Statute, who is responsible to pay when maintenance or removal of a tree interferes with underground utilities or structures within government rights-of-way; like sidewalks and stop signs?
The Statute prohibits local governments from requiring a “notice, application, permit, fee, or mitigation” where a residential property owner obtains the proper documentation. Additionally, the Statute does not require that the maintenance or removal be done by a professional, but only requires that a tree be determined dangerous by a professional. This implies that a property owner can potentially take it upon themselves to trim, prune, or remove a tree on their own and that a local government may only find out that a tree has been altered after damage has been done.
Where a professional service would know the precautions to take and notice to provide, the average property owner may have no idea where utility lines exist under their property, if a tree’s roots reach beneath a sidewalk, or whether cutting down limbs could interfere with power lines. If it is determined that the responsibility is on the property owner, an unsuspecting owner may be left to fix thousands of dollars’ worth of damage. They may also be financially responsible for the affect damage may have on surrounding properties. Where a community association is the property owner, the cost of repair may take the form of assessments shared by owners within the associations. If it is determined that the responsibility is on a local government or utility provider to repair, the cost may be shifted to taxpayers or customers, making the irresponsibility of one the responsibility of the many.
It is yet to be seen whether the Legislature will act to clarify some of the questions posed by the language of the Statute, or whether the courts will be required to make interpretations based on the language’s real-life effects. But either way, the changes to the Statute are undoubtedly a win for private property rights advocates and will benefit property owners as Floridians continue to battle the dangers posed by dead, dying, diseased, and overgrown trees.