From Wednesday's decision in Vickery v. City of Pensacola, by Judge Thomas Winokur, joined by Judge B.L. Thomas (over a dissent by Judge Scott Makar):
Larry and Ellen Vickery appeal from an order denying dissolution of a temporary injunction prohibiting them from removing a tree from their property. Because the injunction was improper, we reverse.
The Vickerys own a residential lot in the North Hill Preservation District of Pensacola, on which a live oak tree is situated in the rear corner. Hoping to build a house and wanting to avoid potential damage from the tree, the Vickerys applied to the Parks and Recreation Department for a permit to remove the tree. The permit was denied shortly before section 163.045(1), Florida Statutes, came into effect on July 1, 2019. This statute authorizes residential property owners to remove trees from their property without interference from local government if the owners obtain documentation, from an International Society of Arboriculture (ISA)-certified arborist or Florida-licensed landscape architect, indicating that the trees present a danger to persons or property.
The Vickerys' builder emailed the City of Pensacola (the City) to inform it that the Vickerys planned to remove the tree. The builder attached a letter from an ISA-certified arborist indicating that the main trunk of the tree had "severe decay" resulting from the prior removal of one of the tree's main stems, as well as other evidence of the tree "rotting on the inside." As a result, the letter contained the arborist's opinion that the "location of the tree puts homes and the occupants at risk of severe damage and safety" when the tree fails.
The City filed an action for declaratory judgment seeking a determination that section 163.045(1), Florida Statutes, did not prohibit the City from enforcing the local code provisions requiring the Vickerys to obtain a permit to remove the tree. It argued that the statute's use of the words "documentation" and "danger" is ambiguous, that the Vickerys' documentation was insufficient, and that the Legislature must have intended to require property owners to obtain an objective evaluation based on standards used by ISA-certified arborists. The City also requested a temporary injunction prohibiting the Vickerys from removing the tree.
