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Aug. 30, 2019

Kaycee Lagarde

City Tree Case May Help Set Precedent for New State Statute

A heritage live oak tree the City of Pensacola is trying to prevent from being cut down has brought into focus the challenges of applying a new state statute that replaces local government processes for evaluating whether trees should be removed from residential properties to protect public safety. The tree, which is located at 605 N. Spring St., is at risk of being removed at the request of the property owners, despite multiple expert opinions finding it to be healthy.

Along with filing a declaratory judgment action in an effort to save the tree, the city has raised some questions to the court in hopes of getting clarification about how to interpret the new state statute.  
The City's Code provides for removal of dangerous trees and protection for certain trees that are healthy. The new state law delegates to professional arborists and landscape architects the duty to determine if a tree is unsafe, but it does not specify the documentation needed to make that determination. How that decision is made and whether it is objective are among the questions posed in the city's declaratory judgment action.
The heritage live oak at 605 N. Spring St. is protected under City Code, but the property owners have an expert who has prepared an opinion letter to support the tree’s destruction. It is the city’s position that no tree should be destroyed unless an objective determination has been made that failure of the tree is imminent, which is consistent with the objective tree risk assessment process used by the International Society of Arborists.  The ISA tree risk assessment process identifies how likely it is that a tree will fail, which part of the tree will likely fail, what will be impacted by that failure, and how severe the damage will be to the targets identified. 
As was stated by the property owners’ expert, an ISA arborist, “only God knows” when the heritage live oak at 605 N. Spring St. will fail. He said it could be 100 years before the tree falls. This expert did not provide a completed ISA risk assessment to support the conclusion that the tree should be destroyed. 
The city is seeking to understand the most sensible application of the new state law in hopes of preventing heritage trees from being removed unnecessarily in the future, because no notice is required before a tree is destroyed. 

Because the statute uses the term “danger” to define a tree’s level of risk, it is unclear how to determine which trees should be destroyed, since experts do not use the term “danger” to evaluate trees. If a tree is so damaged its failure is imminent, then it makes sense to forego a bureaucratic process and allow a tree to be removed without an application or permit.

In order to trust the conclusion that a tree's failure is so likely that it should be destroyed, the city has argued that an objective assessment pursuant to ISA standards should be completed prior to the tree's removal.
The City of Pensacola strives to have practices that respect individual property rights and  are not burdensome on property owners, but the city also places value in protecting healthy trees from being destroyed. The hope is that guidance with this new state statute will not only help Pensacola and its residents, but also other municipalities that are looking for assistance with interpreting this law.   

A temporary injunction is currently in place preventing the Spring Street tree's removal, and a judge is expected to determine soon whether the injunction to protect the tree will remain in force.

A heritage oak tree
Tree branches in the sunlight

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