VERO BEACH TREE AND BEAUTIFICATION COMMISSION MEETING Thursday, December 19, 2019 – 9:00 a.m. Council Chambers, City Hall, Vero Beach, Florida
AGENDA
1. CALL TO ORDER
2. APPROVAL OF MINUTES
A) October 17, 2019
3. ELECTION OF OFFICERS
A) Chairman B) Vice-Chairman
4. PUBLIC COMMENT
5. NEW BUSINESS
A) Discuss Draft Annual Report
6. OLD BUSINESS
A) Dedicatory Tree Application Request from Ms. Anne Haas B) Review Dedicatory Tree List for Incorporation into a Revised City Resolution – Ms. Nanette Haynes, Grounds Maintenance Manager C) Update on the Pensacola v. Vickery Pensacola Tree Case – Mrs. Karen Emerson, Assistant City Attorney D) Beautification Weekend Plans - February 8th & 9th, 2020 - Publicity, Marketing, Who will Place the Yard Signs, and a City Beautification Project. E) Review and Discuss the Revised Publicity News Articles – Mrs. Katherine Booth
7. TREASURY REPORT
8. CHAIRMAN’S MATTERS
9. MEMBER’S MATTERS
10. NEXT MEETING DATE
A) Next Meeting Date – January 16, 2020 at 5:30 p.m.
11. ADJOURNMENT
This is a Public Meeting. Should any interested party seek to appeal any decision made by the Commission with respect to any matter considered at such meeting or hearing, they will need a record of the proceedings and that, for such purpose, they may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. Anyone who needs a special accommodation for this meeting may contact the Americans with Disabilities Act (ADA) Coordinator at 978-4920 at least 48 hours in advance of the meeting. VERO BEACH TREE AND BEAUTIFICATION COMMISSION MINUTES Thursday, October 17, 2019 - 9:00 a.m. Council Chambers, City Hall, Vero Beach, Florida
PRESENT: Chairman, Marilyn Black Dussault; Vice Chairman, Cynthia Schwarz; Members: Fran Robinson, Neal Roe, and Katherine Booth Also Present: Assistant City Attorney, Karen Emerson, Grounds Maintenance Manager, Nanette Haynes, and Senior Administrative Assistant, Rita Hawkins
1. CALL TO ORbER
Chairman Dussault called today's meeting to order at 9:07 a.m. and the Senior Administrative Assistant performed the roll call.
Mrs. Dussault announced that two (2) of the Commission members need to leave by 10:30. Since they started late, she would ask that they take items out of order to cover what is necessary and table any other items until their riext meeting.
The other Commission members were unanimously in favor of her request.
2. APPROVAL OF MINUTES
A) September 19, 2019
Ms. Schwarz made a motion to approve the minutes of the September 19, 2019 Tree and Beautification Commission meeting. Mrs. Robinson seconded the motion and it passed unanimously.
3. PUBLIC COMMENT
None
4. NEW BUSINESS
None
5. OLD BUSINESS
A) Dedicatory Tree Application Requested by Mrs. Judy Orcutt
Mrs. Dussault stated that they received a dedicatory tree application from Mrs. Judy Orcutt. This was brought before the Commission last month but the Public Works Director had not signed it, so it was tabled. She said they were also told that the wording for the plaque would not work, so that was being addressed. Now they have the application again for the Commission's approval. She asked if there were any questions about it.
Ms. Schwarz asked if they changed the wording on the dedication plaque. Ms. Nanette Haynes, Grounds Maintenance Manager, replied that she is still working with them on it.
Tree and Beautification 10/1 7/19 Page 11 Mr. Roe made a motion to approve the Dedicatory Tree application. Mrs. Robinson seconded the motion and it passed unanimously.
B) Review Dedicatory Tree List for Incorporation into a Revised City Resolution - Ms. Nanette Haynes
This item was discussed after item 5-E).
Ms. Haynes explained that she missed marking a few of the trees with asterisks indicating they are native trees.
Mrs. Booth made a motion to table the approval of this item until the next meeting, so that the information can be corrected.
Mrs. Dussault stated that there was no second, but she believes ifthey are going to vote on something it has to be correct. She stated they will table this item.
C) Heritage Center Set Up for the Centennial Finale Event - Mrs. Marilyn Dussault
This item was discussed after item 5-D).
Mrs. Dussault said they received the schedule for the setup of the tables at the Heritage Center. th Between 8:00 a.m. and 8:45 a.m. on October 26 , all adjustments need to be made to the tables and the Heritage Center will open at 9:00 a.m. to the public. The break down needs to be completed by 6:30 p.m. She stated that Mr. Roe will be busy that morning with the float and she will be attending another event at 5:00 p.m., so she will not be able to help with the break down. Ms. Schwarz announced that she will not be available at the end ofthe event either.
Mrs. Dussault said they really have not discussed what they are going to have on their table. The Commission members decided to place three (3) of the yard signs that Mrs. Dussault and Mrs. Robinson are purchasing on the float and one (1) on the table at the Heritage Center. Mrs. Dussault asked what else do they want on the table. She stated that it has to be related to the Centennial, so they could have a picture ofthe Centennial Tree, any articles about the dedication, as well as the trees at the schools. However, she believes they will need permission from the School Superintendent to take pictures and display them.
Mrs. Karen Emerson, Assistant City Attorney, said that she does not know of any legal reason to prevent them from taking pictures of the trees and displaying them. If the principal of the school gives them permission to be on the property to take a picture there should not be any problem displaying it.
Mrs. Dussault said that she wants to make sure that they do it right. She will check with Mrs. Bursick, City Clerk, to see ifthey have the photos ofthe trees when they were planted.
Ms. Schwarz asked if they will be displaying printed pictures, or putting them on a laptop as a scrolling presentation. Mrs. Dussault replied just physical pictures. Mr. Roe said that th table could be just a passive type of display. He would not expect all of the Commission members to be there all day long, but he will gladly come back and break down the table at the end ofthe event.
Mrs. Booth asked ifthe trees at the schools were part of the Centennial. Mrs. Dussault replied yes.
Tree and Beautification - 10/17/l 9 Page 12 Mrs. Booth asked if any of the educational publications would be appropriate. Mrs. Dussault stated that is not Centennial information.
Mrs. Robinson asked Mrs. Dussault if she was setting up the table on Saturday morning or Friday afternoon. Mrs. Dussault replied that if they can get it done on Friday afternoon, it might make it easier.
Mrs. Booth said that late afternoon is good for her. She can staff the table from 4:00 to 5:00 and then take it down, so that way no one else would have to come back. Mrs. Booth said she does not see why they would have to man the table until after the Parade.
D) Update on Centennial Parade Float and Signs - Mr. Neal Roe
This item was discussed after item 5-A).
Mr. Roe reported that he received a notice that CW Willis was unable to provide a driver, but they are still providing the trailer and plant materials for the float. Since then, he has resolved this issue and his boss volunteered to drive his own truck and pull the trailer.
Mrs. Dussault asked if they are using a trailer from one (1) business and a truck and driver from another business, will there be any liability from an insurance standpoint.
Mrs. Emerson said it is a City Parade and the public is involved, but she cannot speak on how the City is organizing their float participants and if they have to sign anything. The City approves the participants in the Parade, so she does not see any issues related to the Commission.
Mr. Roe explained that he has to provide a copy of the license of the driver and the insurance for the truck to the City.
Mrs. Dussault asked for an update on the signs for the float. Mr. Roe explained that in their agenda packets is a proof of the yard signs from Fast Signs (on file in the City Clerk's office). Since Mrs. Dussault and Mrs. Robinson each offered to pay for two (2) of them, he asked them to go by Fast Signs and take care ofthat transaction.
Mr. Roes asked if they had any questions about the Parade. Mrs. Dussault said that since this is their last meeting before the Parade, she asked Mr. Roe to give them a final recap ofthe events.
Mr. Roe explain that he and his boss will pick up the trailer and plant materials and be at the staging area by 8:30 a.m. The event will take about two (2) hours and they will return the trailer and plant materials to CW Willis. The children from Steam Fest will join the Parade float at 19th Street. CW Willis will have the plant materials on the trailer to look like a garden going down the street. They will have signs on the trailer about the Beautification Weekend, which he will collect and bring back.
Mrs. Dussault asked if the Commission members are required to walk with the float. Mr. Roe replied that he was not expecting them to, but they can join in ifthey want to.
E) Beautification Weekend Plan - February 8th - 9'\ 2020 - Publicity, Marketing, Who will Place the Yard Signs, and a City Grounds Maintenance Department Project
This item was discussed after item 5-C).
Tree and Beautification-10/17/19 Page 13 Mr. Roe said he submitted a Beautification Weekend plan proposal and the Commission members each received a copy of it (on file in the City Clerk's office). What he understands is that the Tree and Beautification Commission is trying to promote education, get people involved, and let people know more about the Tree and Beautification Commission. His thought was to work with the Master Gardeners, the Woman's Club, and landscape companies in terms of helping people understand how they can beautify their property. His idea is to partner with a Master Gardener or someone from the Woman's Club and do a tour on that Saturday of the landscaping at homes in the City and the trees they planted as part ofthe Cultural Arts Village. They could work with a Master Gardener to find out what other areas might be productive examples of good or bad plantings. His other idea would be a tour with Pam Cooper, or her designee for a historical tour in downtown but making it more about plantings, such as box plantings, or plantings they recommend showing. The thought was that people taking the tour would be educated by people who have the proper knowledge. It: would be about beautification, they will learn about the Tree and Beautification Commission, and they will find out about the other agencies like the Cultural Arts Village, etc. It would be a good way to move throughout the City and in downtown specifically. It will prepare and engage people for the Beautification Weekend. They would still put out the yard signs and advertise the weekend on the City website.
Mrs. Robison thanked Mr. Roe for contacting Ms. Nickie Munroe, Environmental Horticulture Agent for Indian River County. She said Ms. Munroe brought this subject up at their last Master Gardeners meeting and they are definitely on board with this idea of the tours.
Mr. Roe said he also heard back from Mrs. Pam Cooper for the historical tour and Mrs. Barbara Hoffman with the Cultural Arts Village. They are in favor of the concept of the tours, but it needs to be put together. It will take some time to plan on what the tour will cover, so it would be best for a person from the historical tour and the Master Gardener meet as soon as possible to identify what they each want to show. He said Ms. Munroe also recommended that they suggest people attend one (1) of the programs at the main Library in January, so that they are prepared to do a beautification project in February. He said Gardenfest is the first weekend in February, so it all comes together to make the Beautification Weekend a happening event.
Ms. Haynes said she thinks this is a fantastic idea. If they are going to direct people to attend the seminars at the Library then perhaps the tours could include some of the specific types of plants or gardens, which were discussed at the lectures. That ties the two· (2) events together and people will know what they are looking at.
Mrs. Robinson stated when the Cultural Arts Village did their walking tour of the homes they pointed out one (1) with quite a few native and pollinator type plants. Ms. Haynes suggested they could point out Florida friendly plants, natives, plants with correct spacing, etc. Mrs. Booth asked if City Hall would be part of that tour, because of the new rain gardens. Mrs. Dussault suggested that maybe there could be a map available to people showing the different locations of where the City has done beautification projects and what to look for.
Mrs. Dussault said she also sees this as an opportunity for Dr. Richard Baker, Audubon Society. Ifhe will be doing his seminars in January then he can start handing out trees that people can plant for the Beautification Weekend.
Mrs. Robinson announced that the Pelican Island Audubon Society is holding their third annual Transforming Landscapes for a Sustainable Future Conference at the Emerson Center on January 25, 2020 and all oftheir topics will be addressed.
Tree and Beautification - 10/17 /19 Page 14 Mr. Roe asked if they could have a table or tent at Gardenfest. Mrs. Robinson replied that she is not sure. This is the Garden Club's main fundraiser and they do not let anyone participate for free, but she will speak with the group. She will ask if they could have some type of presence there, or at least their signs for Beautification Weekend.
Mrs. Dussault said everything that Mr. Roe has done is great, so she would like him to put it into a form of a proposal in case they have to present it to the City Council. She asked Mrs. Emerson if they are going to expand the Beautification Weekend by working with the Master Gardeners, Women's Club, and the Cultural Arts Village would they need to get it approved by the City Council. Mrs. Emerson said it is fine as long as individual members of the Tree and Beautification Commission are making contact with the other groups and entities on behalf of the Commission and report back to the Tree and Beautification Commission. Mr. Roe explained that they want to hold and promote two (2) tours by asking these other groups to implement and conduct the Tree and Beautification Commission's tour idea.
Mrs. Emerson suggested that they articulate their proposed additional events for the Beautification Weekend and present it to the City Council. That would be the safe thing to do.
Mrs. Dussault stated that the outline is excellent, but by their next meeting they will need to have the specifics and the assignments of the individuals, so they can create a proposal to submit to the City Council. Then by December, they will have an answer.
Mrs. Booth said she is not understanding the difference between what they are proposing verses Ms. Schwarz having her Library programs with speakers, or her publishing an article on behalf of the Tree and Beautification Commission. If all they need to do is go to the City Council to have them approved then that is what they should be doing.
Mrs. Dussault said she does not agree, because they are starting with a base (the Beautification Weekend) that they established several years ago and now they are expanding this program. She said they can get back to Mrs. Booth's issue about publications, but the Tree and Beautification Commission is not holding themselves out as experts. When you write an article and tell people what they should be doing, you are holding yourself out as an expert. Mr. Roe went to the Master Gardeners looking for people with knowledge and by doing this the Commission is not sponsoring or marketing any other event or program, like Dr. Baker's program.
Mrs. Booth asked Mrs. Dussault if she said the Beautification Weekend is going to be conducted by organizations that are experts. Mrsi Dussault replied no. The Beautification Weekend is the Tree and Beautification Commission's event. She said the Commission does not have the expertise and credentials to teach, but they can turn to people with the credentials to work with them.
Ms. Schwarz said that is what she was doing with the Library programs. Mrs. Dussault said the problem with Dr. Baker speaking is that he was going speak on his program of 100,000 trees and that would show we were sponsoring his program. That is the difference.
Mrs. Robinson explained that the Master Gardeners purpose is to educate the community without promoting a specific program.
The Commission continued to discuss the Library programs and how they are different from the tours they are proposing to expand the Beautification Weekend.
Tree and Beautification - l 0/17/19 Page I5 Mrs. Emerson asked to interrupt, because they have gone way off base with their discussions. She said what they were discussing before they got side tracked was about asking individual Commission members to partner and explore other unspecified events not related to the already approved Beautification Weekend. She said they do not have any details, because the individual members have not met with anyone to define the events. At their next meeting, if the board is in consensus they could submit a request to ask the City Council to have these events added to their already approved Beautification Weekend.
Mrs. Booth stated that the Beautification Weekend is not part ofthe four ( 4) standards for the City to be designated a Tree City USA community. If they are looking at what their standards are and what their Charter is, it does not include a Beautification Weekend.
Mrs. Dussault ask Mrs. Booth if she is suggesting that the Arbor Day Foundation dictates what the City decides what its Commissions do, or what the City is allowed to do to create its Commissions. Mrs. Booth replied in this case yes.
Mrs. Emerson explained to Mrs. Booth that this Advisory Commission is strictly a creature of the City. It was created by the City and it only answers to the powers given by a Resolution of the City. There is an Ordinance that creates the Advisory Boards and the rules for the Advisory Board's conduct. Every aspect of this Advisory Board is covered by the City and no other, so it is whatever the City of Vero Beach wants it to be.
Mrs. Booth said but in their Charter is states Recommending actions necessary and desirable to maintain the City in good standing ofthe Tree City USA program.
Mrs. Dussault said they are moving on. She asked Mr. Roe if he was clear that he should come up with more of a plan for the tours for their next meeting. Mr. Roe replied yes.
Mrs. Robinson asked if she should ask the Master Gardeners about having their Beautification Weekend signs on display at Gardenfest. Mrs. Dussault said that is fine. She wants to have something concrete to bring to the City Council.
Mr. Roe made a motion to prepare a proposal to present to the City Council for the Beautification \Veekend on February 8, 2020 and to potentially participate with Gardenfest on February 1, 2020. The motion passed 3-2 with Mrs. Booth voting no, Mr. Roe yes, Mrs. Robinson yes, Ms. Schwarz no, and Mrs. Dussault yes.
Mrs. Robinson excused herself from the meeting at 10:15 a.m.
F) Review and Discuss the Revised Publicity News Article-Mrs. Katherine Booth
Mrs. Booth made a motion to table this item pending the discussion of item 8-A).
Mrs. Dussault said at last month's meeting they discussed Mrs. Booth's article and she was asked to provide footnotes. She stated that this item will be tabled until next month.
6. TREASURY REPORT
Tree and Beautification - 10/17/l 9 Page 16 Mrs. Dussault reported that the Tree Planting Application Fund had a balance of $869.21 and the Tree Replacement/Mitigation Fund has a balance of $74,744.86. She pointed out that the Tree Replacement/Mitigation expenditures to date are $13,908.07, which include the purchase of the Cultural Arts Village trees and several tree replacements done by the Grounds Maintenance Department.
7. CHAIRMAN'S MATTERS
None
8. MEMBER'S MATTERS
A) Tree and Beautification Commission Obligations - Mrs. Katherine Booth
Mrs. Booth explained that at their last meeting she was instructed to bring forward a motion, which is included in the agenda packet (attached to the original minutes). Mrs. Dussault asked Mrs. Booth if this is her motion.
Mrs. Booth said she moves that the Tree and Beautification Commission fulfill the three (3) obligations required under its Charter.
Mrs. Dussault replied that this is a huge piece of writing and they need to analyze it completely.
Mrs. Emerson stated that she keeps hearing Mrs. Booth refer to a Charter. She asked Mrs. Booth what is the Charter other than the City Resolution and the City Code. Mrs. Booth replied that she took it directly from the City's website. Mrs. Emerson said she tried to make it clear that anything to do with this Advisory Board and its creation go to the Code and then the Resolution. The last Resolution they have is from 2015 and anything else can be found under Advisory Boards of the City Code. Mrs. Booth asked Mrs. Emerson if she wants her to actually site the City Code. Mrs. Emerson stated that is how this Board was created and there is no other document.
Mrs. Emerson asked Mrs. Booth if the City website refers to a Charter. Mrs. Booth replied that on the City's website under Advisory Commissions there is a page for the Tree and Beautification Commission and that is what she calls a Charter. She said she would like to amend her motion.
Mrs. Booth said she moves that the Tree and Beautification Commission fulfill the three (3) obligations required by Code.
Mrs. Emerson said she could read the Code, which is found under municode Chapter 2, Section I02 Advisory Commissions. The subsection for the Tree and Beautification Commission section reads; The Tree and Beautification Commission shall advise the City Council on all matters concerning trees and the beautification needs of the City, including preservation of the natural beauty of the City and recommending actions necessary and desirable to maintain the City as a member in good standing of "Tree City, US.A. ". The Commission shall also hear and decide applications for dedication trees to be planted in the City pursuant to resolution of the City Council. To the extent practicable, the Commission shall be composed ofat least one (1) member ofthe Nurserymen's Association and one (1) member of a local garden circle. She continued by stating that the City Resolution is amended from time to time giving specific direction. The Resolution pertains to trees and tree plantings and it will be
Tree and Beautification - 10/17119 Page I 7 updated when they submit the revised dedicatory tree list. There is nothing else they can call a Charter document.
Mrs. Booth said she moves that the Tree and Beautification Commission fulfill the three (3) obligations required under the City Code Chapter 2, Section 102, subsection Tree and Beautification Commission.
Mrs. Dussault asked what is this motion based on. Ms. Schwarz said they need more discussion.
Mrs. Booth replied that it is based on the background in the document she submitted with her motion. At last month's meeting she was instructed to bring back a motion, because as a Commission they continue to have concerns and considerations about what the Commission can and cannot do.
Mrs. Dussault said in her opinion the Tree and Beautification Commission members overall have not expressed frustration as Mrs. Booth stated in the first paragraph of her document. She said she is fully aware of what they can and cannot do and ifthey get to a point where they want to do more they follow the requirements of the City. It seems based on the document that Mrs. Booth is suggesting the rules, regulations, and suggestion of the Arbor Day Foundation take precedence over the City Code, but it does not.
Mrs. Booth said it seems to her that the Tree and Beautification Commission is set up so the City can be designated a Tree City USA community. Ifthey look at what they. are permitted to do and not do based on the City Code Chapter 2, section 102 that follows the three (3) missions posted on the City website. Item number three (3) of her document is about her own personal opinion and assessment based on a questionnaire she conducted on the Arbor Day Foundation's website. Mrs. Booth continued by reading item four ( 4) from her agenda item.
Mr. Roe excused himself from the meeting at 10:34 a.m.
Mrs. Dussault read a sentence form Mrs. Booth's item number four (4). "The advice is not stated as limited to public property but pertains to the City at large". She said she cannot possibly see any right that the Tree and Beautification would have to advise the City Council of matters in respect to private property.
Mrs. Emerson said there are so many things in the article that are basically wrong, even though the intent was good. The statement "Public Works currently has ultimate authority over the Commission" is not true. Things like requesting details of the treasury report is not advisory. She said to be honest, there is nothing in the directions given to this Commission other than vegetation and trees. She noticed at last month's meeting there was an interest in benches. If the Commission as a whole felt that beautification in the parks could include dedicatory benches they could ask the City Council if they would consider including it in an amended Resolution, just like when they were setting up the Beautification Weekend. There are so many things in this document that are essentially just misunderstandings of what the Tree and Beautification Commissions capacity is. The Commission advises the City Council on items relevant to trees and beautification. She said this document goes pretty far field and she would not characterize the bulk of it as a motion, so she does not know how the Commission wants to handle it.
Mrs. Booth said Mrs. Emerson is talking about the functions of the Tree and Beautification Commission and under item number six (6) of her document, she states that the roll of the Commission could be expanded by the City Council.
Tree and Beautification 10/1 7/19 Page I 8 Mrs. Dussault stated that the issue is not only is this Commission an advisor to the City Council they do not have any right to interfere with any City departments or staff. Mrs. Booth said she understands that and that is why she stated that Public Works makes the final decision and this Commission advises the Public Works Department of projects. Mrs. Dussault replied no Mrs. Booth. The City of Vero Beach City Council always makes the final decisions, because they are the elected officials. Mrs. Booth replied well fine. She said that Ms. Haynes is from Public Works and she either implements or rejects plans that the Commission would like to do. How this goes to the City Council she does not know.
Mrs. Dussault stated that the treasury report shows what projects the Tree Mitigation Reserve funds were used for. Mrs. Booth said only one (1) project was Commission driven and the others were not.
Mrs. Dussault explained that it is not up to the Tree and Beautification Commission to determine how money is spent. The only amount that they can semi determine is the amount that is in the Tree Planting Application Account, and even then they have to take it before the City Council and request to use the funds. Mrs. Booth said that is proving her point that the City Code is restrictive and it sounds like the Commission would like to ask the City Council to expand the City Code into other areas. Mrs. Dussault asked Mrs. Booth do you have any idea what it would take to revise the City Code Section 72.43. Mrs. Booth said she knows that it might affect other parts of the Code, but educating the public and to be able to sponsor and partner with other organizations are things they could ask the City Council ifthey would be allowed to do .
. Ms. Haynes said she would like to know if the Commission was solely formed so that the City could be a Tree City USA member, or did the Tree Commissions existence allow them to become a Tree City USA member. Mrs. Dussault stated that she does not know the answer, but she will check on that.
Ms. Haynes explained that the City is only eligible to be a Tree City USA member based on what they do for trees on City property. She said they lost a part of it when they sold the electric, because tree pruning around the electrical lines was included in that.
Mrs. Dussault said in her opinion, the Arbor Day Foundation gives them accreditation for being a member of Tree City USA for 37 years.
Mrs. Booth stated that the Arbor Day Foundation has recommendations to be a Tree City member, but they are not required to be done by the City. Mrs. Dussault said they are exactly that, a recommendation. She stated that the Commission meets the criteria to be a Tree City USA member and they have been doing it every year for 37 years. In reading Mrs. Booth's document is sounds as if she believes that the Arbor Day Foundation takes precedence, but it does not.
Mrs. Booth asked since they are to advise the City Council on all matters concerning trees and beautification needs ofthe City does that only pertain to City property. Mrs. Dussault replied yes. She said they do not have any right to advise the City Council about private property.
The Commission members continued discussing information from Mrs. Booth's agenda item.
Mrs. Booth asked what does the Commission do for preservation ofthe natural beauty ofthe City.
Mrs. Emerson asked Mrs. Booth in looking at Chapter 2, Section 102 what part of this does she feel the Commission has failed to do since 1981.
Tree and Beautification - 10/17/19 Page [ 9 Mrs. Booth stated they could advise the City Council about Code changes that they think are needed to preserver the natural beauty of the City. Mrs. Dussault said they can advise them of anything, but they would have to come up with a proposal that the Commission would vote on and take to the City Council. It cannot be a proposal that is incorrect with the law. ·
Mrs. Booth asked if the Commission wishes to expand into education and partnering. Mrs. Dussault said that would be up to all of the Commission members to determine. She said if Mrs. Booth wants to propose a motion to expand whatever it is she wants is fine, but it is foolish to use as citations that the Arbor Day Foundation has better rights than the City. She must also understand the procedures of making a very clear motion. They are perfectly happy to go through the procedure, but if she presents something that is not approved by the Tree and Beautification Commission it will not go to the City Council.
Mrs. Booth stated that her agenda item was a draft document for discussion. The feedback she received from the Commission helps her know what to move forward with. She asked to clarify that she does not believe that the Arbor Day Foundation takes precedence over the City Ordinance.
B) Arbor Day Tree City USA Requirements & Growth Award - Ms. Cynthia Schwarz
Ms. Schwarz said that since they have had several discussions about education, she went to the Arbor Day Foundation website. Several years ago, she tried to formulate some additional programs for the Tree and Beautification Commission to get growth awards, which is part of the Arbor Day Foundation. She said she read on the Arbor Day Foundation's website the guidelines for achieving a growth award and they have done some of these things. She read item B-1) from her agenda item (attached to the original minutes). She said this sounds like the Trees For Life program with Dr. Baker, but it says they are to partner with groups and they cannot do that. Mrs. Dussault said the key word is "City" and this Board is an Advisory Commission to the City. If Dr. Baker wanted to go to the City Council and ask them if they would like to sponsor his 100,000 Trees For Life and they chose to vote yes then the City can do it, but the Tree and Beautification Commission cannot.
Ms. Haynes explained that she submits the paperwork for the Tree City USA designation. Ifthey were to go for a growth award, it would have to come from the City staff and not this Commission. It would be nice to get a growth award, but she has not had time to look into it. It would have to be like a project she did where the Garden Club and Lowe's partnered with her, but it was not a tree project. That does not mean the Tree and Beautification Com.tuission cannot come up with ideas. They did the Centennial Tree and they partnered with someone who donated the tree. She does not know if that would qualify and they might require it to be a much larger project. For her department it has always been a function of what they can handle. They want things to look good for the City and if they plant things that they cannot maintain it does not look good.
Ms. Schwarz stated that when she originally proposed working on a growth award a few years ago, it was never explained to her that it had to be done by the City and not the Commission. Now that she is clear with this she can move forward.
Mrs. Dussault said there is no problem with trying to do other things with the recommendations of the Arbor Day Foundation. However, the Arbor Day Foundation does not take precedence and anything they have done or will do in the future will need to be approved by the Tree and Beautification Commission. If necessary, it will also be approved by the City Council. She said her recollection of the intention of Ms. Schwarz doing the Library lectures was to provide publication and advertising for the Tree and Beautification Commission and to bring in a specialist to give a seminar.
Tree and Beautification - 10/1 7/19 Page I 10 Ms. Schwarz explained that her purpose of the Library programs was to go for a growth award, but now she knows it has be done by the City. Mrs. Dussault said if they see something that they think would be good for the City to do to advance them towards a growth award, they can put it in a form of a motion, discuss it, vote on it, and present it to the City Council.
Mrs. Emerson said the City of Vero Beach is the legal entity that has the designation and they already have Tree City USA award, but the growth award would go beyond that status. The Commission could send a motion to the City Council asking if they could apply for other programs to get this award.
Mrs. Booth asked if Ms. Schwarz can create a motion to approach the City Council about their approval for the Tree and Beautification Commission to meet the eligibility guidelines for a growth award.
Mrs. Dussault said that is not accurate. Ms. Schwarz can put together a program under the recommendation of the Arbor Day Foundation and take it to the City Council for them to approve. As Mrs. Emerson stated the relationship is between the City and the Arbor Day Foundation, not with the Tree and Beautification Commission.
Ms. Haynes explained that the growth award is above and beyond being a Tree City USA member. The growth award shows an increased commitment of resources. As she looks through the information from Ms. Schwarz, she does not know if the library sessions would qualify as tree care workshops. She does not know if they have to earn these points in a certain amount of time, such as a year, ten years, etc. When they get into the partnerships that is more in depth with the City. They can receive more points for the planning and management category, but projects like tree inventories are done by professionals and they are very time consuming and costly. Mrs. Booth asked if the City's GIS mapping of the trees would qualify. Ms. Haynes explained that a tree inventory involves having a person, normally an Arborist, do an assessment on the health and condition of each tree while standing in front of it. The assessment could include looking for any damage, possible disease, an age estimate, if it receives fertilization, etc., so it is an entire comprehensive report.
Mrs. Dussault said the bottom line is that any of these programs cost money and the City Council would have to approve them.
9. NEXT MEETING DATE
A) Next Meeting Date- November 21, 2019
The next meeting of the Tree and Beautification Commission is scheduled for November 21, 2019.
10. ADJOURNMENT
Ms. Schwarz made a motion to adjourn today's meeting at 11:22 a.m. Mrs. Booth seconded the motion and it passed unanimously.
/rh
Tree and Beautification - 10/17119 Page 111 APPUCATION TO TREE & BEAUTIFICATION COMMISSION FOR TREE DEDICATION
On 10/17/00, the City Council adopted Ordinance 2000-25 requiring the City's Tree and Beautification Commission to review all applications to plant dedication trees. This application shall be filed with the Department of Public Works for review and submittal to the Tree and Beautification Commission for approval.
Representing Name e 45 Organization.______
Address 2 ? 1 fl On tt C...O P( 11-CJL City Vu(}' be~ State f L Zip Code $ 2 (j b 6 Area Cooe.£.d.Phone # 3 92 - 3 0 S- Preferred Dedication Date b-e...ci 2 of o/ P-rred Location cl Donated Tree yo U_ aa flArr I<; (z_ I ",! sl-re.d·JVw &..efli I FL Type of Donated Tree (See Minimum Standards Copy Attached) ______
Ari you requesting the dedication include a plag~e? If so, show the wording you are requesting: t:S - ;r::N l-o V'"in. IYI e rn or of ~o{;,e,,f-- 5. l+A-A-s J3c>(3 - DA-o - PAPf\ Comments:------E~~~0/7 Cost of Tree: _____ (By DPW)
Cost of Plaque: _____ (By DPW)
Total Cost:
Tree Planting Fee: $100 cK ft1001
Recommended for Approva& D Yes D No
Dedication No. 2000--~~-
By Public Works Director
By City of Vero Beach Tree and Beautification Commission ·------Authorized Signature - Dedicatory Tree Specifications Trees shall be of the following species and minimum specifications:
Scientific Common Height Drought Wildlife Flower Minimum Name Name and and Salt Benefit Color/Evergreen or Size At Longevity Tolerance Deciduous? Planting
Quercus virginiana* Live Oak 40'-80' High; High Food for N/A; 15' tall, 4" birds,small caliper 150+ mammals, Semi-Deciduous years shelter
Magnolia grandiflora* Southern 30'-50' Moderate; Nectar for White/Evergreen 14' tall, 4" Magnolia Low insects caliper 50-80 years
Peltophorum dubium Copper Pod 50'-80' High; Butterfly Yellow/Deciduous 15' tall, 4" Moderate nectar caliper 30-50 years
Tipuana tipu Indian 30'-40' Moderate; Nectar for Yellow/Evergreen 14' tall, 3,, Rosewood Low insects caliper 30-50 years
Callistemon viminalis Bottlebrush 20'-25' Moderate; Nectar for Red/Evergreen 12' tall, 3,.. Moderate birds caliper 70-100 years
Callistemon rigidus Erect 20'-25' Moderate; Nectar for Red/Evergreen 12' tall, 3" Bottle brush Moderate birds caliper 70-100 years Dedicatory Tree Specifications Trees shall be ofthe following species and minimum specifications:
Sideroxylon foetidissimum* Mastic Tree 50'-80' High; High Bee nectar; Yellow/Evergreen 12' tall, 3" 30-50 food for caliper years birds
Coccoloba uvifera* Seagrape 30'-40' High; High Food for N/A/Evergreen 12' tall, 3" 30-50 birds; bee caliper years nectar
Ulm us Americana* Florida Elm 40'-50' High; Shelter for N/A; Deciduous 14' tall, 3" 30-40 Moderate birds caliper years Juniperus silicicola* Southern Red 30'-45' High; Food for N/A; Evergreen 12' tall, 3" Cedar Moderate birds caliper 30-50 years
Taxodium distichum* Bald Cypress 30'-100' Low; Low Food for N/A; Deciduous 15' tall, 4" 50 years wildlife, caliper shelter
Bauhinia blakeana Hong Kong 20'-40' High; Nectar for Purple/Evergreen 14" tall, 3" Orchid 25 years Moderate bees and caliper insects
Quercus austrina* Bluff Oak 40'-60' High; Wildlife food N/A; Deciduous 14' tall, 3" 50-100 Moderate caliper years
Magnolia virginiana* Sweet Bay 40'-60' Low; Low Wildlife White/Evergreen 12' tall, 3" 50 years food, Nectar caliper for bees Dedicatory Tree Specifications Trees shall be of the following species and minimum specifications:
Pinus palustris* Longleaf Pine 60'-120' High; High Wildlife food N/A; Evergreen 12' tall, 311 75 years caliper
llex cassine* Dahoon Holly 20'-40' Moderate; Wildlife food N/A; Evergreen 12' tall, 3" 20 years Moderate caliper
Tabebuia pallida Pink Trumpet 30'-40' High; Insect nectar Pink; Evergreen 14'tall, 3" 20 years Moderate caliper
Conocarpus erectus* Green 30'-45' High; High Insect nectar N/A; Evergreen 12' tall, 3,,, Buttonwood 35 years caliper
Prunus caroliniana* Carolina 30'-40' High; High Food for White; Evergreen 12' tall, 3"' Cherrylaurel 30 years birds caliper
G * Denotes Florida Native
G The Tree and Beautification Commission and Public Works reserves the right to change the requested planting location and/or tree species based on habitat requirements e The listed tree heights and longevity are approximate e Florida No. 1 trees are preferred Filing# 98116434 E-Filed 10/30/2019 02:20:21 PM
IN THE CIRCUIT COURT, 1st JUDICIAL CIRCUIT, ESCAMBIA COUNTY
CITY OF PENSACOLA, Plaintiff~
V. Case No.: 2019-CA-001175
LARRY VICKERY, AND ELLEN VICKERY, Defendants. ------I ORDER DENY.ING MOTION TO DISSOLVE TEMPORARY INJUNCTION
THIS CAUSE came before the Court, first on August 5, 2019, and again on
August 27, 2019, regarding the Motion to Dissolve Temporary Injunction filed by the
Defendants Larry and Ellen Vickery ("the Defendants"), and the Court having considered
the testimony of witnesses, considered exhibits, and considered the memorandums and
legal arguments put forth by party counsel, hereby ORDERS and ADJUDGES that the
Motion to Dissolve Temporary Injunction is DENIED, for the reasons set forth below.
Backgrountlllntroduction
The gravamen of this action is the interpretation and application of section 163.045
( 1), Florida Statutes" 1 in response to the City of Pensacola ("the City") denying the
Defendants' request to remove a 200-plus-year-old live-oak tree ("the Old Tree") located
in the North Hill Preservation District, part ofPensacola governed by specific ordinances
1 "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be Ii.quidated and ascertained hy a series of particular discussions and adjudications." James Madison, Federalist No. 37, in The Federalist, ed. George W. Carey and James McClellan (Indianapolis, IN; Liberty Fund, 2001) 183.
Iof15 tailored to protect "Heritage Trees."2 Section 163.045 (1), Florida Statutes, which went into effect on July 1, 2019, states that:
(1) A local government 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 own.er obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida Hcensed landscape architect that the tree presents a danger to persons or property.
Before the effective date of section 163.045, Florida Statutes, the City denied a tree removal permit sought by the Defendants. After the denial, but before the effective date ofsection 163.045, Florida Statutes, the Defendants then submitted a house design plan to the City, which also called for removing the Old Tree. The City denied the design plans per section 12-6-6(B)(2)(c), The Code of the City ~f Pensacola, Florida ("Pensacola
Code''), which prescribes that an "architect, civil engineer, or planner . . . make every reasonable effort" to locate improvements "so as to preserve any existing tree."
After section 163.045, Florida Statutes went into effect, the Defendants hired
Arborist Wayne Williams to draft a letter stating that the Old Tree was a danger to people and property. The City immediately challenged the veracity of the letter. On July 22,
2019, the City filed a Complaint for Declaratory and Injunctive Relief. Concurrently, the
City obtained an ex-parte temporary injunction to restrain the Defendants from removing the Old Tree. On July 24, 2019, the Defendants moved to set aside the temporary
2 The parties are in apparent agreement that the Old Tree falls under the definition of "Heritage Tree", as that tennis defined in The Code ofthe City ofPensacola, Florida. "Heritage Tree" is not a term used in any state statute.
2of15 injunction, based on the opinion ofArborist Wayne Williams, arguing that the letter ofMr.
Williams satisfies section 163.045, Florida Statutes (2019).
On August 5, 2019, the evidentiary portion of the Defendants' Motion to Dissolve commenced, with these witnesses being called:
A. Wayne Williams, the arbo1ist hired by the Defendants. Mr. Williams confirmed he initially rendered an opinion that the Old Tree was not dangerous, and that he only changed his opinion when requested to do so the Defendants. Mr. Williams was also candid that he did not utilize industry standards for determining whether the Old Tree is dangerous. While Mr. Williams presented himself as a tree expert who is ISA certified, his opinion in the instant matter lacks credibility due to Mr. Williams' failure to utilize industry standards, and his tacit admission to changing his original opinion to suit the whims of the Defendants.
B. Jerry Jarrett, a certified arborist, called by the City. Ms. Jarrett, unlike
Mr. Williams, assessed the Old Tree using ISA standards and rendered an opinion that the
Old Tree is bealthy and vibrant, and is not a present danger to people or property.
C. Shawn Brown, arborist called by the City. Mr. Brown was not ISA certified when he assessed the Old Tree; therefore, the Court puts 110 weight on Mr.
Brown's testimony due to his lack of certification when he analyzed the Old Tree. 3
D. Michael Wolf, Landscape Architect, called by the City. Mr. Wolf
3 This is not a blanket prohibition on tl1is witness testifying in the future, if the witness is able to show that he inspected the Old Tree at a time when the witness was/is ISA certified.
3ofl5 testified that the field of Landscape Architecture does not have any written standards for assessing dangerous trees. Instead, Mr. Wolf indicated he often relies upon ISA certified arborists to evaluate the condition of specific trees. Based upon his prior experience reviewing/analyzing the reports and opinions of ISA certified arborists regarding the condition of trees, Mr. Wolf then testified that he considered the assessment conducted by
Jerry Jarrett, and that he agrees with her assessment.
E. William Kimball, a City empfoyee who presides over the City's parks and recreation department. Mr. Kimball's testimony regarding his interactions with the
Defendants established that there are likely no grounds to create any form of an estoppel for the Defendants.
F. Jonathan Bilby, a City building official who reviewed the house plans submitted by the Defendants. Mr. Bilby's testhnony regarding his interactions with the
Defendants established that there are likely no grounds to create any form of an estoppel for the Defendants.
Besides the live testimony presented at th~ August 5th hearing, these exhibits were admitted into evidence:
1. ISA Risk Assessment Form, with instructions. 2. Pictures of Old Tree. 3. Letter from Wayne Williams 4. Affidavit of Wayne Williams. 5. Visual Inspection Report prepared by Michael Wolf. 6. Letter from Shawn Brown to Bill Kimball. 7. June 21, 2019 letter from Jonathan Bilby to the Defendants. 8. Emails between Jonathan Bilby and the Defendants.
The hearing concluded on August 27, 2019, with closing arguments.
4ofl'i Objections by Defendants
Defense counsel repeatedly asserted several objections throughout the multi-day hearing, and the Court deems it appropriate to consider the objections first.
A. Objection 1-The Court improperly conducted an evidentiary hearing.
The repeated objections by the Defendants to the Court exceeding its authority by both conducting an evidentia:ry hearing, and hearing testimony from witnesses called by the City, are overruled/denied.
A party who obtains a preliminary injunction without a hearing, must go forward with evidence when confronted with a motion to dissolve the injunction, and must establish a prima facie case to support the injunctive relief. Dep 1t ofCmty. A/fairs v. Holmes County,
668 So. 2d 1096, 1101 (Fla. 1st DCA 1996). Per rule 1.610, Florida Rules of Civil
Procedure, this Court must conduct a full evidentiary hearing once a motion to dissolve an ex-parte temporary injunction is filed. After the Defendants moved to dissolve the ex-parte preliminary injunction, this Court was bound to consider evidence from the City on whether the City can prove its prima facie case for entitlement to injunctive relief.
B. Objection 2: The City lacks standing to seek Declaratory ReUef.
The repeated objections by the Defendants to the City's ability to seek declaratory relief are overruled/denied.
A party seeldng declaratory relief must show doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that the party is entitled to have such doubt removed. Wilson v. County ofOrange, 881 So. 2d 625, 631
(Fla. 5th DCA 2004). Here, the City has a bona fide, actual, present practical need for the
5ofl5 declaration, because the City has enacted an extensive regulatory scheme for preserving certain types of trees in certain parts of the City. The City's interest is actual, present, adverse and antagonistic because the Defendants are seeking to nullify a portion of the
City's tree regulations by asserting a newly enacted subject statute preempts the application of the City's regulations. Moreover, the matter is ripe, as the City has denied the
Defendants' request to remove the Old Tree.
Therefore, the Citfs request for a declaration is not a mere request for legal advice, because the request involves analyzing a newly enacted statute to determine whether the
City can prevent the Defendants from cutting down a tree situated on their property.
Clearly, the parties are in doubt as to the interplay between the City's regulations, the newly enacted statute, and the ultimate impact on the Defendants' property. Accordingly, the
City has standing under Chapter 86, Florida Statutes, to pursue declaratory relief.
Statutory Interpretation Analysis
The polestar of statutory interpretation jg legislative intent, which is to be determined by first looking at the actual language used in a statute. Searcy, Denney,
Scarola, Barnhart & Sh(nley, etc, v, State, 209 So. 3d 1181, 1189 (Fla. 2017). The statute at issue, section 163.045 ( l), Florida Statutes, states that:
"(l) A local government 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 Intemational Society of Arboricultu.re or a Florida licensed landscape architect that the tree presents a danger to persons or property."
6ofl5 If the statutory language is ambiguous, a court should look to the rules of statutory construction to help interpret legislative intent. Hardee Cty. v. FINR .ll, Inc., 221 So. 3d
1162, 1165 (Fla. 2017). However, as Judge Learned Hand cautioned long ago, "[i]t is one ofthe surest indexes ofa mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish," Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945), qffd, 326 U.S. 404
(1945).
The verbiage at issue does not require the Court to delve into an extensive corpus- linguistics analysis, because the Legislature left express clues in the statutory language to narrow the scope of"danger" and "documentation." Indeed, "[w]hen several nouns ... are associated in a context suggesting that the words have sometbing in common, they should be assigned a permissible reading that makes them similar." Antonin Scalia & Bryan A.
Garner, Reading Law: The lnte;pretation ofLegal Texts, 195 (2012). To this end, the doctrine of noscitur a sociis (a word is known by the company it keeps) is the right interpretative tool "to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words." Cosio v. State, 227 So. 3d 209, 213 (Fla. 2d DCA 2017)
(quoting Gustafson v. Alloyd Co., 513 U.S. 561 (1995)).
Here, the verbiage utilized in the statute shows a clear intention by the Legislature to remove local administrative ba.ITiers prohibiting property owners from removing trees that endanger other persons or property- with a qualifier that the property owner must first obtain "[d]ocumentation from an arborist certified by the International Society of
Arboriculture or a Florida licensed landscape architect that the tree presents a danger to
7ofl5 persons or property". In a vacuum, the words "danger'~4 and "documentation"5are arguably vague and ambiguous because they are susceptible to innumerable interpretations. After utilizing the doctrine of noscitur a sociis, it becomes clear that the Legislature qualified both terms by requiring the documentation of the danger to come from either a licensed landscape architect or an ISA certified arborist.
The Legislature must be presumed. to know the meaning of certified as an arborist or licensed as a landscape architect. By selecting only those two professions, the
Legislature has implicitly adopted the professional standards applicable to the two respective industries. By extension, any documentation rendered on whether a tree is dangerous must confonn to the respective industry standards.
4 All trees are potentially dangerous, and can: 1. cause serious a11ergies; (2) attract rodents (squin-els); (3) attract bats (who have rabies); (4) act as lightning rods; (5) drop limbs and pine cones on people and property, causing injury; (6) damage prope1ty when sap drips, or leaves fall and stain with their tannins; (7) grow root systems that damage foundations, driveways, and roads; (8) have roots that act as trip hazards; (9) fall over when a strong wind blows, damaging property or killing people and pets; (10) catch on fire; (ll) be used to fashion arrows, clubs, and other weapons; (12) harbor ticks, roaches, spiders, and other critters that cause disease; (13) cast large shadows that prevent healthy sunlight from making it th rough to the ground; (14) harbor raccoons and other larger animals that can attack people; and ( 15) they attract termites that can destroy the infrastructure of any house.
5 For example: Could somebody simply share a beer with a licensed arborist who then scribbles on a bar napkin that a certain tree is dangerous because 'a lot ofpeople are allergic to oak tree pollen'? Or maybe one beer later scribbles that the tree is dangerous because "trees attract lightening and lightening can cause injuries"? Or after several more cocktails scribbles that a tree is dangerous because "the tree attracts birds, and for somebody with Ornithophobia (the fear of birds), such a bird magnet would lead to traumatic results."
8ofl5 Accordingly, the only reasonable interpretation of section 163.045 (1), Florida
Statutes is one where: (I) an arborist or landscape architect must detennine that a tree is a danger; and (2) for the detennination and documentation to be rendered utilizing only the methodologies and offidal documents applicable to the two respective industries.
Statutory Preemption Analysis
The subject statute does not preempt the City from challenging documentation of a dangerous tree, if the City questions whether the methods utilized by the arborist/architect rendering the documentation does not comply with industry standards.
In Florida, municipalities have broad Home Rule powers and can legislate concurrently with the State Legislature 011 any matter not preempted to the State. City of
Hollywood v. Mulligan, 934 So. 2d 1238 (Fla. 2006). Limited intrusion on Home Rule is permitted only to the extent preemption is the purpose of the State Legislature. See
Tallahassee Memorial Regional Med Center, Inc. v. Tallahassee Med Center, Inc., 681
So. 2d 826 (Fla. 1st DCA 1996). There are three types of preemption: (l) express preemption; (2) implied preemption; and (3) conflict preemption. Sarasota Alliance for
Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010).
A. Express Preemption.
Express preemption requires a specific legislative statement with explicit language, evidencing an expressed intent to preempt a particular field. The Lake Hamilton Lakeshore
Owners Assn., Inc. v. Neidlinger, 182 So. 3d 738 (Fla. 2d DCA 2015). For example, in
Phantom of Clearwater v. Pinellas County, 894 So. 2d l 0 11 (Fla. 2d DCA 2005), the appellate court considered whether Florida's statute regulating the sale and use offireworks
9ofl5 preempted local regulation of the sale of fireworks. In holding, that there was no preemption., the appeUate court stated:
We conclude that section 791.001 does not contain language creating an express preemption. This statute does not contain language similar to the phrase, "It is the legislative intent to give exclusive jurisdiction in all matters set forth in this chapter"-language that has been held to establish a level of preemption in the field of telecommunication companies ... .It does not come close to the language of Chapter 316, which creates a "Florida Uniform Traffic Control Law," and specifies "the area within which municipalities may control certain traffic movement or parking in their respective jurisdiction." . . . If the legislature intends to preempt a field, it must state that intent more expressly than the language contained in section 791.001. id. at 1018-19 (citations omitted).
As with Phantom ofClearwater, the statute here contains no lan1:,>uage reflecting a
Legislative intent to exclusively reserve jurisdiction in all matters related to trees, or dangerous trees. Moreover, the statute does not preclude local governments from ensuring that the documentation of any danger complies with the industry standards applicable to
ISA certified ai;borists and landscape architects.
R Implied Preemption.
There is no implied preemption contained within the statute. Implied preemption exists when the "legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted to the Legislature." The Lake Hamilton Lakeshore Owners Association, Inc. v.
Neidlinger, 182 So. 3d 738 (Fla. 2d DCA 2015). Further, "[w]hen courts create preemption by implication, the preempted field is usually a narrowly defined field~ 'limited
10of15 to the specific area where the Legislature has expressed [its] will to be the sole regulator.,.,
Id at 743 (quoting Tallahassee .Mem. Reg'l Med. Ctr., Inc. v. Tallahassee Med Ctr., Inc.,
681 So. 2d 826 (Fla. 1st DCA 1996)). The defining feature of implied preemption is the creation of an extensive regulatory scheme. Here, the Legislature did not establish a regulatory scheme and instead drafted a very narrow statutory prohibition applicable to minimal circumstances. There is simply no support to interpret section 163.045 (l),
Florida Statutes as impliedly preempting local governments from generaUy regulating tree preservation.
C. Conflict Preemption.
There is no conflict preemption either. Conflict preemption applies where a local ordinance conflicts with a state statute so much that the two rules cannot co-exist-as compliance with one violates the other. Phantom ofClearwater, Inc. v. Pinellas County)
894 So. 2d 1011 (Fla. 2d DCA 2005). Conflict preemption does not exist simply because an ordinance is more stringent than a statute or if it regulates an area not covered by a statute. See, e.g., F. Y.J. Adventures, Inc. v. City ofOcala, 698 So. 2d 583, 584 (Fla. 5th
DCA 1997} (upholding County ordinance which i..~posed stricter guidelines and standards on persons and organizations that conduct bingo games than was required by the statute)~
Lamar-Orlando Outdoor Adver. v. City ofOrmond Beach, 415 So. 2d 1312 (Fla. 5th DCA
1982) (Federal Highway Beautification Act did not preempt power of city to enact ordinances regulating or prohibiting signs more strictly than that law and did not preempt enforcement provision of ordinance).
tlofl5 Both section 163.045 (1), Florida Statutes, and section 12-6-6(B)(2)(c), The Code
C?.f the City ofPensacola, Florida may co-exist, as the Pensacola Code merely is simply more stringent than the statute, as it ascribes standards for arborists and architects to consider. The statute applies only when a tree is dangerous, and documentation from a certified arborist or licensed landscape architect substantiates the tree's dangerous condition. Ultimately, there is no conflict if the City challenges findings made by an ISA certified arborist, or a landscape architect, and if the findings of danger are demonstrated to fall short of industry standards.
D. Preemption Conclusion
The Legislature did not preempt local governments from challenging documentation provided under the statute. First, there is no express preemption language in the statute. Second, there is no extensive regulatory scheme promulgated to implement the statute. Finally, here in this case, there is no conflict between the statute and City Code.
Because the Legislature has identified experts to make the danger determination, then considering evidence from competing experts in the same field is a reasonable approach to resolving disputed questions on particular trees. Here, the City is not preempted from challenging, through submission of its own expert opinions, the conclusions reached by an arborist who generated questionable documentation that the Old
Tree is dangerous.
!2of15 Analysis ofMotion to Dissolve Temporary In}unction
When a court is deciding whether to dissolve an ex-parte temporary injunction, the party who obtained the injunction must present evidence to establish a prima facie case supporting injunctive relief. Thomas v. Osler Medical. Inc., 963 So. 2d 896, 900 (Fla. 5th
DCA 2007) (citing Hunter v. Bennies Contracting Co., Inc., 693 So. 2d 615,616 (Fla. 2d
DCA 1997). Specifically, the party seeking to keep the injunction in place must: present evidence that it will suffer irreparable harm~ establish it has no adequate remedy at law; prove it will likely succeed on the merits; and establish that the injunction will serve the public interest. Jouvence Ctr. For Advanced Health, LLC v. Jouvence R£;fuvenation Ctrs.,
LLC, 14 So. 3d 1097, 1099 (Fla. 4th DCA 2009). Considering the evidence presented at the hearings in this matter, then the Court finds that the City has met its burden as to each required element, as set forth below:
A. Irreparable harm.
Here., there is a likelihood of irreparable harm, as a 200-year-old oak tree, 63 inches in diameter, cannot be replaced, and its loss is irreparable.
B. No adequate remedy at law.
If the Old Tree is removed, and the removal was deemed illegal, then money damages alone cannot replace a unique 200-year-old tree which is likely much older than the State of Florida itself.
C. The City wm likely succeed on the merits.
The Court does not find the Defendants' interpretation of section 163.045 (1),
Florida Statutes to be credible. Specifically, the Comt finds that the Legislature has not
13 ofl5 preempted local governments from challenging the documentation determining a tree is a danger if the documentation and opinion are not credible. Here, the evidence at the injunction hearing raised serious doubts as to the accuracy and credibility of the documentation that the Defendants submitted to the City.
Indeed, Jerry Jarrett provided the only credible expert opinion. In her opinion, the
Old Tree is not a danger.
D. To deny the Defendants' motion is in the best interest of public policy.
Public policy is best served if the laws enacted by its duly elected leaders are enforced. When the Defendants purchased their lot, the Defendants were on constructive notice ofthe entire Pensacola Code, including the North Hill Preservation District's express provisions for preserving Heritage Trees. Furthermore, the Defendants had constructive notice of the requirement to design improvements in such a way as to protect viable trees.
The Defendants did not have to purchase a lot in the North Hill Preservation District or even in the City ofPensacola; once they elected to do that, then they submitted themselves to the community values represented by the regulations in the Pensacola Code.
R11ling
Based on the testimony and evidence presented, and upon the motions, briefs, and other applicable filings, the Court denies the Defend ants' motion and finds that:
A. The City has met its burden of going forward with sufficient evidence to establish a prima fade case to support keeping the injunction in place.
B. The City has made the requisite showing of a likelihood of success on the merits.
14 of !5 C. There is an immediate danger of significant loss or damage if the injunction is not maintained, as an irreplaceable 200 plus-year-old tree will likely be removed with.out the injw1ction remaining in place.
D. The City has no adequate remedy at law because monetary damages cannot compensate for the loss of a unique 200 plus-year-old tree.
E. The injunction will serve the public interest, as the tree ordinances in place were enacted by local government officials elected by the voters of the City, and are tl1e reflection of the public interest of the residents of Pensacola.
F. The City is excused from having to post any bond since it is a municipal governmental entity.
G. Keeping the temporary injunction in places preserves the status quo.
DONE AND ORDERED in Pensacola, Florida, this 30th day of October 2019.
Honorable Jeffrey L. Burns Circuit Court Judge cc: All counsel of record.
15 of15 November 12, 2019
To Save Our Live Oaks - Education is the Key
By Katherine Booth, City of Vero Beach Tree and Beautification Commission Member
A common misconception about southern live oak and laurel oak trees we have here in abundance is that it is necessary to prune their branches to prevent them from being uprooted in high winds.
The fact is that these oak trees grow only where hurricanes occur. Oak trees have thrived for millennium without pruning. They do not need to be pruned to withstand strong winds because their naturally rounded shape and low center of gravity helps them stay rooted to the ground. Pruning increases the risk of losing branches or uprooting because the weight of the branches becomes distributed to the ends and removing low branches makes the center of gravity higher in the air. This is not natural for oak trees.
Because of different acorns, both southern live oak and laurel oak trees are needed in the Florida ecosystem. Oaks with many small branches and leaves provide food and shelter for birds and wildlife. Oaks are shade trees and are not meant to be pruned to grow grass underneath. Oak trees must have a thick canopy of leaves for photosynthesis of sugar to survive. When leaves are few, the tree declines, is more susceptible to disease and decay, and finally death.
The misconception about the need to trim oaks may come from the people who prune trees, many of them untrained. Payment of a business tax to a municipality is not a license. As a matter of fact, Florida does not license people who prune trees. There is no standardized training or accountability for people
Page 1 of 2 who prune trees. The more of the tree they cut off, the more they can charge. If the person pruning your tree damages it, they may also make money cutting the tree down and replacing it.
So, let your magnificent oak trees be natural and let them infuse you with peace and calm you can enjoy for a lifetime.
Page 2 of 2 Saving Our Live Oaks
Saving Our Live Oaks November 13, 2019
By Katherine Booth, City of Vero Beach Tree and Beautification Commission Member
In the Tree and Beautification Commission we are discussing native plants a lot. The most outstanding specimens of native plants in Florida is the southern live oak and the laurel oak. Both oaks are magnificent shade trees. Because a primary human benefit is shade, it's a shame to see so many of these beautiful trees have most of their branches removed and consequently their leaves, so that the tree is essentially stripped of what makes it so magnificent and beneficial to us and the natural environment we live in.
You may have been told that it is necessary to strip the oak tree this way to prevent it from uprooting in high winds or from dropping branches. Actually, that has not been proven scientificallyi. The opposite is true and observable for the citizen scientist.
The fact is that southern live oak and laurel oak trees grow only where hurricanes occurii. They do not need to be pruned to withstand strong winds. Their naturally spreading but rounded shape and low center of gravity helps them stay rooted to the ground iii. Their many leaves buffer the branches in wind.iv When you think about it, oak trees have thrived hundreds of years without pruning. Pruning increases the risk of losing branches or uprooting because the weight ofthe branches becomes distributed to the ends (lion's tailing), and removing low branches (raising or over-lifting) makes the center of gravity higher in the air.v This is not natural for oak trees. Florida native oak trees are not supposed to be pruned to look like an African baobab tree or Asian bonsai. Oaks have purpose--they are not a decorative tree. Oak trees must have a thick canopy of leaves for photosynthesis of sugar to survive. When leaves are few, the tree declines, is more susceptible to disease and decay, and finally dies.
Like every other living thing, the oak is meant to reproduce itself. You may dislike the yellow pollen and acorns that fall on your car in cool months. But our furry and feathered friends need the acorns for food. Without pollen there are no acorns. As oaks mature they become shade trees, filled inside with many small branches and all over with many leaves, so that there is not much light that penetrates to the ground. This provides resting, nesting, and hiding places for birds, which are in serious declinevi, and small animals. Because of these benefits to wildlife, the live oak tree is considered the most biodiverse tree in North America.vii
Pruning the branches for more sunlight to grow a lawn underneath defeats the purpose of the tree. Although evergreen, some leaves will drop off in cooler months to make mulch underneath the tree. viii No need to buy chemically dyed wood chips!
Another myth you may have been told is that laurel oaks don't live more than 50 years. First, there is no scientific evidence to back that upix and second, nature needs more than one type of oak because the acorns are different and they drop at different times, to provide food for wildlife and birdsx. So don't be afraid to keep your laurel oak. Nature needs them too.
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Let's talk about where these myths come from. There is a lot of money made by people who prune trees. The more of the tree they cut off, the more they can charge. If the person pruning your tree damages it, they also make money cutting the tree down and replacing it. You should know that people who prune trees are often untrained. There is no particular training program for people who prune trees in Florida. You may be told that the person pruning your trees has a license. That is a business tax issued by the City or County and there is no penalty if the person does not pay this tax. The State of Florida does not license people who prune trees. Even certified arborists are not licensed by the State of Florida, nor by any City or County in Florida. The certifying organization, the International Society of Arboriculture, has certification programs that do not require a high school education or even require any particular experience. Pruning trees is easy money with lack of regulation and accountability. Also, tree pruning is a leading industry for illegal immigration and human traffickingxi because of the demand, by you, for unskilled labor to prune your trees.
Save your money! Florida's native oak trees have lots of leaves year round. Don't prune the trees thinking their limbs should be bare in cooler months like trees in the North that drop all their leaves in Winter.
Let's talk about the many benefits of oaks to people and the natural environment. Both Indian River County and the City of Vero Beach ordinances recognize native trees for their importance in shading and cooling our homes and ambient air; reducing noise and wind; preventing soil erosion; producing oxygen; filtering dust; absorbing carbon dioxide; enhancing aesthetics; and increasing the economic value of our property. Trees also contribute to our general well-being and quality of life. These benefits primarily come from the leaves, so if the branches are pruned off, so are the leaves, and the benefits disappear.
Let your southern live oak and laurel oak trees be organic and natural so you can enjoy them for a life time. Be calm and at peace as you sit in the shade of your magnificent oaks.
i Dahle, Gregory, PhD. "Scientific evidence lacking to prove thinning of the canopy of mature trees provides less wind resistance" , meta-analysis received by Katherine Booth, MS, August 31, 2018. ii UF/IFAS map image: Range of Southern Live Oak iii Florida Grades and Standards for Nursery Plants 2015; City of Vero Beach CHAPTER 72. - LANDSCAPING AND TREE PROTECTION. iv Gilman, Edward, PhD., "Effects of Pruning on Trunk Movement in Wind". v Houser, Steven. (2019) "Over Pruning Trees". Retrieved from httos://www.arborliogical.com/articies/all- articies/article-reoositorv /2012/iu Iv/over-oru n ing-trees vi U.S. North American Bird Conservation Initiative. "State of the Birds". (2019) httos://www.stateofthebirds.org/2019/wo-content/uoloads/2019/09/2019-State-of-the-Birds.odf. vii Di Silvestro, Roger (October 16, 2013) "The Wildlife Benefits of Acorns and Oaks". Retrieved from htt s: blo .nwf.org 2013 10, the-wildlife-benefits-of-acorns-and-oaks/ viii Carey, Jennifer, H. (1992) Quercus virginiana. Fire Effects Information System, U.S. Department of Agriculture, Forest Service. Retrieved from httos://www.fs.fed.us/database/feis/olants/tree/ouevir/all.html ix Silvics of Forest Trees of the United States Handbook #274 (1965 first year of publication) and Handbook #654 (1990) United States Department of Agriculture, Forest Service, U.S. Division of Timber Management Research. x Ober, Holly K. (2008) "The Value of Oaks to Wildlife". This document is WEC248, one of a series of the Department of Wildlife Ecology and Conservation, UF/IFAS Extension. xi Polaris (December 29, 2015) "Labor Trafficking in the Land of Opportunity", Retrieved from httos://oolarisoroiect.org/bl og/2015 /12/29/la bor-traffi eking-land-op oortu nitv.
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