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: SB 916
INTRODUCER: Senator Brodeur
SUBJECT: Residential Home Protection
DATE: March 10, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Paglialonga Ryon CA Favorable
2. JU
3. RC
I. Summary:
Section 163.045, F.S., dictates that local governments may not require 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.
SB 916 amends this section of law to define "documentation" as tree risk assessment processes
and guidelines established by the International Society of Arboriculture (ISA), the American
National Standards Institute (ANSI), or the International Organization for Standardization and
signed by the certified arborist or licensed landscape architect. The bill also defines "residential
property" as an existing single-family detached building located on an existing lot of record,
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 instead of a present danger before engaging in tree pruning,
trimming, or removal. The bill states that a tree poses an unacceptable risk if removal is the only
means of practically mitigating its risk below moderate, as defined by the ANSI A300 (Part 9)—
2017 tree risk assessment standards, using a 2-year timeframe.
The bill takes effect on July 1, 2021.
BILL: SB 916 Page 2
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 Mar. 3, 2021).
8
Section 166.021(4), F.S.
BILL: SB 916 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
Community Planning
State police powers are derived from the Tenth Amendment to the U.S. Constitution, which
affords states all rights and powers "not delegated to the United States."15 Under this provision,
states have police powers to establish and enforce laws protecting the public's welfare, safety,
and health.16 These police powers are granted to counties and municipalities by the state and
provide the authority to enact comprehensive zoning plans to layout zones or districts where
potential real property uses may be forbidden or restricted.17
Today, s. 163.3167, F.S. of the Community Planning Act18 statutorily requires incorporated
municipalities and counties to prepare and maintain a comprehensive plan to set out the
regulations and policies governing land within a community. Comprehensive plans address both
physical elements of land and buildings and the land uses permitted therein.
Local comprehensive plans are required to address many concepts, including strategies for the
orderly and balanced future land development of the area and procedures for monitoring and
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
U.S. CONST. amend. X.
16
“The States thus can and do perform many of the vital functions of modern government—punishing street crime, running
public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not
authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the
Federal Government, as the police power.” See NFIB v. Sebelius, 567 U.S. 519, 535-536 (2012).
17
Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536 (1974)
18
See ch. 163, part II, F.S.
BILL: SB 916 Page 4
evaluating the plan's implementation.19 Along with optional elements,20 plans must include the
following nine elements:
Capital improvements;21
Future land use plan;
Intergovernmental coordination;
Conservation;
Transportation;
Sanitary sewer, solid waste, drainage, potable water and aquifer recharge;
Recreation and open space;
Housing; and
Coastal management (for coastal local governments).22
All local government land development regulations must be consistent with the local
comprehensive plan.23
Local Tree Pruning, Trimming, and Removal Regulations Before 2019
Florida counties and municipalities have the home rule power to enact ordinances related to
vegetation management. These ordinances regulate how private property owners manage
vegetation on their private property. Vegetation management ordinances address various aspects
of land use, including the species used in a given area.
Before 2019, many local governments utilized vegetation management ordinances that required a
property owner to receive a permit or pay a fee before pruning, trimming, or removing a tree
from their private property. These ordinances also occasionally protected individual trees
because they are considered an important community resource.
For example, in Broward County, removing any historical tree24 without first obtaining approval
from the Board of County Commissioners was prohibited. Broward County also outlawed
removing any tree without first obtaining a tree removal license from the Environmental
Protection and Growth Management Department.25 Furthermore, municipalities within Broward
County enforced their tree preservation regulations in addition to Broward County's tree
regulations.26 However, the county administrator had the authority to suspend county tree
regulations during emergency conditions caused by hurricanes or other natural disasters.27
19
S. 163.3177(1), F.S.
20
S. 163.3177(1)(a), F.S.
21
S. 163.3177(3)(a), F.S. The capital improvements element must be reviewed by the local government on an annual basis.
22
S. 163.3177(6)(a)-(g), F.S.
23
S. 163.3194(1)(b), F.S.
24
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.
25
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.
26
Id. at s. 407. Municipalities may regulate exclusively within their jurisdictions upon certification by Broward County with
some exceptions.
27
Id. at 406.
BILL: SB 916 Page 5
Similarly, Orange County required a permit or authorization to remove a protected tree28 unless
an exception applied. The law did not restrict tree trimming or maintenance but encouraged
property owners to practice proper trimming habits that avoided the need for "severe" trimming
of any tree.29 Municipalities within Orange County were also allowed to provide tree regulations
within their jurisdictions.30
Section 163.045, F.S. – Tree Pruning, Trimming, or Removal on Residential Property
During the 2019 legislative session, the Legislature created s. 163.045, F.S., which preempts
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." This
section of the law also provides that a local government may not require a property owner to
replant a tree that was pruned, trimmed, or removed in accordance with this section.31
Notwithstanding, the provisions of s. 163.045, F.S., do not apply to the exercise of authority for
mangrove protection pursuant to ss. 403.9321-403.9333.32
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.33
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
28
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).
29
Ch. 15, Art. VIII, s. 278, Orange County Code of Ordinances (2018).
30
Id.
31
Section 163.045(2), F.S.
32
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 Mar. 10, 2021).
33
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: SB 916 Page 6
specifications. These standards are published in Part 9 of the ANSI A300 Standards.34 The
stated purpose of Part 9, Tree Risk Assessment, is to provide performance standards for the
practice of tree risk assessment and to guide the development of written specifications, best
practices, training materials, regulations, and other performance measures.35
Under Part 9 of the ANSI A300 Standards, the tree risk assessor shall inspect the tree, analyze
the tree, site, target, and information, and analyze the risk level posed by the tree. The level of
risk that is determined shall be reported to the client. A written tree risk assessment report should
include, but is not limited to:36
The objective of the assessment;
The date of inspection;
Identification of the assessor(s) and their qualifications;
Identification and location of the specified tree(s);
Part(s) of the tree assessed;
A description of the methodology used;
Time frame for the assessment;
Tree risk assessment data;
Risk rating for the tree or tree part(s);
Recommendations for Risk mitigation options and/or recommendations;
Recommendation for additional assessment(s), when a