A Review of Tampa's Tree Regulations

A Review of Tampa’s Tree Regulations

October

2015 An overview of the history and current status of regulations regarding trees in the City of Tampa with a list of reported issues and comparisons to other jurisdictions.

Prepared by Jerrod D. Simpson, J.D. as an independent consultant for the City of Tampa Attorney’s Office.

1 | R e p o r t o n T a m p a T r e e R e g u l a t i o n s

Oak trees line the walking path of a Tampa City Park on Laurel Street.


TABLE OF CONTENTS Background ..................................................................................................................................................................................3

Executive Summary ..................................................................................................................................................................4

History of Tree Regulation in Tampa, FL.........................................................................................................................8

I. Historical Background ..............................................................................................................................................8

II. Tampa’s Tree Code Today .................................................................................................................................... 10

Overview of Current Tree Regulations in Tampa, FL.............................................................................................. 12

I. Tampa’s Comprehensive Plan ............................................................................................................................ 12

II. Tampa’s Code Chapters ......................................................................................................................................... 13

A) Chapter 13 ......................................................................................................................................................... 13

B) Chapter 27 .............................................................................................................................................................. 13

C) Miscellaneous Chapters.................................................................................................................................... 14

III. Technical Documents ........................................................................................................................................ 14

A) Chapter 13 Tree and Landscape Technical Manual......................................................................... 14

B) Urban Forest Management Plan ................................................................................................................... 15

Reported Issues of Stakeholders...................................................................................................................................... 17

I. Defining Key Terms................................................................................................................................................. 19

A) How does the City of Tampa classify a “grand” or “protected” tree?....................................... 19

B) What is “reasonable use”? ............................................................................................................................... 27

C) What is “effective removal”?........................................................................................................................... 31

D) What constitutes “structural damage”? ................................................................................................ 34

E) When is a tree considered to be a “hazard” or “dangerous”?........................................................... 35

II. Mitigation Requirements and Landscape Standards................................................................................ 36

III. Setback and Buffer Requirements ............................................................................................................... 45

IV. Enforcement and Departmental Issues ..................................................................................................... 49

V. General Policy Concerns and Other Legal Issues ....................................................................................... 52

Conclusion.................................................................................................................................................................................. 54

List of Sources .......................................................................................................................................................................... 55


BACKGROUND

In September of 2008, under City of Tampa Mayor, Pam Iorio, the Mayor’s Steering Committee on Urban Forest Sustainability was created and tasked with developing a vision for Tampa’s Urban Forest. 1 The goals and objectives were to be rooted in data that was collected during the City’s mandatory tree canopy study under Chapter 13. 2 In November of 2013, the City of Tampa adopted its most recent Urban Forest Management Plan. 3 Among other things, that plan recommended that the City review its Tree and Landscape code to determine if the policy framework was effective in meeting the City’s goals for conservation, reclamation, restoration and increase of natural resources within the urban forest. 4 In June of 2011, City of Tampa Mayor, Bob Buckhorn, assembled a committee to focus on economic issues. 5 The 19 member group was dubbed the Mayor’s Economic Competiveness Committee (ECC), and it consisted of developers, engineers, attorneys and a neighborhood representative. The ECC produced a report in 2012 called, “Tampa Open for Business”. 6 The report recommended that the City analyze its current regulatory system in regard to land development regulations with the goal of streamlining codes and ordinances, processes and technologies, as well as the City’s staff and organizational structure. 7 As a result of those recommendations, City Attorney, Julia Mandell, and Planning & Urban Design Manager, Catherine Coyle, hired the services of a consultant to act as an independent reviewer of the City of Tampa’s current policies and practices with regards to Tampa’s urban forest. 8 This report is the product of that review.

This report does not represent the views or opinions of the City of Tampa or the City Attorney, nor is it meant to represent the comprehensive views of all of Tampa’s citizens with regards to tree regulations. This document was developed through legal research and interviews with just over a hundred individuals including concerned citizens, neighborhood association leaders, architects, landscape architects, civil engineers, design and land development consultants, various building contractors, real estate professionals, property appraisers, land use attorneys, members of the Variance Review Board, Architectural Review Commission and the Barrio Latino Commission, former members of the city’s tree commission, members of the Tampa downtown partnership, tree trimming professionals, various environmental scientists and certified arborists, tree industry consultants and zoning consultants as well as numerous city staff members in the legal department, the parks department, stormwater, natural resources, code enforcement, and the construction services departments. In addition, interviews were conducted with city attorneys, urban foresters and members of parks and natural resources departments from other jurisdictions across the state. The language of this report is the product of the author and should not be construed to represent any official views or positions. The intent and purpose of this report is to pinpoint the issues with Tampa’s tree regulatory system and inform public discussion for future revisions of the code. Finally, it should be noted that the views reported here are not representative of the views of the author.


EXECUTIVE SUMMARY

• Tampa’s regulation and protection of trees dates back to 1897. • Tampa’s current ordinance originated in 1972 and was rewritten for a third time in 1997

with much of the current effective language dating back to the 1997 ordinance. • The ordinance has been controversial since its inception. Current revision efforts have been

urged by the City of Tampa staff, including the City’s legal department and planning and development departments. Others have urged revision including the Mayor’s Economic Competiveness Committee, the Advisory Committee on Natural Resources, and the Technical Advisory Committee who developed the City’s Urban Forest Management Plan.

• The City’s policies regarding trees are scattered about the code with provisions in Chapters 13, 16, 19 and 27. Regulatory provisions are also contained in the Chapter 13 Tree and Landscape Technical Manual as well as the City’s Urban Forest Management Plan, both of which have been adopted via ordinances. Finally, the City’s Comprehensive Plan contains policies regarding trees as well.

• Almost all of the persons interviewed in this process commonly agreed that revision of the Tampa Tree Code should follow these principles: clarity and predictability, efficiency and flexibility.

• Among other things, suggestions to improve Clarity and Predictability include:

o Improve the definitions of key terms, such as: “grand tree”, “effective removal”, “reasonable use”, “structural damage”, and “hazardous” or “dangerous” trees by incorporating a risk assessment evaluation requirement.

o Clarify certain minimum landscape standards and mitigation requirements in the code, such as what are the suitable site placement factors; clarify the types of trees required in certain locations; establish quality requirements for preserved trees; and define when trees can receive credit for preservation if they are actually retained after development.

o Make information concerning grand tree evaluations available in a more user-‐friendly format. For example, when a tree is evaluated as a grand tree, put that information onto the Tampa Tree Map online, so that a potential buyer or developer of a lot can access it quickly and more easily consider the potential effect of the tree on the lot’s value. Alternatively, it has been recommended that “grand” trees or other trees with elevated protection status could go through a designation process similar to the historic designation, where upon receiving the designation, the trees would be inventoried with an easily accessible online map.

o Provide incentives or penalties to landscape architects and other development plan drafters geared toward increasing accuracy in landscape plans. Some examples include, fast tracking for permits that are stamped by ISA certified arborists and


maintaining a best management practices class for landscape professionals. that includes information about tree care.

o Increase educational efforts to the public on the code’s requirements and tree site-‐suitability issues in order to decrease illegal tree removal, improper tree plantings in the right-‐of-‐way, and reduce the hiring of unqualified tree trimmers who often create future, unsafe conditions and enforcement problems.

o Articulate more clearly the acceptable alternative methods for encroachment into a tree’s protective root zone and move rules pertaining to protective root zones out of the Technical Manual and into code chapters. Consider having a tree encroachment permit process that allows development into the protective root zone under clearly expressed circumstances.

• Among other things, suggestions to improve Efficiency and Flexibility include:

o Create mitigation requirements that are based on the results of the City’s Tree Canopy study. For example, the City could create priority-‐planting districts, where mitigation requirements are different based on the needs of the canopy. Or the city could adjust protection and mitigation requirements in the code based on a planning district’s canopy coverage as determined by the canopy study. Also, the city should prioritize all plantings made with the tree trust fund in areas that display a need according to the study.

o Create a more proportional mitigation requirement. For example, a tree that is being removed because it is dying of natural causes should not require the same mitigation as the removal of a fully healthy tree because the harms to the Public are not the same.

o Consider other factors besides the mere size of the tree when giving it an elevated protection status, such as the tree’s position within a grove, the tree’s site location in regards to the proposed development, the health and quality of the tree.

o Consider incorporating a risk assessment evaluation that both determines the status of protection that a tree receives, and the level of mitigation that is required if that tree is to be removed.

o Allow more mitigation options, including possible efforts that are ecologically focused, but do not necessarily involve planting or preserving trees. For example, allow the preservation of a palmetto stand or other understory vegetation to be counted as credit, or allow the property owner to spend the money currently required to be paid into the tree trust on her own property for other ecological improvements of equal value to the Public. Or allow other development credits to be applied toward reducing the tree trust fees.

o Allow increased flexibility for the removal of a grand tree by adding other factors besides structural damage or the tree’s condition, such as when the tree is destroying or interfering with underground utilities or creating an unsafe condition on nearby pavements.


o Increase administrative ability to determine when grand tree removal is proper in exchange for a variety of mitigation options that result in equal value to the tree’s appraised value.

o Consider creating another tier of protection for trees apart from “protected” or “grand” in order to find a middle ground for certain types of trees or situations.

• Interviewees also expressed concerns about Enforcement issues:

o City staff report that most enforcement issues stem from “door-‐to-‐door” tree trimmers. This is a label for landscape workers who typically have a truck and a chainsaw, and they go door-‐to-‐door to solicit business. They are most often untrained and unqualified to trim trees, and thus, they create dangerous conditions for both themselves and homeowners by destroying the tree and by not carrying appropriate worker’s compensation plans or liability insurance. In these situations, the homeowner is not necessarily responsible since they did not commit the act, nor were they aware of the extent of damage.

o Recommendations include requiring a best management practices class for all landscape companies and their employees that incorporates tree trimming techniques, and require all tree trimmers to display a certificate of completion. Or create some type of registration database, business operating permit, or arborist license requirement for all tree-‐trimming companies in the city. Or, require tree trimming permits for all protected trees, and as a part of that permit, require that work is supervised by an ISA certified arborist.

o The process in handling complaints via the Tree Hotline needs to be improved by directing citizens to more easily find tree removal permits before deploying city staff to investigate. For example, set up automated answering services that instruct citizens to check ACCELA for permits prior to reporting a violation. In addtion, the City could put the risk assessment or hazard evaluation information on the permit notice.

o Citizen interviewees report complaints with TECO tree trimming. Efforts should be made to work with TECO and resolve these issues as well as educating the public on what trees may be properly planted in right-‐of-‐ways.

o The city should consider having an enforcement officer who is a trained arborist dedicated solely to handling illegal tree removal cases.

o A mechanism needs to be created to allow construction inspectors to know when trees are planted on a development site as part of the required minimum landscape standards, so that those trees are not merely removed after the Certificate of Occupancy is issued.

o The city should continue its efforts to streamline and improve the permitting process and increase interdepartmental communication, so that consistency in plan approvals continues to improve.


• Tampa’s diverse community possesses an equally diverse set of viewpoints on General Policy Issues related to tree preservation, concerns cited were:

o Interviewees from various sides of the issue reported concern over the balance of

private property rights with the Public’s right to protect natural resources. o Some report a concern that Tampa’s tree code results in a serious reduction in tax

revenues by hampering the natural pace of development in the market. o Alternatively, there is a concern that development is causing the destruction of too

many trees and negatively impacting the environment, which will ultimately hinder Tampa’s tax base and real estate values in the long term.

o There is a debate as to whether the intent of the code is to preserve Tampa’s canopy as a whole or to preserve individual trees on single plots of land. Clarification of this purpose will ultimately determine whether a mitigation-‐based code will comply with Tampa’s comprehensive plan.


HISTORY OF TREE REGULATION IN TAMPA, FL I. HISTORICAL BACKGROUND

The City of Tampa has a long history of protecting trees through regulations. The first tree

protection ordinance dates all the way back to 1897 when the City formally made it unlawful for any person to “injure, deface or mutilate any shade tree, plants or flowers growing on any streets of the city”. 9 The ordinance also made it a crime to nail a poster to or hitch livestock to any street tree. These offenses were enforced by the sheriff and punishable with a fine of up to twenty-‐five dollars or thirty days in jail. Historical reports of tree planting programs and early Arbor Day celebrations dating back to 1886 in Florida, evidence the fact that Tampanians have been concerned about trees and the City’s natural environment since its founding. 10

In the 1940’s with the increasing use of automobiles, the City of Tampa began regulating trees beyond just city-‐owned lands and started putting certain requirements on private property owners as well. 11 In 1945, the City adopted a Uniform Plan of Beautification for the City’s parks and right-‐of-‐ways, which proscribed that only certain species of trees could be planted along streets. 12 In January of 1946, the city council gave the Parks Superintendent the authority to remove trees located next to streets that didn’t comply with the overall plan, whether on public or private property. 13 By 1949, street trees were becoming more hazardous as vehicle collisions at intersections increased. The City responded by declaring certain street trees that blocked the view of an intersection to be a public nuisance. 14 The Chief of Police was charged with determining whether a tree obstructed a driver’s view. Next, the Chief would notify the property owner to take care of the nuisance, and the Parks Superintendent had the authority to enter onto the property and trim the tree back if the property owner failed to do so within 15 days. 15

It wasn’t until the early 70’s that the City of Tampa initiated discussion of a more comprehensive set of tree and landscape regulations that went beyond just street trees or trees on public property. 16 The Rose Circle of the Tampa Federation of Garden Clubs, and its 45 members were credited with lobbying strong support for an ordinance that protected trees everywhere in the city. 17 With reports of indiscriminate development occurring along the city’s major corridors, Councilman Joe Chillura took the lead by drafting a series of ordinances designed to preserve and protect trees in all new developments. The structure of the ordinance was modeled after other cities like Clearwater, St. Petersburg, West Palm Beach and Gainesville; all of which had already created permit processes for tree removal at the time. 18

The city’s tree code ran into early trouble according to a 1972 article by the Tampa Bay Times, when Mayor Dick Greco delayed signing the bill around the same time that Schiltz Brewery Co. was planning a $10 million facility in Tampa. 19 According to the report, brewery officials said they wouldn’t be able to build here if the law was strictly enforced, and the Mayor responded by recommending the creation of a tree commission to hear appeals and resolve conflicts under the ordinance. 20 Other critics of the ordinance voiced concerns that literal enforcement of the law


would crush Tampa’s economy by blocking similar, large investments in development. While the ordinance’s express purpose was to preserve and protect trees for aesthetic and ecological benefits and to counteract exhaust fumes of cars, it accomplished this goal through regulating development standards and requiring permits for tree removal and land clearing. 21 Mayor Dick Greco was quoted saying that developers were “slaughtering” trees, and that the new ordinance was designed to stop “bulldozers from ruining the city”. 22 The first enforcement actions taken under the new regulation were regarding the construction of Tampa’s largest retail mall of the time, in the USF area on Fowler and 30th street. The city threatened to serve arrest warrants to the developers for clear-‐cutting eight square blocks of pines and oaks without a permit, but the case eventually settled out of court. 23 The original ordinance was full of controversy from developers and tree specialists as well as environmentalists all of whom felt that the new law either went too far or not far enough – an argument that continues today. A leading voice of criticism was the owner of a tree trimming business named, Vance Hall, who spoke in front of the city council many times to oppose the inclusion of single-‐family residential homes within the scope of the ordinance. 24 Mr. Hall’s main criticism of the ordinance was directed to the inclusion of private homeowners within the scope of permit requirements. As a compromise, the City lowered the fee for homeowners from $5 to $1. 25 While the argument to exclude private homeowners has been raised numerous times over the decades, the City has never changed the ordinance to exclude private homeowners from permit requirements.

Even proponents of the City’s new tree law criticized the City for lack of enforcement, since Tampa’s Director of Housing, Inspections and Community Services of the time, Ron Rotella, publicly admitted that his inspectors were not really enforcing it. 26 This prompted Councilman Chillura to say that if he had to do it over again, he would not put enforcement “in the building and zoning department” because “over the years [they] may have become overly friendly with contractors.” 27 Chillura further said that he would rather see it enforced by the Parks Department with a “trained arborist to administer it” so that it was not subject to “the whims of developers and builders”. 28 In fact, the first major controversy dealing with the law was directed towards its weak enforcement. 29 Councilman Chillura publicly criticized everyone involved from building inspectors to the judges in municipal courts for not taking the law seriously. 30 The controversy peaked when the Tampa Bay Times ran a story claiming that the ordinance collected money from law-‐abiding developers and


homeowners, but not from violators of the law.31 In that article, the Times uncovered that permit fees had collected $12,780 from citizens, whereas only $25 had been collected from violators. At the time, the City staff blamed judges in municipal courts since many of the cases brought to prosecute tree code violations were simply dismissed.32

II. TAMPA’S TREE CODE TODAY Eventually, Chillura’s recommendation of moving the administration of the ordinance to a

different department was taken when the ordinance was overhauled for the first time in 1986. 33 Some enforcement measures were moved to the Parks Department by investing the Director with the authority to approve or deny landscape plans in new developments. 34 While landscape plans and permits for removal were submitted and processed through the Housing, Inspections and Community Services department, review and approval of those plans and permits were performed by the Parks Department in another building. 35 This move was not without controversy either, since the inclusion of multiple departments located in different offices throughout the City increased costs of administration and decreased efficiency of permit processing times. 36 These inefficiencies and others prompted the City to create a new department called Natural Resources and consolidate their offices within the planning and development building. 37 This compromise allowed for a separate department to administer certain parts of the tree code, but located their offices in the same building as other permit processing departments to maximize efficiency. The goal is that citizens have a “one-‐stop shop” for all permit-‐related activity. 38 These efforts were directed toward finally resolving the concerns voiced by Councilman Chillura decades ago.

Some of the controversies that followed the tree code in the early 1970’s are still relevant today. At the heart of these issues is the City’s continued effort to balance the needs of economic development with the protection of valuable natural resources. Tampa has continued its streak as a “Tree City USA” community for 33 straight years, one of the longest for a City of its size and density. 39 This designation is given by the Arbor Day Foundation to recognize a community’s commitment to managing and expanding public trees, and it is a designation in which the City takes great pride. 40 In its continual effort to strike the proper balance of interests and adapt to changing needs, the City has amended the tree code 40 times since 1972, including two complete overhauls.

The second and latest overhaul of the ordinance was conducted in 1997, and much of the language in effect today dates back to that time. 41 The 1997 rewrite maintained much of the same key concepts as the original 1973 ordinance but made quite a few adjustments. In fact, the City has continued to adjust the code with ten amendments since 1997: adding overlay districts; 42 amending the definition of “trimming” to include a reference to “ANSI standards” and creating a tree hazard evaluation form; 43 amending mitigation requirements and the definition of “reasonable use”; 44 allowing for a grand tree to be removed on the basis of structural damage and changing the penalties; 45 adding irrigation system requirements and alternative methods of compliance; 46 exempting aviation authorities; 47 amending the appeals process; 48 And finally in 2006, the most changes were made since 1997. In that ordinance the city: changed the list of exempt species, established a new procedure for hazardous removal, updated the technical manual, created a tree trust and in-‐lieu payment system, changed the radius of required pervious areas, and established a


2-‐year moratorium on the ability to demolish a structure when a grand tree is removed from a property based on structural damage. 49


OVERVIEW OF CURRENT TREE REGULATIONS IN TAMPA, FL Currently, the City of Tampa has a comprehensive set of regulations dealing with trees, from permit processes for tree removal to zoning codes that mandate minimum landscape standards in new developments. The City’s goals, objectives, and policies relating to trees can be found in a variety of places from the City’s Comprehensive Plan down to numerous city code chapters. There is also a set of technical standards that have been adopted via an ordinance making them binding as policy. Finally, the City has incorporated through city council resolution and executive order an Urban Forest Management Plan, which contains many objectives and policies as well.

I. TAMPA’S COMPREHENSIVE PLAN

The Florida Community Planning Act was adopted by the State of Florida to help guide and control future land development. 50 Among other things, this statute requires that communities adopt a comprehensive plan for future development, and all land development regulations within that jurisdiction must comply with that plan. 51

Tampa’s Comprehensive Plan (the Comp Plan) was updated in 2008 to include goals and policies specifically directed toward urban forestry. 52 Much of the Comp Plan’s policies directed the City to consider its trees as assets of the community and include them as part of the City’s infrastructure. For example, Policy 18.6.8 – “All development and major renovations shall be required to provide shade trees along sidewalks to encourage pedestrian activity, and reduce overall dependence on automobiles.” 53 The Comp Plan also requires that the City provide incentives to developers to preserve trees and natural resources, such as giving parking credits 54 and creating other programs that address low-‐impact development, energy efficient construction, and reward ecological conservation by granting additional floor area, and other incentives. 55

The Comp Plan emphasizes the desire for tree-‐lined streets in numerous ways, but perhaps most importantly by establishing a system for the creation of a “scenic corridor”. 56 One of the goals of establishing a scenic corridor is “to protect roadways where significant tree coverage and landscaping already exist”. 57 The plan also requires the City to “place a high priority on acquiring and preserving open space lands for purposes of recreation, habitat protection and enhancement, flood hazard management, public safety, and water resources protection for the overall benefit of the community.” 58

The Comp Plan contains another set of objectives and policies directed to management of the City’s tree canopy. 59 These provisions require the City to provide 800 trees annually, 60 to implement the recommendations from the Tree Canopy Analysis, 61 and to consider the street trees as infrastructure and to preserve and protect these trees as a community asset. 62

The Comp Plan mandates certain conservation policies by stating that the “City shall require development petitioners to develop and implement habitat management plans as part of their development approval, where appropriate.” 63 The City must also “continue to require the


conservation of trees and existing native vegetation in new development projects” 64 and minimize the “cutting of trees and significant natural vegetation along the river shoreline”. 65

The Comp Plan states, “The City shall continue to promote the City’s Tree and Landscape Ordinance as a key element in retention and provision of private plant materials to support sustainable development principles of tree preservation, and minimal impact to the existing site resources.” 66

Finally, the Comp Plan has several policies that require the City to create incentives to improve the urban forest through sustainable development. The City must “seek to maintain and increase environmentally beneficial plant life,” 67 and develop a “greening” program that focuses on increasing tree cover in parking lots. 68 The City must also incorporate into its plan review process considerations of how trees and shrubs can “be oriented on a construction site to reduce cooling loads by taking advantage of evapotranspiration and shade.” 69 The Comp Plan also requires the City to “investigate ways to provide incentives to property owners who use certified arborists to assess the health of and properly trim existing large-‐trunk trees.” 70

II. TAMPA’S CODE CHAPTERS

There are several relevant provisions pertaining to trees throughout the City’s code, but the bulk of the regulations are contained in Landscaping, Tree Removal and Site Clearing, Chapter 13. Another set of regulations can be found in the City’s Zoning and Land Development, Chapter 27. 71 Miscellaneous tree-‐related provisions can also be found in Chapters 16 and 19.

A) CHAPTER 13

Since the regulations found in Chapter 13 apply to all properties within the City of Tampa, 72 the scope of the Chapter is determined by the definitions of “protected” and “grand” trees. These definitions include all mangrove and cypress trees and all other trees over 5”,73 except that there is a list of certain species that are exempted completely.74 The code will be explained in more detail in the Reported Issues section of this report, but generally speaking, Chapter 13 accomplishes its intent of protecting trees, wetlands and natural resources 75 by establishing a permitting system for the removal of any “protected” tree and for the removal or trimming of any “grand” tree. 76 It lays out the criteria for granting permits; 77 establishes certain preservation requirements in new developments; 78 creates notice and appeal processes when permits are granted for grand tree removal; 79 prescribes the criteria and process for granting variances; 80 and invests the authority to administrate the code in an Official titled: the Natural Resources Coordinator. 81 Chapter 13 also establishes penalties for violating the tree removal regulations, which can go as high as $15,000 per violation when a grand tree is removed without a permit. 82 Finally, Chapter 13 mandates a tree canopy study to be performed every 5 years 83 and establishes a tree trust fund where people can make payments in situations where they cannot replace a removed tree on site. 84

B) CHAPTER 27


Chapter 27 contains the buffers and screening requirements for developments based on land use. 85 These requirements state what types of trees and plants may be used in the buffer zones that separate adjacent properties, and how much space is required dependent on the land use and the adjacent land use. 86 Chapter 27 also mandates a certain amount of greenspace on each new development. 87 The code refers to this as the “Minimum Amount of Landscaped Area,” the size of which is determined by the land’s use. The code also mandates where the landscaped area will go in certain types of land uses as well as how many trees must be planted, which is typically one per 1,500 square feet. The code also establishes an in-‐lieu payment system which allows developers to pay into a fund if they cannot strictly comply with the code’s mandatory minimum amount of landscaped area. 88 This is known as the “Landscape-‐in-‐Lieu” Fund, but the code refers to it as the “Landscape Area Trust Fund”. 89

C) MISCELLANEOUS CHAPTERS

The City of Tampa code also contains provisions in Chapter 16 and 19 that pertain to tree regulation. Chapter 16 invests the power to administrate the money received from the Tree Trust and Landscape-‐in-‐Lieu Funds with the Parks Department. The Tree Trust Fund must be used solely for the “selection, acquisition, installation, and maintenance of trees to be placed in department managed lands, rights-‐of-‐way, and properties in which the city has a legal interest”. 90 It may also be used to fund the mandatory tree canopy study. 91 The Landscape-‐in-‐Lieu Fund must be used “solely for the purpose of acquiring new park land and/or improving existing public park lands and/or public right-‐of-‐way by providing, enhancing, or reestablishing green space solely within the boundaries of the landscape district in which the contribution was collected.” 92 Thus, the Landscape Area Trust Fund is location specific, and must be spent in the district from which it was collected; whereas the Tree Trust Fund may be spent anywhere in the City.

Finally, Chapter 19 makes it unlawful for a person to allow a “dangerous tree” to remain on his or her property. 93 A dangerous tree is defined as one that meets the highest rating on the Chapter 13 hazard evaluation form. 94 A property owner who has been issued a Notice of Violation for a dangerous tree may remove the tree without any of the permit requirements under Chapter 13, which means that the property owner need not pay the application fee for a tree removal permit, nor does the property owner need to replace or mitigate for the removed tree. 95 If the property owner fails to remove the tree, they could face penalties and a code enforcement proceeding.

III. TECHNICAL DOCUMENTS

The City of Tampa has incorporated into its policies a Tree and Landscape Technical Manual as well as an Urban Forest Management Plan.

A) CHAPTER 13 TREE AND LANDSCAPE TECHNICAL MANUAL


The current Chapter 13, Tree and Landscape Technical Manual was adopted by ordinance in 2006. 96 Among other things, the Technical Manual includes: submittal requirements for tree removal permits, right-‐of-‐way trimming permits, site clearing permits, and site plan reviews. 97 It also contains permit forms and certain criteria for review of plans and permits.

Perhaps, most relevant to this report however, are the Technical Manual’s “Tree Protection Standards,” which include barricade details for trees during construction, protective root zone requirements, requirements for work that is done within a protective root zone, and root pruning guidelines. 98

B) URBAN FOREST MANAGEMENT PLAN

The Urban Forest Management Plan is an effort to develop a comprehensive strategy for managing Tampa’s urban forest. It attempts to accomplish this task by incorporating the many diverse interests of the City into a single vision with six basic goals. 99 Paraphrased, those goals are:

1. Government efficiency 2. Economic growth 3. Public and private partnerships 4. Increase the social, environmental, and economic benefits of the urban forest by

reducing costs 5. Support communities 6. Support basic tenets of the City’s Comprehensive Plan

The plan lays out a series of quantifiable steps to guide activity and help achieve goals through analyzing specific criteria and performance indicators and developing alternatives for action. 100 The plan’s implementation is set out in five-‐year increments with actions to be taken each year. The plan recommends several actions be taken with regard to the City of Tampa’s land development regulations. Some of those recommendations include:

• Implement the City of Tampa’s Tree Matrix as a guide for all code required tree plantings. 101

• Require all publicly funded tree plantings to use wind resistant tree species along hurricane evacuation routes. 102

• Amend the Tree Trust fund to require mitigation to occur within the same municipal planning district or in another district that has demonstrated a need based on the Tree Canopy Study, and require all tree plantings and removals to result in no net loss of canopy coverage. 103

• Revise the code to clarify and streamline protection and management of private trees to support sustainable development. 104

• Revise the code to include preservation and management plans for native plant communities and restoration of native vegetation on development sites. 105

• Revise the code to require the removal of all invasive plant species on all new or redesigned development sites. 106


• Revise the code to allow the use of alternative site designs and mitigation strategies that support objectives of the Plan. 107

• Implement biodiversity requirements into landscape plans. 108 • Allow the City of Tampa to revoke the occupational license of an arborist that has

been found to be in violation of ANSI standards, and require the use of certified arborists on all publicly financed Capital Improvement Projects. 109

• Establish measurable criteria for assessing damaged trees, effectively removed trees, and other code violations. 110

• Require certification and licensing for all landscape and arboriculture industry working within the City of Tampa. 111

• Revise technical manual to include tree planting and establishment guidelines. 112 • Require minimum levels of training for City staff that enforce the code, including

training on the use of ‘Open Tree Map’ and other inventory software. 113

These aforementioned policies are often referred to collectively as the “tree code”, and that phrase is used in this report.


REPORTED ISSUES

During the course of three months, over a hundred persons were interviewed to determine the most pressing issues with the current policies and procedures that regulate trees in Tampa. People were contacted based on their previous involvement with tree code related issues or other civic engagements. No scientific questionnaire was used as these interviews were conducted in a narrative format by the author of this report. In order to obtain the broadest range of viewpoints, interviewees were selected from a wide range of communities, including: concerned citizens, neighborhood association leaders, architects, landscape architects, civil engineers, design and land development consultants, various building contractors, real estate professionals, property appraisers, land use attorneys, members of the Variance Review Board, Architectural Review Commission and the Barrio Latino Commission, former members of the city’s tree commission, members of the Tampa downtown partnership, tree trimming professionals, various environmental scientists and certified arborists, as well as numerous city staff members in the legal department, the parks department, stormwater, natural resources, code enforcement, and the construction services departments. In addition, interviews were conducted with city attorneys, urban foresters and natural resources departments from other jurisdictions.

Generally speaking, most of those interviewed from the City of Tampa have the perception that the City’s current tree code needs more clarity and predictability as well as flexibility and efficiency. However, the manner of obtaining these goals is an issue where reasonable minds disagree.

For organizational purposes, the reported concerns have been divided into five categories:

I) Definitions of Key terms II) Planting Requirements III) Space Requirements IV) Enforcement Issues, and V) General Policy Concerns.

The definitions of key terms within the ordinance not only determine the scope of what the

ordinance protects, but also the processes and mechanisms that are used to administrate the law. Planting requirements refers to situations where the City requires a citizen to plant something, either as a mitigation requirement or a minimum landscape standard. Space requirements are issues that deal with buffers, protective root zones, and the questions of how much space should be dedicated to protect and preserve a tree or to buffer between adjacent properties. Enforcement issues range from the need for improvement with certain aspects of administration to problems with untrained tree trimming companies. Finally, general policy concerns are the broader philosophical and policy issues that were raised by almost every interviewee since most people have an opinion over how private property rights should be balanced in this debate, and that often


guides what approach they believe the City should take. Within these five general categories were a host of other sub-‐issues. When available, permit data or specific case studies are cited to exemplify an issue.

In some situations, comparisons are made to other jurisdictions in order to analyze different approaches to tree regulation. However, it should be noted that the City of Tampa has one of the more extensive and restrictive tree protection ordinances in the Nation, with much of that policy in effect since 1972. Therefore, Tampa’s rich history of preserving trees goes back further than most other jurisdictions, and the scope and comprehensiveness of Tampa’s code reflect the decades of debate and experience in this area.


I. DEFINING KEY TERMS

A) HOW DOES THE CITY OF TAMPA CLASSIFY A “GRAND” OR “PROTECTED” TREE?

Only “grand” or “protected” trees require a permit for removal; therefore, the definitions of “grand” and “protected” trees are what determine the scope of protection for all trees in the City of Tampa. “Protected” trees are all mangroves and cypress trees, and any other tree with a trunk of 5” or more -‐ unless they fall under the specific list of exempt species. 114 In order for a tree to be classified as a “grand tree,” a mathematical formula must be calculated using a point system that is based on four criteria: species, trunk diameter, height and average canopy coverage. 115 Each species has a particular point threshold. If the tree attains the minimum number of points to meet the threshold, then the tree is classified as a “grand”, and a different set of rules applies to how and when it can be removed.

A grand tree classification is important because grand trees have vastly different standards for when they may be removed as compared to protected trees. A permit to remove a protected tree may be issued if the Natural Resources staff deems the tree to be hazardous, irreparably diseased or injured, or if it blocks vision of the right-‐of-‐way, has too much unhealthy vegetation, needs to be removed for an approved infrastructure improvement, prevents access to a building site, is located in an area where fill will be placed, needs to be removed for a bona fide agricultural use, or when the protected tree is located where a proposed structure will be -‐ as long as the protected tree is denying reasonable use of the parcel, and the proposed use cannot be reasonably reconfigured to preserve the tree. 116 In other words, there are many ways to get the approval to remove a protected tree, but discretion is placed with the Natural Resources department.

However, a grand tree can only be removed under three circumstances: (1) if the grand tree is “hazardous” according to the code’s prescribed hazard evaluation form; 117 (2) if the grand tree is causing or will likely cause structural damage within one year to an existing building; 118 or (3) if the grand tree is denying reasonable use of the parcel; 119

Reasonable use determinations for protected trees may be granted administratively at the staff level; whereas, reasonable use determinations for grand trees must go before the appropriate variance approval board. 120 Whenever a grand tree removal permit is issued, all adjacent neighbors are entitled to notice and appeal with a 14-‐day stay on removing the tree. 121 However, if Natural Resources staff considers the tree in an emergency condition, they may allow for removal without notice. 122 A permit is also required to trim a grand tree. 123

The current definition of grand and protected trees results in the following sub-‐issues:

1) Field Measurements

The code does not provide an express method for measuring trees in practice beyond the brief explanations in § 13-‐6, Schedule B, Point System and the code’s references to D.B.H. (diameter at breast height). 124 “D.B.H.” is not clearly defined within the code, but it is an industry standard


term, which is usually defined as the diameter of the tree as measured at 4.5’ above grade. However, the Point System in the code relies on “trunk circumference”; thus, some parts of the code refer to the use of diameter (DBH) as a measurement and other parts refer to circumference. Furthermore, there is no prescribed method for measuring trees with split trunks or multi-‐trunk trees such as Ligustrums or Crape Myrtles.

Currently, site plans for proposed development projects are required to show the diameters of all trees located on the parcel. There has been an administrative decision that when site plans show a tree with a minimum 34” diameter trunk or greater, Natural Resources staff is called upon to make an on-‐site, “Grand Tree Evaluation”. When making the grand tree evaluation, circumference is used to determine points. Circumference is measured, and then divided by 3.14 in order to calculate diameter. Thus in reality, circumference is the actual measurement taken in the field. Some external stakeholders cited to experiences where privately hired arborists and city staff have debated the points system in determining whether a tree is grand or not. Since minor discrepancies in how the tree is measured can result in vastly different point totals, minimal differences in measurement can have large consequences on a person’s ability to remove a tree or on how much a person’s mitigation costs will be. Thus, trees that are close to the threshold of grand status can become a source of conflict.

Another reported measurement issue, is that it is not possible for a layperson to know whether they have a grand tree on their property without first consulting the City. That is because the point system calculation for grand trees includes both height and average canopy spread as factors. Including these criteria makes the process of measuring and evaluating a grand tree impossible without special equipment. Even measuring the trunk diameter can present difficulties since trees are rarely uniform, and where on the tree to measure can be a subjective decision. For example, the tree might have a large branch sticking out right at the 4.5’ feet above grade mark. In such a case, an arbitrary height like 4.5’ above grade can result in

Tampa city staff estimate that this is the City’s largest tree - a 75” diameter live oak located in Ybor Heights.


measurements that do not accurately reflect the true size of the tree. Finally, since the measurements are difficult to do, and no complete, public inventory of grand trees is kept, the predictability of whether a tree on a lot will be classified as a “grand” is sometimes difficult to ascertain, which some argue negatively affects real estate values and proposed development in the City of Tampa. However, the City offers courtesy site visits to evaluate grand trees. The cost is $50, and current response times are within one day.

In comparison to other jurisdictions generally, most cities and counties protect trees that are larger than 4” or 5” D.B.H. by requiring a permit for removal, and D.B.H. is the most common form of measuring and classifying trees in codes across the nation. 125 The City of Miami requires a permit for the removal of all trees – even trees on the “prohibited” list. Only palm trees less than 6” D.B.H. and shorter than 16’ are exempt from permit requirements. 126 Miami defines a “specimen” tree as “a tree with any individual trunk or a multiple trunk tree, the sum of the diameter of the trunks having a diameter at breast height (DBH) of 18 inches or greater,” and excluding all fruit trees, palms and any tree in the genus Ficus. 127

Point systems are also a common method for classifying trees that receive elevated protection. The City of Safety Harbor and Sarasota County both use point systems to classify grand trees. 128 Sarasota County uses a very similar system as the City of Tampa; whereas Safety Harbor looks at species, trunk diameter and the overall health and quality of the tree using point-‐based evaluation criteria. 129 In other words, Safety Harbor requires the tree to be of a certain health and quality in order to be labeled as a grand, and the health and quality of the tree are determined by a set evaluation process, but Safety Harbor does not consider height or canopy spread separately from the health and quality evaluation.

In other jurisdictions, grand or specimen trees are broadly defined and thus, more discretion is given to the regulating official to determine which trees receive elevated protection. For example in the City of Orlando, the Parks Official has discretion (subject to approval of City Council in certain situations) to classify trees as “specimen” or “historic” trees, and a public inventory is kept of all trees that receive this elevated status. 130 When a tree is declared a historic-‐specimen tree by resolution of Orlando’s City Council, a citizen must go before the council in order to take down the tree. However, this process is rarely if ever used on private property without the property owner’s consent.

Some jurisdictions will extend elevated protections based on other factors besides the size and quality of the tree; for example, these other factors might include variables such as wildlife habitat or unique ecological importance. In the City of Seattle, WA, elevated protection is given to any “exceptional tree,” which is broadly defined as “a tree or group of trees” with “unique historical, ecological, or aesthetic value” as determined by the Director according to procedures of the Department of Planning and Development. 131 The Department further defines this classification by stating that “exceptional trees” must be of a diameter, which is at least 65% of the largest existing, documented tree of that species within the State of Washington. 132 They also define groups of trees that may be considered exceptional by using the term “Tree Grove,” which is a group of 8 or more trees with a minimum 12” diameter and forming a continuous canopy. 133 Street trees are excluded from the definition of tree groves. A tree within a grove cannot be removed when the removal of that tree might have an adverse effect on other trees within that grove. All exceptional trees must be qualified with a “risk assessment,” which considers crown size, structure, disease, past


maintenance practices, potential damage to existing or future targets, risk mitigation options, and likelihood of survival after the approved construction project is complete. Finally, trees with special wildlife habitat importance may be considered exceptional, such as when a tree has a bald eagle’s nest in it.

Tampa’s code does not consider other factors when determining a tree’s classification, and instead, focuses strictly on the size of the tree. Note, however, that some ecological factors may be considered when determining whether a protected tree may be removed, but the presence of an important ecological asset within a small tree cannot move that tree from “protected” to “grand” status.

City staff recommends revising the measurement guidelines of the code to cite the State of Florida’s guidelines for measuring champion trees. 134 In this document the circumference, height and average crown spread are used to get a total number of points to evaluate a tree. The measurement procedures also contain provisions for how to handle trees with forked limbs, leaning trees, trees on slopes, and other particular circumstances with pictorial diagrams for clarification. These graphics could be included in an updated Technical Manual.

2) Types of Protected Species

With regards to species, most of those interviewed pointed out that the Camphor tree is

classified by the Florida Exotic Pest Plant Council (FLEPPC) as a Category I, exotic-‐invasive. 135 Some interviewees argue that the City should not have elevated protection for exotic-‐invasive species. In addition to the Camphor tree, some interviewees pointed to the Laurel Oak as a problematic species for receiving grand tree status. Those who wish to remove the Laurel Oak from the grand tree list argue that this species of tree reaches the end of its life cycle around the same time that it is getting large enough to be classified as a grand, forcing elevated protection onto a tree that will soon die. Finally, a few stakeholders expressed opposition to the protection of pines and palms, arguing that these trees are not desirable and can easily be replaced.

Contrary to those positions, are those who say that much of the large, developed canopy in South Tampa consists of Camphor trees planted in the early Twentieth Century. Thus, removing them from the grand status could result in a loss of several very large, old trees in those neighborhoods without any replacement requirements. Laurel Oaks, according to the City’s staff foresters, require more maintenance than some other species, but nonetheless, are an important part of Tampa’s urban forest as a native tree. Finally, other interviewees report that palms and pines also provide important habitat for native wildlife in the local ecosystem and thus, warrant protection for ecological concerns.

Since the current permit data does not always refer to species, it is not possible to know exactly how often a permit to remove a Camphor, Laurel Oak, Pine, or Palm tree is granted or denied. A closer look at permit data does show, however, that many of the applicants for tree removal on the basis of dead, dying, diseased or potentially hazardous trees are involving Laurel Oaks as noted in the staff comments section. In one recently reported case, a Laurel Oak was deemed hazardous because the tree fell onto a person’s house and caused significant structural damage. 136 A news report suggested that much of the City’s aging Laurel Oak population is reaching a climax since the lifespan of the tree is 40 – 75 years, and many Laurel Oaks were planted


during development booms in the 1960’s. 137 City staff recommends keeping the Laurel Oak on the grand tree list, but they do acknowledge that poor maintenance practices can result in the tree becoming a nuisance.

Other jurisdictions in Florida vary greatly in the scope of protection afforded to trees based on species. Some jurisdictions will exclude exotic-‐invasive species from protection through a simple reference to the FLEPPC list of nuisance species, for example the City of Orlando. 138 With a simple reference, new nuisance species can be added to the exempt list as updated annually by FLEPPC. Many jurisdictions exclude citrus trees as well, including the City of Sarasota139 and the City of Tampa.140 The City of Jacksonville exempts all palms, except the Cabbage Palm and all pines, except the Long Leaf Pine.141 However, City of Tampa staff note that species exemptions can create enforcement problems.

Most jurisdictions will list the specific species that qualify for elevated “grand tree” protection; for example, the City of Tampa142, the City of St. Petersburg143, and the City of Safety Harbor. 144 Some nearby jurisdictions only protect Live Oaks as a species that qualifies for grand tree status. In the City of Sarasota, a “grand tree” is defined as a tree of the Live Oak species with a D.B.H. of 24” or greater.145 In Hillsborough County, an “historic” tree will include an Oak, Maple, Elm, Sweet Gum, Hickory or Magnolia Tree with over 24” D.B.H., and a rating condition of good health. 146 Trees with this designation are protected in certain districts within the County.147 However, throughout Hillsborough County, the highest level of protection is reserved for “grand oak” trees. A “grand oak” refers to any tree of the Live Oak species, with a D.B.H. of 34” or more and a good health rating on the County’s Tree Condition Evaluation Form. 148

Some jurisdictions, like the City of Orlando, will extend “grand” or “historic” status to any species of tree, except exotic-‐invasive ones as listed by FLEPPC. 149 According to the code, the Parks Official of Orlando has the authority to designate any tree in the city as a specimen or historic tree based on the size, age, historic association, species, or any other unique characteristics of that tree. 150 In order to make such a designation, the Official must conduct a site visit to evaluate the tree and then request the designation in writing. 151 This process can be initiated by the tree’s owner or requested by the Parks Official during a development review. The Parks Official may also request the designation as part of an overall tree protection program, but if this route is taken, the designation must be approved by resolution of the City Council. All designation decisions can be appealed to City Council, and they must be kept on file, so Orlando maintains a Specimen Tree Inventory. Orlando uses a web-‐based program called “Tree Keeper” to maintain this inventory. A look at the data shows that designation of historic specimen trees rarely occurs on private property with only 5 trees currently designated as “historic specimens”; however, there are around 40 historic specimens located in the City’s public parks. 152 Once a tree is designated as a historic specimen, the Parks Official has broad discretion to impose certain requirements on its maintenance and protection and removal of the tree is subject to approval by City Council. 153

None of the jurisdictions researched for this report protect Camphor trees with elevated grand or specimen status. Since so many jurisdictions simply reference FLEPPC’s list of exotic-‐invasive trees as the trees that are to be exempt, the Camphor is most often exempted from any protection throughout Florida being a Category I, exotic-‐invasive tree. 154 The Cities of Clearwater and Zephyrhills both have champion Camphor trees that were protected because of their size and


historical significance, but this protection was accomplished through private agreement and not through the city codes. 155

In addressing the replacement of the many large Camphor trees, there is a potentially analogous situation in the City of Miami. In Miami, there is a large population of mature Banyan and Lofty Fig trees, which are placed on the City’s “prohibited” list. 156 However, the City of Miami requires permits even for the removal of a prohibited tree, and unlike other prohibited trees, the City maintains the replacement requirements when a Banyan or Lofty Fig is removed. In other words, a citizen can always get a free permit to remove a Banyan or Lofty Fig, but replacement trees will be required on site or fees must be paid.

4) Quality Requirements and Other Ecological Considerations

Some of those interviewed cited as a problem the fact that the City of Tampa’s point system

for grand trees is based merely on arbitrary numbers that look only to the size of the tree without regard to the tree’s health or quality and without regard to the tree’s particular ecological importance. The result is that certain trees, which are just under the threshold but arguably have better health and quality, are put on the chopping block in order to protect larger, but lower quality trees that have attained grand status merely because of their size. Another cited example on this issue is regarding the lack of protection for native understory vegetation, such as palmetto stands. In other words, since trees are given priority in protection during development, it is often at the expense and without consideration of other ecologically important plant life. Finally, the tree’s location on site and its proximity to an existing or proposed structure does not factor into its classification, and in certain situations, a better placed tree will be more beneficial to the community in the long run, since it will have more room to grow larger and live longer. A specific case on this issue was a proposed development on East MLK Jr. Boulevard. The owner of the property was seeking approval to build a mixed-‐use addition that would consist of a business and professional office with a warehouse and three units of single-‐family affordable housing. According to the Civil Engineer on the site, there were two large oak trees that were affecting the design. One tree was a 36” D.B.H. grand oak tree that was in poor health according to privately hired arborists, and the other was a 32” diameter protected oak tree that was in fantastic condition. Because of the code’s size-‐based classification, the younger, healthier tree was eligible for removal; whereas, the older unhealthy tree was not. The developer submitted three different designs in order to work around the grand oak tree, and ultimately was left with a design to build only one unit of single-‐family affordable housing as opposed to the original plan for three. According to the Civil Engineer, if they were allowed to take out the grand oak, they could have preserved the younger, healthier tree, and built all three units of affordable housing. This example showcases another issue that interviewees report, where the tree code denies the community of other potential benefits, such as affordable housing, increased economic opportunity, and potential increases in the City’s tax base.

As previously mentioned, the Cities of Safety Harbor and Orlando as well as Hillsborough County and many other jurisdictions include health and quality evaluations as part of the determination of whether or not to protect a tree. Some jurisdictions prescribe the criteria to be


used through the code, and others allow for city staff or city-‐approved, private arborists make the determination based on industry standards.

For example, Hillsborough County’s Tree Condition Evaluation Form determines a sum of points by rating the tree’s roots, trunk, limb/branch structure, twigs and foliage. The conditions of each factor are rated from excellent to poor, and an overall rating of excellent is required for a tree to be considered a Grand Oak. The Hillsborough County permit packet also contains an Affidavit of Code Compliance, which allows a private, certified arborist to testify that the trees identified for removal meet the conditions of the code. This affidavit must be notarized, and it also contains a statement that the arborist assumes legal responsibility for any violations of the Hillsborough County code that might result from improper tree removal. 157

5) Restrictiveness

Some of those interviewed, both industry professionals and city staff members, reported

problems with the lack of flexibility in the code when it comes to removing a tree that has attained grand status. Cited examples include situations where grand trees could not be removed even though they were tearing up sidewalks or driveways; breaking into underground utility lines and sewers; or in some cases, resulting in a homeowner losing insurance coverage because of low-‐hanging, potentially dangerous limbs.

As mentioned above, a grand tree cannot be removed unless it is hazardous, causing structural damage, or denying reasonable use of the property. Denials of reasonable use must be approved by the Variance Review Board, which some report as a difficult process to navigate. The definition of what constitutes “structural damage” is subject to some interpretation, but has not typically been applied to include destruction of underground utility lines in the past, so a homeowner may have to seek a variance to remove the tree in that situation.

Generally speaking however, the City of Tampa grants the vast majority of tree removal permits. In the first five months of 2015, the City issued 345 tree removal permits and blocked the removal of 54 trees. Most of the permits are issued to commercial developers (198), and less than a third of them are grand trees (99). Thus, the data shows that the vast majority of those who apply for a permit are allowed to remove the tree. In the first five months of 2015, only two of those decisions to deny removal were appealed to the VRB for the request of a reasonable use variance to remove a tree. 158 The VRB receives about 3 – 5 of these appeals each year, and they are often accompanied with a variance request for another regulation such as a setback requirement. 159

In 2006, according to an article in the Tampa Tribune, a citizen named Eric Haura almost lost homeowner’s insurance because he was not allowed to trim back a grand tree limb that was hanging over his house. Eventually after months of negotiation, he was able to reach an agreement with both the insurance company and the Parks Department by cabling the limbs of the tree. According to officials at the time, the pruning of large and important limbs such as the one at issue in that case could have destabilized the tree posing serious safety concerns in the future. Officials further stated that insurance companies are usually lay persons when it comes to evaluating the health of trees, so there could be issues in relying on an insurance company’s determinations. Thus, while it is easy to empathize with a homeowner in this situation, it may be difficult to resolve this


issue without simply allowing the removal of more trees, which could have broader implications than merely addressing individuals with rare and difficult circumstances.

6) Notice of Removal and Appeal

The code mandates a public notice via certified mail to all adjacent neighbors when a grand

tree is being removed -‐ even if the tree is being removed because it has been determined to be a hazard. The notice provisions can tie up the removal of a tree if a neighbor protests, and quite often, the neighbor is not aware of the condition of the specific tree for which they are appealing. The result is that the neighbor will appeal to the tree’s removal by protesting in general terms that too many trees are coming down in the City of Tampa, but without addressing the specific case for which she is appealing. A neighbor can only win an appeal by providing substantial and competent evidence that the tree is, in fact, alive and in good condition -‐ contrary to the opinion of the City’s urban foresters who approved the removal permit. Success in these cases is extremely unlikely, and has never happened in the City of Tampa. The notice provision will be waived if city staff deems it to be too dangerous to wait the full 14 days before taking down the tree. Staff reports that the notice provisions can cause unnecessary delay for trees that have been determined as diseased or dead and therefore hazardous, but cannot be removed right away since the notice provisions allow neighbors to have input. It is quite often the case that the neighbors do not follow through with the appeal after talking with the city and being informed as to the condition of the tree.

Compared to other jurisdictions, notice and appeals processes for third parties are ubiquitous. It may be a legal due process requirement, since arguably neighbors are affected by the decision to allow the removal of a tree, even on someone else’s property. Usually there is an appeals process for any citizen that might be aggrieved by the decision of an Official. The City of Miami requires public notice of tree removal, and also requires that relevant homeowner’s associations be notified through certified mail. 160 Miami allows neighbors or the relevant homeowner’s association to appeal any decision regarding a tree permit within 10 days, and the costs of appeal are cheaper for third parties than they are for the actual property owner to appeal. 161 Pinellas County allows any persons “adversely affected by a decision” of the county administrator in the permitting, enforcement or interpretation of the tree code to appeal to county commission. 162

Some jurisdictions have a particular committee that deals with tree code appeals, just as Tampa used to have. For example, the City of Coral Gables has a tree protection appeals committee, which a person must appeal to within 15 days of any decision of the tree preservation agency. 163 Decisions of the tree protection appeals committee can be further appealed to the City Commission.

In 2014 the City of Coral Gables saw a controversial appeal to the permitting of a development that required the trimming of a 45-‐foot tall Live Oak tree in order to build a 2500 sq ft, two-‐story home. 164 The neighbors sought to protect the historic tree they called “Sherman’s Oak” in a campaign that eventually ended up with dozens of residents showing up at a city commission meeting to protest the proposed development. After months of negotiation, and an estimated thousands of dollars in costs to the developer, a compromise was reached to keep the tree from being trimmed by preventing the building of a two-‐story home on the property and allowing the construction of three smaller, one-‐story homes instead. 165 This story exemplifies the importance of


having a mechanism to allow for public input when large, historically significant trees are to be removed.

Interviewees from neighborhood associations and other civic association leaders report that notice provisions are very important to them not only to allow their voices to be heard on the removal of a particular tree, but also as a mechanism for them to be aware of how many trees are being removed in their neighborhoods and for what reasons. City staff recommends incorporating a risk assessment evaluation in the tree removal permits. The result of which could be used to calculate a score, which is posted on the permit. That way, a citizen could look to the risk score on the permit and be informed of the tree’s condition prior to filing an appeal.

7) Consistent Terminology

Certain stakeholders have noted that Florida State law and documents refer to “specimen”,

“historic”, and “champion” trees, and do not use the term “grand” trees. Thus, the City of Tampa’s code terminology lacks consistency with the State. The Florida Urban Forestry Council and the American Forestry Association tracks “champion” trees, and these trees are the largest of their species. 166 There are no State regulations that mandate the preservation of champion, specimen or historic trees; however, Florida state law prevents local jurisdictions from requiring permits or other approvals for tree trimming or tree removal in an established right-‐of-‐way that is being used for electrical transmission lines. 167 The statute does not apply to “specimen or historical” trees. In other words, a local government is preempted from requiring permits for tree removal in electric rights-‐of-‐way, but it is unclear whether the City of Tampa could legally require a permit to trim or remove a “grand” tree that is located in an established electrical utility’s right-‐of-‐way because there is no legal language stating that “grand” trees are equal to “specimen” trees as defined by state statute. However, this is currently not much of an issue since the City of Tampa has a franchise agreement with Tampa Electric Company that governs the maintenance and removal of trees in the established rights of way, and the statute does not affect such agreements.

The City of St. Petersburg’s tree code contains a simple reference to this statute by stating, “the term ‘grand tree’ shall also be considered to be a ‘specimen’ tree as that term is used in Florida Statutes.”168 In the City of Gainesville, the classification of a “Champion” tree, references the Florida Urban Forestry Council’s criteria, and “champion” trees have the highest level of protection. 169 In Gainesville, no champion tree can be removed or relocated without the approval of the Tree Advisory Board.

B) WHAT IS “REASONABLE USE”?

Another term that citizens and city staff have struggled to implement is “reasonable use”. The term comes up many times throughout the City of Tampa’s tree code. First, the code references reasonable use in a statement of intent. “[I]t is not the intent of this chapter to preclude reasonable use of a parcel when the terms of these regulations are inconsistent with the city’s zoning code or to inordinately burden the reasonable use of the property.” 170 Such intent implies that the zoning


code is an important consideration in determining reasonable use, and that inordinate burdens are equivalent to the denial of reasonable use.

The code then goes on to define reasonable use as “actual, present use” of the parcel or “reasonably foreseeable, nonspeculative land uses which are suitable for the property”. 171 These uses or proposed uses must be compatible to adjacent land uses and have the potential to raise the property’s fair market value. In other words, a property owner claiming that he is being denied reasonable use must show that he is actually using the property in that manner already or will do so soon; that his proposed use is compatible with nearby property uses; and that his use will increase the property’s value.

After those elements are established, the appropriate authority must consider ten factors to determine whether reasonable use is being denied to the property owner. 172 The factors are paraphrased as follows:

• A hazard evaluation of the tree based on the code’s hazard evaluation form • The land use classification of the parcel • The zoning of the parcel • Any prior or existing development on the property, including past applicable

regulations • The impact of the grand tree on the buildable area of the parcel, including the effect

of the minimum protective root zone. • Any special circumstances affecting the development of the parcel, such as

topography • Existing uses or development patterns in the neighborhood • Any efforts to redesign so as to save the tree • The tree regulations in effect when the property owner acquired the title • Any other pertinent information

The last factor is a basically catchall provision, which gives the appropriate authority broad

discretion to consider an array of facts that might come into play in any particular situation. 173 The code also allows the board to consider the value of the tree based on the International Society of Aboriculture’s (ISA) valuation as compared to the proposed change in market value from the property owner’s use. 174 None of these factors are dispositive, and none are given more weight than the others. Except that, the reference to zoning regulations in the code’s statement of intent seems to imply that zoning regulations should be given special consideration. The code bestows the authority to determine whether reasonable use is being denied based on the tree’s classification and the classification of the land. For most protected trees, the Natural Resources Coordinator can make a reasonable use determination. The code states that protected trees may be removed when they are “located in an area where a structure or improvement will be placed, or where a structure or improvement currently exists, and, if not removed, will deny reasonable use of the property.” 175 For new construction projects, if a redesign is possible “to provide reasonable use, then such reconfiguration shall be made.” 176 Thus, the Natural Resources Department has broad authority to encourage redesign and reconfiguration of new construction projects in order to preserve protected trees. The Natural Resources Department often exercises


this authority by working with developers to come up with solutions to design problems with the goal of preserving as many trees as possible.

However, for the removal of a grand tree or the removal of protected trees beyond the required retention percentages, the property owner must obtain a variance from the appropriate public body. 177 The Variance Review Board (VRB), the Architectural Review Commission (ARC), and the Barrio Latino Commission (BLC) are charged with hearing variance requests under Chapter 13 depending on the property’s location. 178 But for practical purposes, the VRB hears virtually all variance requests involving trees and Chapter 13. 179

With regard to tree retention requirements, all land in the City of Tampa is classified as “wooded” or “nonwooded”. For nonwooded land, at least 50% of the protected trees on the property must be retained and a variance is required to retain any less. 180 For wooded lands, 50% must be retained on a single or two-‐family lot; 40% must be retained on a multiple-‐family lot; and 25% must be retained on a commercial or industrial lot. Thus, if the property owner wishes to remove more trees than the required retention percentage, they must obtain a variance.

The Natural Resources Department maintains involvement in these cases by presenting its recommendations to the variance board as well. Since the Natural Resources Department works closely with developers and builders in suggesting alternative designs to preserve trees, they will go in front of the board to defend comments or suggestions that were made or answer questions that the Board may have. As a result, variance requests that involve trees are the only variance requests that almost always have a city official presenting her views on the case. In that context, the hearings can be viewed as adversarial proceedings since: the homeowner presents her case to remove the tree; the city presents its case to protect the tree; and the Board adjudicates the outcome. This is not always the scenario, however, since the code mandates that property owners consider an alternative variance request such as a setback or height restriction in order to preserve the tree. 181 In these cases, a property owner may come to an agreement with the City that a setback variance would be appropriate to allow reasonable use of the property and preserve the tree.

In order to encourage this process, the code mandates that all variance applicants consider alternative variances when submitting an application to remove a grand tree based on the denial of reasonable use. 182 Applicants must state whether an alternative variance would allow for reasonable use, and if it would, they must also request for that variance in the same application. The code reiterates that if redesign or reconfiguration would allow for reasonable use without a variance request, then the applicant must redesign and no variance is available. The board will then determine whether or not reasonable use is being denied based on the same ten factors mentioned above. In conjunction with those factors, the code emphasizes that the board will consider the possibilities of granting alternative variances and the implications of alternative designs or uses as presented by the applicant and the City.

The definition of reasonable use in the code has resulted in the following sub-‐issues:

1) Ambiguity


Both City of Tampa staff and members of the VRB report that the language defining reasonable use is unclear and difficult to administer. Some believe that attempts to redesign must be made, and if there is any possible way to redesign around the tree, then reasonable use is not being denied. In other words, if you can build a 600 sq. ft. home on the lot, then you are not being denied reasonable use – even though all of the surrounding homes are 6,000 sq. ft. Others believe that requiring such a redesign would not be reasonable because it does not consider the other listed factors, such as market value, trends in the neighborhood, zoning restrictions, or other relevant information. Further ambiguity is reported in the variance request process for grand trees, since the code is unclear as to whether alternative variance requests must be considered prior to or during the request to remove a tree based on the denial of reasonable use. While it appears that the code requires these requests to be simultaneous, the determination of multiple variances in the same hearing can cause confusion, which might result in a record lacking substantial competent evidence to support the Board’s decision. The VRB has requested clarification from the City Attorney’s office on this matter.

2) Unfair Application

Others have reported that reasonable use determinations are unfairly applied. A local land use lawyer estimated that the total costs of removing a grand tree could cost $10k -‐ $25k when a reasonable use variance is required. These costs include, hiring an arborist to evaluate the tree and potentially testify to the VRB; paying application fees, permit fees, and mitigation costs to the city if replacement trees cannot be planted on site; since some people feel that the process is complicated and adversarial in nature, they believe hiring an attorney is a must. The hiring of an attorney for these cases can cost $2-‐5k. Finally, completely aside from the costs imposed by the regulation, the mere cost of hiring a tree company to take down the tree can reach into several thousands for large trees in urban environments.

Some have expressed concern that these costs imposed by the code are artificial, and could be channeled elsewhere, such as the City’s Tree Trust Fund, through a simpler and more flexible mitigation-‐based code. Citing to these costs, some interviewees report that lower income citizens are more negatively affected by these strict regulations than wealthy or well-‐connected citizens who possess the resources and education to navigate the variance process. They further report that builders of large developments need not request a reasonable use variance to remove a single tree because they resolve their tree removal issues through the planned development rezoning process; thus, the strict and difficult reasonable use variance is most often applied to individual trees on single-‐family, residential lots as opposed to larger developments where more trees might be at risk for removal. Some people argue that this contradicts the purpose of the code.

In one reported case, an 80-‐year-‐old woman seeking to sell her property for redevelopment was unable to do so due to the presence of a grand tree. She contracted with a builder on September 7 for sale, contingent upon the approval to remove the tree. However, since the tree is in healthy condition and is classified as a grand, she cannot obtain removal without obtaining a variance. The closing date on her contract is set for October 29, but the variance review board will not hear her case until December 8. Due to her age and circumstances, she is feeling the urgency, and she is left to worry whether she will be able to obtain the sale at a value that she had previously


anticipated and planned for her retirement. She may be forced to accept a drastically lower price with the buyer assuming responsibility for going through the VRB process.

Finally, some interviewees have argued that situations like this result in declined investment in certain neighborhoods where the profit margins are tighter for redevelopment projects, since the additional costs of development imposed by the tree ordinance discourage investment to those neighborhoods, resulting in decrease property values and stagnant markets. This issue is discussed further under the General Policy Concerns heading.

3) City Council Review

All decisions of the VRB are subject to an appeal to City Council, and the Tampa City Council

has yet to affirm the VRB’s denial of a reasonable use variance. In other words, all appeals to City Council have granted the request to remove the tree, including the controversial removal of a grand tree on Dale Mabry Hwy last year. In that case, a business owner requested a variance to allow for removal of a large grand oak because it was blocking the view of a business sign from the street. 183 The applicant did not submit alternative designs, and the VRB denied the variance, but that decision was later overturned by City Council who empathized with the business owner’s need for visibility on the busy highway. This has led some people to question why the VRB hears these cases at all if they are ultimately going to be granted anyway. However, other interviewees argue that these barriers to removal are important to allow the appropriate consideration of alternative designs and the implications of other variance requests as well as regular and forceful input from the City staff to help guide development in a responsible manner. Such barriers clearly have an effect on whether a developer chooses to redesign or simply remove the tree, and any change in policy should carefully consider the costs and benefits of the many different barriers to removal, both economic and procedural.

Many jurisdictions use the term “reasonable use” when listing considerations to be made in whether or not to grant a permit for tree removal. 184 Often it is a flexible consideration made by the administrating official. For example, in Naples, FL, the code states that a permit for tree removal shall be granted when such removal “is necessary to make reasonable use of the property, and the applicant has demonstrated that no other alternatives exist.” 185 The City of Casselberry, FL allows for the granting of a variance on the basis of a denial of “reasonable use” of the property as specifically mentioned in the City’s tree code. 186 However, unlike the City of Tampa, the Casselberry code does not define “reasonable use” in this context, and only requires that the applicant show a denial of reasonable use and compliance with the intent and purpose of the code. 187 Most commonly, tree codes will contain a simple reference to the same variance process for all parts of the land development code without creating a special variance process for trees. 188

C) WHAT IS “EFFECTIVE REMOVAL”? “Effective removal” is a term that has been used by staff to label a tree that has been

damaged by an action that will ultimately result in the death of the tree. There is no express definition for “effective removal” in the code. Yet, language in the code implies that if a tree has


been pruned too much or some other action has occurred that will inevitably result in the death of the tree, those actions are equivalent to removing the tree, i.e. an “effective removal”.

According to § 27-‐43 Definitions, a “removed tree” is one that “has been irreversibly damaged or destroyed”. To “damage or abuse” a tree means:

“Any action or inaction which does not follow good arboricultural practices as established by the National Arborist Association. Abuse also includes damage inflicted upon roots by machinery, changing the natural grade above the root system or around the trunk, destruction of the natural shape or any action which causes infection, infestation or decay.” Additionally, under the provisions regarding tree trimming permits, “if the permitee

violates [ANSI Pruning Standards] so that the grand tree is damaged to the extent that it is either considered a hazardous tree or its health is endangered, then the permittee shall be required to pay a fine of up to fifteen thousand dollars ($15,000.00) and to plant replacement trees as if the tree had been removed without a permit.” 189 In other words, it is possible for a person to damage or abuse a tree (effectively remove) without cutting it down completely, if that person trims the tree in such a manner that does not comply with best practices or encroaches upon its protective root zone in a manner that inflicts damage.

Based on the application of “effective removal” the following issues are reported:

1) Filling in Lots

Interviewees have reported conflict with other regulations such as stormwater or Southwest Florida Water Management District rules that encourage certain developments to be filled-‐in, raising grades anywhere from 2-‐4 feet. Filling-‐in a property with dirt could potentially crush a tree’s roots, and thus, the city will often consider these trees effectively removed and not count them for preservation credits. In other words, the City considers these trees to be already dead as far as preservation credits are concerned because the fill dirt will likely crush the trees roots and kill the tree in the future. Even though the tree is not dead at the time of calculating the credits, and it’s theoretically possible that the tree may not die for quite some time or never. City staff contends that these trees will become problems later on since they have been irreparably damaged by the fill dirt and death of the tree is inevitable. While some developers argue that if the tree is considered “effectively removed” for preservation credit purposes, they have to plant other additional trees as a result. Therefore, they argue that they should not need a permit to remove these trees later on down the road and have to plant more replacement trees, which would result in double mitigation for the same tree.

2) Tree Wells

In other situations, a grand tree that is required to be preserved is located on a site that is to

be filled, and thus, will require the installation of a “protective dry well” or a “tree well”. Of those interviewed, there are mixed opinions on the efficacy of this technique to preserve a tree. Some


interviewees report that these tree wells are ineffective and expensive. Others say that many of these lots do not need to be filled-‐in to be developed, and that developers who claim that they must fill-‐in a lot are simply not interested in creative design techniques because it is faster and cheaper to fill the lot with dirt and start with a blank slate.

3) Protective Root Zones

Another source of conflict arises when an encroachment into a tree’s “protective root zone” renders it effectively removed. Issues with protective root zones are more thoroughly discussed in the section Space Requirements, but for purposes of “effective removal” issues, minimum buffer zones are required around protected and grand trees. 190 A minimum of 10 feet of space is required around a protected tree and a minimum 20 feet for a grand tree. 191 An exception is allowed for “special construction techniques”, which is not defined, but authority is delegated to the Department to determine whether a proposed technique will be sufficient to protect the tree. Finally, structures with “special circumstances” and pervious pavement surfaces can be within 6 feet of protected trees and within 15 feet of grand trees. Since heavy loads of fill dirt, structural foundations, or ingress and egress of heavy vehicles can crush a tree’s roots, these encroachment actions are likely to result in death or severe damage to the tree. Therefore, per these technical standards, Natural Resources staff has determined that an encroachment into these zones may render a tree damaged or abused to the point of effective removal, and this happens quite often in the construction process.

According to one case, as reported by a developer of property in Tampa’s Rocky Point area, 21 trees were considered effectively removed because the existing parking lot encroached upon the minimum protective radius for existing trees, which had likely been planted around the time the lot was built some 50 years ago. The developer’s privately hired arborist determined that the trees were reasonably healthy, and none of the 21 trees were planned to be removed in the new site plan. But since they were deemed effectively removed by the existing encroachment, they could not be counted towards the 50% tree preservation credits, and they had to be mitigated for as if they were already dead. The consultant working on the site plan went through multiple iterations of plans in order to get the property rezoned and in compliance. According to his calculations, the first plan did not require a tree waiver, since 68 of the 131 trees were going to be saved (52% tree preservation). After adjustments were made to meet other code criteria, the final site plan required 70 of the 131 site trees to be removed, and thus, required a waiver request. If the 21 trees were allowed to be counted, no waiver request would have been necessary. The waiver request was granted anyway, but the developer was left to wonder why trees that are currently alive and healthy according to his arborist are considered effectively removed by the City’s code. The developer also wonders if he will need a permit to actually remove them later, and be required to replace them, since arguably that process has already occurred through the waiver request. City staff responded by saying that the developer was seeking to remove and refinish the existing parking lot. So while the trees and parking lot co-‐existed at the time, the refinishing of the new parking lot surface would have dramatically disturbed the root systems and eventually destroyed the trees.


D) WHAT CONSTITUTES “STRUCTURAL DAMAGE”? A permit may be granted to remove a grand tree when the Natural Resources Coordinator,

or designee “makes a determination that the grand tree has grown or likely will grow within one year in such a manner that it is causing or will cause structural damage to the foundation, structural walls or structural roof of an existing building.” 192 Thus, the code does not specify what type of building it must be and will allow for removal based on the potential of future damage. If a permit is granted to remove a grand tree based on structural damage, demolition of that structure will not be allowed for a period of two years. 193 The property owner must sign a notarized affidavit agreeing to this moratorium and file it with the Clerk of Court for Hillsborough County in order to put future purchasers of the property on notice of the restriction. 194 Property owners may appeal this moratorium to city council if demolition of the structure is necessary for the public’s health safety, and welfare, or if prohibiting demolition would place undue burdens on the owner. The Natural Resources coordinator can approve a demolition permit without city council if it is immediately necessary for public safety. 195

Based on the definition of structural damage, the following sub-‐issues have been reported:

1) Application While the Natural Resources coordinator has the authority to grant or deny permits based

on structural damage, in practice, the Natural Resources Department refers all cases involving a question of structural damage over to a construction inspector for review. Of the construction inspectors interviewed, some reported confusion on the extent of damage or potential damage that is necessary in order for a tree to be removed on the basis of structural damage. According to most of the construction inspectors interviewed, the tree must be causing visible signs of damage to the primary structure. Some inspectors reported that by primary structure they include only a person’s dwelling or place of business and not garages or storage sheds. Another inspector reported granting a removal permit with uncertainty on one occasion because the tree was raising a driveway in such a manner that signs of flood damage were showing in the garage. The inspector felt unsure because typically tree removal permits are not granted on the basis of disturbing a sidewalk or driveway. All construction inspectors interviewed believed that a tree that damaged underground utilities would not qualify for removal based on structural damage unless there was some sort of visible sign of damage to the structure. This problem has been addressed by city staff, which now refers all of the tree removal permits based on structural damage to the chief construction inspector, who handles each case.

2) Homeowner’s Insurance Bind

As mentioned before, there have been cases reported where an insurance company has

denied a property owner homeowner’s insurance based on low hanging tree branches, which were considered hazardous by insurance adjusters but not by city arborists. This is a difficult situation for a homeowner to be in, and stakeholders recommend that the City allow more flexibility for staff


to work with people to find solutions to these problems. Currently, it is the policy of city staff to send a letter to a citizen that reports being in this situation. The letter informs the citizen of the many different options that they have to resolve the conflict, and that the city staff foresters will contact the insurance company to explain the situation on their behalf. Staff foresters report that very often, the insurance company will repeal its request that the citizen remove a large branch, after they explain that removing such a branch actually puts the home in more danger, since it negatively affects the structural integrity of the tree.

E) WHEN IS A TREE CONSIDERED TO BE A “HAZARD” OR “DANGEROUS”?

The code states that it does not intend to prevent the removal of trees that are hazardous.196 Whether or not a tree is hazardous is determined in accordance with the code’s prescribed “tree hazard evaluation form”. 197 Natural Resources staff have the authority to require pruning of the tree instead of removal if that would resolve the hazard.198 Hazardous trees must be physically inspected by an ISA certified or specially trained City staff member as designated by the Natural Resources coordinator. 199 If the permit is granted based on hazard, all abutting property owners and the relevant neighborhood organization must be notified by certified mail, and the permit must be posted in a conspicuous place for 14 days prior to removal of the tree. 200 Unless Natural Resources staff determines that it is an emergency and the tree should be removed immediately for public safety. 201 The staff has the discretion to make this emergency determination, but the tree must be hazardous according to the form. The Tree Hazard Evaluation Form is a point system based on the failure potential, size of defective part, and the type use of the property. 202 Natural Resources Staff are required to issue monthly or quarterly reports that list all of the approved applications to remove hazardous grand trees, including the size, species, and location of the tree. 203

A “dangerous tree” is “any tree determined by the City of Tampa’s Urban Forestry Coordinator, or designee, that meets the highest rating contained in the Tree Hazard Evaluation Form”. 204 A property with a dangerous tree on site is in violation of the city’s code and may be subject to penalties. However, when a code enforcement officer issues a Notice of Violation to a property owner for allowing a dangerous tree to remain on the property, the normal permit fees under Chapter 13 are waived. 205 As a result, citizens who contact the city to inquire about a hazardous tree are often issued a § 19-‐58, Notice of Violation, in order to avoid charging the citizen a $50 tree removal permit fee.

The determination of hazardous and dangerous trees results in the following sub-‐issues:

1) Outdated and Improper Method of Evaluation

According to city staff foresters, the method prescribed by the hazard evaluation form is outdated based on current industry practices. Also, like other aspects of Chapter 13, it is somewhat arbitrarily based on the size of the tree. It is possible for a tree to be dangerous or hazardous without being large, yet the code does not accommodate those situations.


City Staff recommends a shift from the focus of “hazardous” or “dangerous” to one of risk assessment, which is the trend in the industry. A risk assessment evaluation would take into consideration a broader array of factors, and could be used to determine both a tree’s protection classification and the mitigation requirements that are imposed for removing the tree.

2) Forced Assumption of Liability

Some interviewees have argued that when a tree’s roots are causing a potentially dangerous condition, for example, tearing up a sidewalk or driveway, and the City does not allow that person to remove the tree on that basis, the City is forcing that property owner to assume some potential tort liability if that condition were to result in the injury of a guest on the property.


II. PLANTING REQUIREMENTS

Regulations dealing with mitigation requirements and landscape standards may be referred to generally as “planting requirements” since these rules are the only two situations where the City of Tampa requires citizens to install trees and plants or preserve greenspace on private property. Mitigation requirements refer to replacement rules when trees are removed. Minimum landscape standards dictate what types of plants and trees are required to be installed for development projects or what types of landscapes must be maintained on properties based on land use category. If minimum standards cannot be met or if removed trees cannot be replaced on-‐site, then citizens must pay fees into the landscape-‐in-‐lieu or tree trust funds as a condition for obtaining permits. 206

Chapter 13 requires the relocation or replacement of all trees that are permitted to be removed in the City. 207 The replacement or relocation must be done on the same property, on land that is developed pursuant to the same development order, or in the adjacent right-‐of-‐way. 208 If none of those options are possible, then the applicant must make a contribution to the tree trust fund in an amount as determined by City Council Resolution and calculated with the Tree Equivalency Table. 209 The current amount is $300 for every 2” of tree trunk diameter removed, which cannot be replaced in the approved areas. The Tree Equivalency Table prescribes multipliers based on the amount of inches in trunk diameter that are removed. Once a tree is 30” or more in diameter, an inch-‐for-‐inch replacement is required. All palms must be replaced one-‐for-‐one with any other type of palm. All replacement trees must be Nursery Grade No. 1 or better; they must be planted according to industry best practices; they must have a pervious area of at least ten feet radius, and at least seventy-‐five percent of the trees must be of a species that provides similar or better wildlife habitat, shade, erosion control or water purification as the species that was removed. 210 The replacement or relocated trees must survive for six months after they are planted and the landscape architect, engineer, or architect of record for the development must certify that these trees are healthy. 211

The code cites to a species requirement for replacement trees as listed in Schedule C of § 13-‐162. 212 However, Schedule C of § 13-‐162 does not exist anymore because that provision was repealed by Ord. No. 2012-‐121, when certain requirements were moved to Chapter 27. Thus, the citation in 13-‐165 is a scrivener’s error. The result is that it is unclear in the code whether replacement trees must be of any particular species as recommended in Chapter 27.

Dangerous trees are the only trees that may be removed without the requirement to relocate or replace. According to § 19-‐58, when a Notice of Violation is issued for a dangerous tree, the permit requirements of § 13-‐45 are waived and the Notice of Violation acts as the permit to remove the tree. Since the relocation and replacement requirements are part of the conditions of granting a permit under Chapter 13, those requirements are waived for dangerous trees. Natural Resources staff will refer dangerous trees over to the Department of Code Enforcement in order to expedite the removal process since a § 19-‐58 will: waive the 14-‐day-‐stay to allow for appeals, waive the permit fee, and waive the replacement requirements.

There were 15, § 19-‐58 citations issued last year, and 25 issued through May in 2015. This number will likely go up as this process is used more often in favor of the hazardous tree removal


process of Chapter 13. Staff reports that it is often quite unpredictable to determine whether a dying tree may fall, and in certain cases, the 14-‐day stay on tree removal puts homeowners in danger.

Chapter 27 describes the minimum landscape standards based on the type of land use for a development. 213 The Chapter also requires buffer zones between certain properties. A buffer zone is a required greenspace between properties of different land use, and they have certain planting requirements as well. 214 Chapter 27 also creates different sets of design standards based on the district. 215 Finally, Chapter 27 creates certain requirements for developments on ecologically sensitive areas such as wetlands and native upland habitats as well as different landscape standards for overlay districts. 216

The current mitigation requirements and minimum landscape standards results in the following sub-‐issues:

1) Fees and Rough Proportionality

The issue of deciding the proper fee for tree replacement is very contentious. Some of those

interviewed argue that the tree replacement requirements far exceed what is necessary to achieve the City’s goals of no-‐net-‐loss in canopy, and furthermore, these interviewees disagree with the amount of costs for the City’s tree trust fund and landscape-‐in-‐lieu fees. These fees are imposed as conditions for obtaining permits, and can significantly increase the cost of development.

Others report that compared to other jurisdictions with similar programs, Tampa’s tree trust fees are low to moderate. According to some of the most current scientific analysis on the appraised value of trees, some argue that the City should require more tree replacement than what is currently imposed. Finally, some interviewees have argued that property owners should be able to spend an equal amount of money towards other environmental improvements on their own property, rather than giving the money to the city to be spent elsewhere. For example, credits could be given for using pervious surfaces on driveways or other soil improvements that aid in a tree’s growth, and those credits could be applied to offset the costs for tree mitigation.

Another reported issue with mitigation requirements is the potential legal problem. Since there is no diminution of values when factoring the tree trust fees, they may not be fair in all situations, and some argue that this results in a failure to meet the constitutional requirement of rough proportionality under the United States Supreme Court’s Koontz rule. 217 For example, a diseased 37” oak tree requires the same inch-‐for-‐inch replacement as a perfectly healthy oak tree, even though the removal of a diseased tree has less of a negative impact on the community. Some have argued that the current replacement requirements result in much more canopy coverage over time, and thus, it is not proportional to require additional fees. Others argue that it takes decades to replace the removal of a large tree, and that some large trees are simply irreplaceable, such that if the code were truly proportional, fees would be far more expensive.

Some examples of tree removal mitigation fees around the State are as follows:

• In the City of Miami, $1,000 for every 2” that cannot be replaced on the property and $500 for homestead properties. 218


• In Orange County, $106 per inch on non-‐specimen trees and $212 per inch on specimen trees. 219

• In Manatee County, the fees are $345 per replacement tree required of 4”-‐15” D.B.H., with fees increasing up to $1,700 per replacement tree required, over 30” D.B.H. 220

• In the City of Gainesville, the mitigation fee is adjusted based on the size of the land being developed, the condition and quality of the tree, and the appraised value of the removed tree. 221 A cited example states that a healthy, 20” D.B.H. live oak on a standard residential lot could cost around $6,908.

Some developers cited to the City of Naples as having effective planting requirements. It

should be noted that the Naples code only requires mitigation for protected trees that are removed without permits, and thus, there is no mitigation program. The definition of “protected trees” is limited to only trees that “have potential to provide shade over travelways”. 222 In other words, Naples only protects street trees on designated scenic corridors that are managed by the city. The city council designates these corridors through resolution or ordinance by declaring a street as a “designated canopy street”. 223 Mitigation requirements for removal of these trees without a permit is set by the code at $100 per inch and calculated on an inch-‐for-‐inch basis. 224

The City of Naples code does not require a certain amount of tree replacement for protected trees as a condition of granting permits, but the code does state that “[n]o permit shall be granted … where the applicant has failed to design the proposed improvements to minimize impacts on the canopy street zone”. 225 Thus, the department has some discretion to request alternative design proposals, but the code requires tree removal permits to be granted whenever a tree is hazardous, invasive, diseased or weakened, or “unreasonably preventing a development of a lot”, and those permits can be issued with no mitigation required at all. 226

Interviewees with City of Naples staff report that mitigation for the removal of street trees is never required, and there is currently no permit process in place for a citizen to remove a street tree. That means that certain trees managed by the department are not allowed to be removed at all, but others can be removed without stipulation. Naples city staff further report that the city does not regulate tree removal on private property, and the city has not used the inch-‐for-‐inch measurement for unpermitted tree removal, but has opted instead for the $5,000 code enforcement penalty.

However, Naples does have other planting requirements in its minimum landscape standards, which mandate tree planting in some new developments. These planting requirements include 1 tree for every 180 square feet in a commercial zone’s front set back, 227 1 tree for every 30 linear feet in a parking lot, 228 and 1 tree for every 50 linear feet in a commercial property’s buffer zone. 229 Newly built single-‐ and two-‐family dwellings have no minimum tree planting requirements, but they are required to lay sod in areas that are not developed on the lot. 230

Thus, the City of Naples is an example of minimal planting requirements and minimal restrictions on tree removal as compared to other jurisdictions across the state. Interviewees at Naples city staff report that most new developments install four times the minimum landscape requirements any way, and there is currently no push to increase regulation of tree removal on private property.


Interviewees from the arborist’s community report that if the City of Tampa were to more accurately determine mitigation based on current science, the numbers could go up dramatically. According to one of the state’s most cited tree experts, Joe Samnik, almost all of a tree’s ecological benefits are derived from the size of its canopy; thus, in order for the city to have the most accurate determination of replacement value for mitigation, it must be based on canopy size, and not the current measurement of trunk size. In determining the size of the canopy, there are three possible methods: 1) volumetric measurement of the canopy, 2) square footage of the canopy, or 3) square footage of the shadow cast by the canopy. Mr. Samnik recommends the shadow measurement as the most practical.

After determining the size of the canopy that must be replaced, there must be a benchmark for replacement trees. Mr. Samnik recommends a reference to the Florida Grades and Standards for Nursery Plants, Revised Edition. In referencing this document, one could determine the average canopy size of a top grade tree of the same species, and the amount of replacement trees required would be based on this number. For example, a 2” caliper, Florida # 1 grade, live oak tree has an average of 42” of canopy coverage. 231

However, the problem is that while canopy-‐based mitigation is a more accurate way to correctly mitigate for what is lost when a tree is removed, a quick run of the numbers shows that it could be far more expensive than the current mitigation that the city imposes. For example, a healthy live oak tree with a 30” diameter trunk could contain roughly 1,080” in total canopy coverage. Thus, relying on the canopy measurements would require 26, 2” replacement trees – almost double the current requirements.

Mr. Samnik notes that this mitigation cost could be tempered in three ways: 1) adjustable tree trust fees based on fair market value; 2) accounting for a diminution in values for the particular tree to be removed; and 3) stretching out the time for which mitigation must reach parity.

As for fair market value, the City could set the value for replacement trees, or create an adjustable value that assesses current market conditions. One creative solution that Mr. Samnik recommends would be to allow private arborists to determine the fair market value by pricing in the local market and delivering the necessary information to city staff in order to verify accuracy. This would allow landscape designers flexibility in choosing replacement trees from the Tampa Tree Matrix, and then pricing out the cheapest available in the market in order to reduce the costs required to be paid to the tree trust fund, so that they more accurately reflect what actual costs would be if there was room to plant replacement trees on site.

In accounting for the diminution of values, the City would appraise the tree based on its size, species, condition, and location through a risk assessment and health and quality evaluation. Mr. Samnik recommends a reference to the Council of Tree and Landscape Appraisers’ Guide for Plant Appraisal, 9th Edition, 232 which could be used as a guide in determining these values. The diminution would then be deducted from the total amount of required mitigation.

Finally, Mr. Samnik notes that if you require immediate replacement of the entire lost canopy from the time of tree removal, then everyday going forward the City will obtain more canopy. Arguably, this results in a windfall to the City and is not fair to the individual. Additionally, he notes that there is not enough space in the city to actually replace all of the trees that are being removed on that scale; thus, such replacement requirements are impractical. As a solution, he suggests that the City decide how long it must take for mitigation to reach parity. In other words,


the city could require less replacement trees at the time of removal based on the idea that canopy coverage will be equal in value in 3 or 5 or 10 years time. Thus, stretching out the period of time will reduce the amount of replacement trees that would be required immediately to a more manageable number.

2) No Required Mitigation for Invasive Species

According to the City of Tampa’s most recent Tree Canopy Study, around 17% of the City’s 8.7 million trees are Brazilian Pepper. 233 Another 7% of the canopy is the exotic-‐invasive, White Lead tree. These species are exempted from the code’s permit and mitigation requirements. Some have expressed concern that this could result in a substantial loss of tree canopy over time since these trees are required to be removed in new developments, but do not need to be replaced with native species. In addition, since permits are not required for their removal, no mitigation is required at any time when these trees are removed. While these species are widely considered a nuisance, the tree canopy study does report that certain benefits are obtained from them such as erosion control, carbon sequestration and air pollution removal.

Some interviewees recommend requiring the replacement of these nuisance species with natives. A planning-‐district-‐based code could have flexible mitigation requirements based on the results of the tree canopy study allowing for increased mitigation efforts in areas where exotic-‐invasives are prevalent. This proposed planning-‐district-‐based mitigation code could also be flexible based on the goals of canopy coverage for that district as elaborated in the Urban Forest Management Plan. For example, the code could increase or decrease protection or mitigation requirements based on certain thresholds of canopy coverage in planning districts as determined by the City’s tree canopy study. In other words, areas that have less canopy coverage, according to the latest study, would have stronger protection and more mitigation. These areas with very low canopy coverage could be declared environmentally critical areas, justifying the increased regulations. Whereas, areas with better canopy coverage would have less restrictions.

3) No Biodiversity Requirements

Some stakeholders have expressed concern that current landscape standards encourage

monoculture, since there is no clear biodiversity requirement. They argue that a lack of biodiversity could result in problems with the City’s urban forest in the future such as a disease or invasive insects that can wipe out entire tree populations. Other stakeholders expressed concern that biodiversity requirements would restrict the ability to have uniformity in landscape design, which they believed to be more aesthetically pleasing.

Interviewees also report that the planting requirements in the code do not adequately consider the effects of disease or pests, and that may allow developers to plant trees that are particularly susceptible to pathogens which could endanger the city’s canopy. For example, the tree canopy study cites to significant diseases that are currently affecting certain species of palm trees, such as the Texas Phoenix palm decline (TPPD). TPPD spreads through certain types of date palms, and according to the study, has the potential to destroy 80% of all of the palm trees in Tampa. 234


Yet, the code does not mandate developers to check for this disease, nor does it prevent them from replanting palms on sites where a tree with this disease was removed.

4) Lack of Clarity

Some of the industry professionals and the city’s construction inspectors reported that both mitigation requirements and landscape standards lack clarity on certain specifics. Some of the questions that interviewees stated should be addressed more clearly are:

• Where should trees go on a site? • What types of trees are required and where? • How far apart must they be spaced from each other? • What condition and quality must a preserved tree have in order to receive

preservation credits? • Is there a warranty on a code-‐required planting tree, and how is that enforced? • Do lots that are less than one acre in size have any minimum tree retention

requirements? • When a tree’s protective root zone is encroached, can a warranty be put on the tree

in order to obtain a preservation credit? • If a tree is rendered “effectively removed” for purposes of preservation credit, but

the tree is retained in actuality, will a permit for removal be necessary later? If so, does this result in double mitigation for the same tree?

Some interviewees in the industry have stated that they feel like arbitrary decisions are

made due to the lack of clarity on these issues. City staff reports that they conduct weekly staff meetings for the purpose of maintaining consistency on these issues, and the set of criteria that they use is based on ANSI standards, as required by the code. Industry professionals and city staff, both agree that certain aspects of ANSI standards should be more clearly articulated in the code, so that everyone knows the City’s expectations.

5) Punitive in Nature

Some interviewees felt that the mitigation requirements can be punitive. Examples include:

one must still mitigate for a tree that is dying of natural causes or for a hazardous tree. Trees cannot be replaced off-‐site even if there’s an agreement with the off-‐site property owner. Some developers have argued that it is not fair that minimum landscape standards and the mitigation requirements are cumulative because a developer may have to pay fees into both funds when developing on a property that has trees that need to be removed, or a developer may have to pay fees for not meeting the minimum landscape standards even though he is developing an empty lot.

6) Improper Incentives


Some of the construction inspectors interviewed said that since the mitigation requirements mandate on-‐site replacement of removed trees, there is an incentive for developers to plant as many trees on the lot as possible without regard to site suitability or future needs of the tree. Additionally, since citizens are allowed to plant replacement trees in the right-‐of-‐ways, some interviewees argue that people would rather put the tree there, so that the City assumes responsibility for maintenance. Some development industry professionals report that the code encourages developers to transplant or relocate dying or sickly trees in order to receive preservation credits and reduce the amount of mitigation fees.

Many of the construction inspectors that were interviewed did not believe that there was a code requirement for planted trees to be of a certain quality, that planted trees be spaced apart from each other, or that there were any real standards for code planting trees. Thus, there have been reports that so many trees are planted onto sites that developments look like “tree farms”. Other interviewees have stated that since there is no quality evaluation for a “grand tree,” developers might make strange decisions to design around an unhealthy “grand” tree when other, younger and healthier trees on the site may be more suitable for that particular development in the long run. Finally, one expert arborist noted that Tampa’s code is focused on preservation of trees at the expense of other important native vegetation, for example, palmetto stands that often provide gopher tortoise habitats. Since there is no protection or incentives to preserve palmettos, they are often cleared when it might be more ecologically sensible to remove a tree instead.

7) Suburban Design

Some industry professionals say that the landscape standards are designed for a suburban

environment and not the urban, in-‐fill or redevelopment that is currently happening in Tampa. A specific example that was often cited, was the required landscape area for a multi-‐family dwelling without a vehicular use area under § 27-‐285 Sec. 2.

According to that section, for multi-‐family dwellings with a vehicular use area, 350 square feet of green space per dwelling unit is required. The requirement jumps to 750 square feet for multi-‐family dwellings without vehicular use areas. Since “vehicular use area” is defined as “Any area used for the outdoor parking or circulation of domestic or commercial vehicles.” 235 A “podium” style apartment design would fall under the category of not having a vehicular use area. Thus, apartment complexes that include built-‐in parking garages on the lower floors are arguably punished by the requirement of more than twice as much green space than an almost identical apartment complex with an open, traditional parking lot. Some argue that this is contradictory to sustainable building practices, since the parking garage is less of a footprint than the separate, open parking lot.

Additionally, others have reported that the threshold between landscape requirements for buildings 6 stories and higher is arbitrary. These stakeholders report that the changed requirement results in a forced debate among developers and architects on whether they should build an extra story on the building to get to the 6-‐story threshold or pay the additional landscape-‐in-‐lieu fees. One stakeholder reported that keeping the design at 5-‐stories would artificially result in $250,000 in additional costs on one of his particular projects.


8) No Effective Warranty Requirement

Trees planted for mitigation or landscape standards have no requirement to survive or be in good health beyond 6 months, and according to some city staff interviewees, the City does not have the resources to enforce even this minimum requirement. Since the warranty requirement is only 6 months long, and planting requirements mandate trees of 2” D.B.H. in size, all of these required planting trees can simply be removed or die after final inspection without a permit. Sometimes citizens are even told that they can remove these trees without a permit by City officials, which is technically true because only trees with 5” trunks or greater are protected and require a permit to be removed (except for mangroves and cypress trees).

Inspectors report that this problem manifests most often in the construction of pools. According to one inspector, since homeowners will often wait till after the house has been constructed to put in a pool, they will build the house and plant the required trees in the backyard – only to remove them in six months in order to get a pool permit. There is currently no clear enforcement mechanism to prevent this from happening.

9) Errors on Landscape Plans .

Most of the staff interviewed reported that it is a regular occurrence for landscape plans to have mislabeled trees or trees that are not even labeled on the site plan. These errors cause delays and frustration on the part of the client when subsequent field verification results in a later rejection of the plan. It is especially common for trees that are off-‐site to be excluded, since some City staff report that many landscape architects are unaware of the requirement to show off-‐site trees that will be impacted by the development.

10) Rights-of-way Plantings

Some interviewees have argued that since the code allows replacement trees to be planted in the right of way, it actually encourages people to do so. Right-‐of-‐way trees create a number of issues for the City: potential obstruction to views for traffic, eventual problems with TECO trimming when incorrect species are planted, sidewalk and other concrete destruction, and questions of responsibility for maintenance.

11) Relationship to Stormwater Regulations

Some interviewees were concerned that planting and preservation requirements do not adequately consider the relationship to stormwater runoff. They reported that the construction of new homes, which occupy almost the entire buildable area of a small lot, will increase stormwater runoff, causing flood problems for nearby properties.

While the City of Tampa stormwater code does not specifically mention trees, Sec. 21-‐8 states that it is unlawful for a person to “grade, fill, excavate, construct or do any other act affecting the drainage, which results in the alteration of the surface or subsurface drainage patterns to the


detriment of neighboring properties or public rights-‐of-‐way.” 236 Such an act is considered a public nuisance under the code. While interviewees have reported that the removal of trees in neighborhoods has resulted in increased flooding during storm events, no example has been found of the prosecution of an individual under the stormwater nuisance provision for the removal of a tree.

Alternatively, interviewees report that trees can cause flooding in poorly designed infrastructures. When inadequate soil volume or space in a right-‐of-‐way tree well results in the trees pushing up concrete, it can redirect the water in a storm event and cause flooding issues. Interviewees also report tree roots breaking into sewer and drainage systems causing damage to underground infrastructure.

According to a recent report by the Environmental Protection Agency (EPA), trees offer great benefits to the management of stormwater. 237 The report notes that the innate ability of trees to reduce runoff mitigates the cost of stormwater management and is currently underutilized in infrastructure designs. 238

Utilizing the United States Forest Service software suite called i-‐Tree, many jurisdictions have begun taking a closer look at quantifying the benefits of trees in storm water management programs. The State of Indiana estimates $24.1 million in saved costs from the state’s street trees, which divert water from the system. The EPA report also cites to specific case studies that show how proper design of infrastructure to include street trees and allow them to grow to their full size can achieve the most benefits. For example, back in 1985, Charlotte, North Carolina, renovated twelve blocks of street along the city’s two major downtown thoroughfares including a suspended pavement system and installing 170 willow oak trees. The design allowed approximately 1,000 cubic feet of usable soil per tree, which enabled the trees to their full size. In 2009, the average tree at this site was measured at 16” D.B.H. and 44 feet tall. Researchers estimate that these trees have resulted in a 10% reduction in peak flows to the City’s stormwater system. 239

According to the latest City of Tampa Tree Canopy Study, the city saved $10.8 million a year in stormwater costs through the urban forest and its diversion of rainfall. 240 That means that 32% of the overall benefits of trees are realized in stormwater savings.

One interviewee suggested that rather than requiring strict tree replacement upon removal, the City of Tampa could allow a property owner to invest the tree trust fund money in her own property by making soil amendments and infrastructure design changes that help accommodate the trees that are planted on site or already existing on site. If a property owner invests more money into the trees that they do plant, it is less likely that they will want to remove them later. This could result in better stormwater infrastructure and larger tree accommodation.

12) Relationship to Solar Panels and Other Sustainable Development

Practices Some interviewees have reported that the tree code should consider other sustainable

development practices as well when applying mitigation requirements and preservation credits. For example, the use of low impact development standards and the installation of solar panels on a


new development could potentially out weigh the benefits of preserving a tree in particular situations.

There have been reported cases in the City of Tampa where a citizen wishing to install solar panels, has run into conflict with obstructing trees. A revised code could resolve this issue with expanded mitigation options and development credits that encourage the use of solar panels and low impact development standards balanced with the need for tree preservation.


III. SPACE REQUIREMENTS The issue of space is increasingly important in Tampa as the city seeks to redevelop its urban

core. In relation to the tree code, the city regulates space by requiring protective zones around a tree’s root system as well as other zoning setback requirements that mandate certain amounts of open space. How much space should be required around a protected or grand tree, and how does that affect someone’s ability to develop or use their property? As mentioned above in the discussion of the term “effective removal,” protective root zone requirements are established in the Technical Manual. The technical manual states that all protected trees must maintain a minimum ten feet of protected root zone, and grand trees require a minimum twenty feet. 241 As discussed previously under Planting Requirements, Chapter 27 contains provisions that mandate other setbacks, and these rules are cumulative with the protective root zones for trees.

1) Protective Root Zones and Zoning Setbacks

Some stakeholders report that tree buffers will often conflict with zoning regulations such

as entitlements and setbacks. Significant amounts of buildable area are eliminated when a grand tree is located in the center of the lot or at the edge of the zoning restriction setback. Some land developers report that in order to meet tree protective root zone requirements and still comply with the many other land development regulations, they will often redesign a project multiple times and at great expense. Land developers and other industry professionals also report that alternative methods of encroachment into the tree’s protective root zone are not clearly expressed in the code, so it is difficult to know when and how a developer can build closer to a tree in order to preserve the tree and maximize the lot’s buildable area.

2) Arbitrariness

Some industry professionals report that the minimum ten and twenty feet tree buffers often

result in arbitrary decisions in the field. City staff members in the site plan review department reported confusion as to when and why some trees received the minimum 20-‐foot protective zone while others were extended further. Natural Resources staff makes the determination of a protective root zone based on a number of factors concerning the health and protection of the tree, and they report that since every tree and every location is different, a strict distance mandated by the code would not be appropriate for preserving trees, and may result in some trees becoming dangerous after encroachments destroy the tree’s roots.

One industry professional pointed out that palm trees do not normally need ten feet of protective zone, since palms have been shown to endure a lot of root zone impact and remain healthy; however, under the current technical manual, ten feet is required, unless alternative methods of encroachment are approved. The result is a lack of predictability in knowing when a tree buffer zone will extend beyond the technical manual’s minimums or what alternative methods


of encroachment are acceptable to the City. The Urban Forest Management plan has attempted to address this issue by creating a Tree Table Matrix, which articulates specific distances based on the species of the tree. 242

3) Environmentally Critical Areas Some interviewees have argued that a tree’s proximity to an environmentally critical area

such as a wetland or upland habitat should have an affect on the level of protection that a tree gets, or the tree’s classification. While Chapter 27 does include consideration of these factors, sometimes referred to as “Environmentally Critical Areas,” it does not specify when and how trees in these areas receive elevated protection or increased mitigation requirements. However, it should be noted that federal and state regulations come into play when developing in wetland areas.

4) Parking Lot Islands

Some stakeholders have reported that there is a conflict between the space requirements

for parking lot islands, and the tree protective root zones. The amount of space required for a parking lot island is less than what is required for a tree’s protective root zone, so there is often conflict in the field over this issue. The code clearly states in its rules of construction that when two rules conflict, the more strict rule should apply. However, the tree’s protective root zone is part of the technical manual, and not the code. These conflicts can be resolved through adoption of the Tampa Tree Matrix, which gives a list of trees that will fit properly in the parking lot island spaces.

5) Tree Protective Barriers During Construction

Some interviewees report that the tree protective barriers during construction are not enforced adequately. Others report that tree protective barriers during construction can obstruct ingress and egress of worker’s vehicles and present substantial difficulties on smaller lots. Construction inspectors report that enforceability of these protective barriers is difficult in these situations, since most of the lots in Tampa are small.


IV. ENFORCEMENT ISSUES

Many issues with enforcement and administration of the tree code relate back to the ambiguity in defining in key terms, for example the definitions of “effective removal” or “structural damage”. Other issues with enforcement include unauthorized tree removal, malicious destruction of trees as part of an effort to avoid process, bad tree trimming jobs that result in code enforcement issues with homeowners, and efforts to adjust department protocols, so that the appropriate department or official can prosecute cases.

1) Door-to-Door Tree Trimmers

Permits are required for the trimming of a grand tree on private property or the trimming

of branches in the right of way that are greater than 4” in diameter. 243 Essentially, the trimming of all trees in the City must be done in accordance with the American National Standard for Tree Care Operations (ANSI) most current edition. 244 Only a “properly licensed company or person” may trim a grand tree under the permit review criteria. 245 Since the proper license is not defined by code, city staff has interpreted this to mean that anyone with a business license may trim trees in the city, but they must do so according to industry standards.

Interviewees that worked for tree service companies report that unqualified tree trimmers negatively affect legitimate businesses, and put homeowners at risk for fines and physical dangers caused by poorly pruned trees. City staff reports that the number one, most important issue with regard to protecting the urban forest is the activity of unqualified tree trimmers. Cases have been reported where a single, door-‐to-‐door tree trimmer has destroyed all of the trees on entire city blocks by improper pruning that will inevitably kill the trees and put homeowners in danger.

Furthermore, the business of tree trimming is very dangerous. In 2013, OSHA reported over 70 fatalities in tree-‐related work incidents with Florida posting more than any other state. 246 Accidents ranged from the unfortunate tragedy of Gilpedro Rivera-‐Torres of Largo, FL who died via electrocution after striking a power line in February of 2014 247 to the gruesome horror of Hernan Gutierrez who was pulled through a wood chipper while working in Davie, FL in June of 2014. 248

A variety of stakeholders agree that the City of Tampa should analyze ways to encourage homeowners to use licensed arborists and regulate the tree industry, and in fact, both the comprehensive plan and the urban forest management plan require the City to look into this issue.

One potential solution offered to this problem would be to follow the models of Pinellas and Manatee Counties by taking the best management practices class (BMPC) requirement of the fertilizer ordinance and broaden it. When passing its fertilizer ordinance in 2006, 249 Pinellas County went a step further by adding the requirement of a best management practices class for all landscape maintenance companies and their employees, and not just for those who apply fertilizer. 250 Employees and managers in the landscaping industry must attend the class and display a certificate of completion on their vehicle at every jobsite. The class is one-‐time only, lasts for 2.5


hours, and costs $15 to attend. Unlike other BMPC’s throughout the state, the class contains information on proper tree maintenance and pruning techniques.

A Pinellas County staff member reports that they investigate around 100 cases a month of landscapers operating without the certificate, and the requirement gives them some ability to shut down unqualified tree trimmers. Though it should be noted that the City of Tampa has an interlocal agreement with Hillsborough County, and more research is needed to determine whether such regulation of the landscaping industry would comply with that agreement.

Other recommendations include maintaining a registration database for landscaping companies that have ISA certified arborists on staff. The city could use this database to refer citizens to a list of companies with qualified personnel, and/or to fast track the permitting process for companies that use certified arborists on projects. The city could also require that all permits be stamped with an ISA certified arborists seal, and reject site plans without proper seals.

Finally, interviewees from the tree industry have noted that the City should formally support the industry’s efforts to initiate regulation of the tree profession at a statewide level. While sub-‐contractors are generally required to have certain levels of education and to maintain a special license, that is currently not the case for tree industry professionals. As one interviewee aptly noted, you need a special license to cut someone’s hair, but you don’t need a special license to use a chainsaw and cut down the tree hanging over the barbershop.

2) Encouraging Bad Actors

Some stakeholders argued that the code’s restrictiveness encourages bad actors. In other

words, since the code only allows a grand tree to be removed when it is a hazard or causing structural damage, it encourages people to poison or secretively kill trees in order to avoid the reasonable use variance process. Others have said that the code encourages people to plant exotic-‐invasive trees because they are exempt, and thus, can later be removed without permits. Furthermore, these interviewees argue that the code may even encourage people to not plant trees at all since they will have to go through some time-‐consuming process to get them removed later.

One interviewee stated that he thought about planting a cypress tree in his yard, but decided against it since he would need a permit to legally remove the tree the minute that he put it into the ground, and he would no longer be able to develop the land within 10 to 20 feet of the tree, regardless of the tree’s size. Another case was reported of an individual spiking a large grand oak tree with nails in an effort to secretly kill it, and then later get a removal permit on the basis of a hazard.

3) TECO

One of the top complaints from homeowners and civic associations is that Tampa Electric Company improperly prunes trees to the point of making them dangerous. Several homeowners reported that they have nicknamed the electric company: the “TECO butchers” and will call each other to inform and prepare the neighborhood when TECO is coming. City staff must then intervene to attempt and resolve the case. In one reported incident, a homeowner stated that TECO


pruned a tree to the point that it later split in half and collapsed onto his house in Seminole Heights. The homeowner consulted an attorney who informed him that he had no viable recourse, since the case would essentially turn on whether TECO complied with ANSI standards. Such a lawsuit, often called a “battle of the experts,” is expensive and time consuming for an individual to bring, since experts must be consulted and hired to testify. The homeowner reports that the city should have done more to protect him in such a situation.

4) Penalties

Some stakeholders have argued that the penalties for a tree code violation are excessive, citing that they are, indeed, the maximum amount as allowed by Florida state law. Although the code allows for a $15,000 fine for each tree code violation, there has not been a case where such a penalty was levied against a violator for the removal of a single tree.

5) Authority

An issue that has been raised is whether building inspectors or code enforcement officers should be charged with handling tree code issues if they are not certified arborists. Currently, only one code enforcement officer is a certified arborist and while some of the building inspectors have some training in this area, none of the building inspectors are certified arborists. Furthermore, internal stakeholders and external stakeholders have noted that putting Natural Resources within the Department of Planning and Development (DPD) results in conflicting mandates within the department. Since the DPD is charged with facilitating development, while Natural Resources is charged with the preservation of trees. Some have argued that these mandates often conflict, which could create an adversarial atmosphere within the department. However, city staff does not report such an atmosphere.

6) Internal Process and Workflow

Internal and External Stakeholders have pointed out issues that need to be resolved in the City’s permit process and workflow. One example cited, is that the site plan review department may approve a plan, which will later be denied by the natural resources department. City staff contends that this is most often the result of mistakes on landscape plans, which are later verified in the field. Generally speaking, city staff agrees that greater communication is necessary in order to allow for other departments to know what clients have been told in the field and whether administrative decisions have been made in order to increase consistency.


V. GENERAL POLICY CONCERNS AND OTHER LEGAL ISSUES

This final section addresses the miscellaneous and more generalized concerns that were expressed in this review process.

1) Property Rights and Constitutional Concerns

Interviewees, including land use attorneys and industry professionals, have expressed concern over the idea that property rights are over-‐burdened by the City’s current tree regulations. For example, one lawyer has expressed concerns about the constitutionality of the two-‐year moratorium on building demolitions after a grand tree has been removed for causing structural damage to that building. Other attorneys have noted that there may be legal issues with the tree trust fund’s mitigation requirements under the Supreme Court’s exactions and regulatory takings jurisprudence.

2) Overall Tree Canopy vs. Single Tree Focus

There is some debate among several interviewees as to whether the intent and purpose of the code is to preserve individual trees that currently exist on a development site, or to encourage the growth and preservation of the City of Tampa’s tree canopy as a whole. Clarifying this purpose will determine the amount of flexibility that should be allowed under the code. For example, if the focus of the code is the protection of overall canopy, then the City should be more lenient in allowing the removal of trees in areas where the canopy is dense as long as mitigation results in no net loss of City’s canopy generally. On the other hand, if the focus is on preserving individual trees on single sites, then the code should remain restrictive of tree removal, regardless of the potential for mitigation.

3) Pace of Development and Tax Revenue

Some interviewees report that the tree code is the number one obstacle in the way of development in the City of Tampa. Development industry professionals often say that the very first question they ask about a property, when deciding whether to invest in it, is whether or not it has trees. Some developers believe that the presence of a large tree on the property actually reduces the property’s value because of the difficulties of developing around the tree or the costs of both time and money to go through the process of getting the tree removed. These interviewees argue that such costs force parcels to go undeveloped for long periods of time, since investors pass on them.

They further argue that the ultimate result is a loss of tax revenue for the city and even in some cases, blight for communities with large inventories of old, antiquated structures, which end up sitting on the market for too long due to the presence of trees. Finally, some members of the


development community argue that the lack of flexibility encourages them to take their investment elsewhere, like for example, St. Petersburg, where the tree ordinance is not nearly as restrictive as Tampa. Additionally, developers report that the tree ordinance causes unnecessary delays, which can add up to several months of additional time to process permits – a problem that they report does not exist in other nearby jurisdictions.

Alternatively, concerned citizens and neighborhood association leaders report that too many large trees are being removed for the sake of new development. These interviewees believe that allowing the removal of large trees will ultimately hurt real estate values in the long run by destroying one of Tampa’s most attractive natural features. They report that many people move to Tampa because of the large trees and thus, these trees are not only important for the environmental concerns but for the aesthetic and economic ones as well. These interviewees are concerned that more flexible removal rules would result in a substantial loss of large trees and an ultimate reduction in real estate values. The Natural Resources department reports that they receive daily calls from concerned citizens throughout the city that too many trees are coming down in new developments, and the amount of calls is increasing of late.

Generally speaking, it is very difficult to quantify the effects of trees on property values. However, one developer with 25 years experience in the Tampa Bay market reports that when a large tree is in a preferable location, it can improve the sale price by as much as 10%. He also reports that many of his sales are the direct result of the presence of trees on the lot. However, that same developer reports that, alternatively, a poorly located tree can reduce property values as much as $60k due to the increased costs of redevelopment. Depending on the neighborhood, such a decrease in value could make or break a sale.

For example, he reports that a seller in Sunset Park was seeking $400k for a lot, but since the house needed to be torn down, and a large oak tree was on the property, offers were only being made for around $200k. These offers were significantly lower for a neighborhood where prices for lots generally range from $300k -‐ $500k. According to the developer, the value was reduced by the presence of the tree because the city would not permit a two-‐story home with a pool and buyers demand such features in this neighborhood. The cost of removing the tree was around $10k, plus $2,500 in mitigation to the Tree Trust fund, and whatever insurance, taxes, and interest that accrued in the interim. The developer eventually contracted on the property for $355k, but contingent on full approval to remove the tree, which was eventually obtained. After construction, the developer anticipates selling the home at $1.2 million. The developer reports that builders simply pass these costs onto the buyers, so it is virtually impossible to invest in properties located in areas where the average sale price is not high enough to make a profit.

In other words, in areas where the average lot price is under $100k, and a redeveloped home could not possibly sell for more than $300k, it is simply not worth it for developers to invest. Thus, developers argue that poor neighborhoods with the most need for investment capital are being passed over because of these regulations.

4) Brevity and Clarity in the Code

One of the strongest criticisms of Tampa’s tree code is the fact that effective policies are located in so many different places. The scattered code creates a patchwork of regulation that is


difficult to navigate, understand and administer. Furthermore, the city’s codes have not been fully updated to reflect the recommendations of the Urban Forest Management Plan -‐ even though the plan has been adopted via resolution and many of the recommendations have been implemented in practice.

Virtually all of the interviewees that had familiarity with Tampa’s code complained about a general lack of clarity in the language. In sum, there are hundreds of pages of policies and regulations pertaining to trees throughout various parts of Tampa’s comprehensive plan, code chapters, and technical documents, making it extremely difficult to comply with as a law abiding citizen. As a result, many say that the code should be consolidated and shortened, so that it is more manageable and enforceable.

CONCLUSION

Much of these reported issues will be addressed by the implementation of recommendations from both the Economic Competitiveness Committee and the City of Tampa Urban Forest Management Plan. The City should take the necessary steps to implement these recommendations as soon as possible in order to continue efforts to balance the need to protect natural resources with responsible economic development.


LIST OF SOURCES 1 City of Tampa Urban and Community Forestry Grant: Toward the Development of a Strategy for Urban Forest Sustainability, Final Report: March 31, 2009. Available here: http://www.tampagov.net/sites/default/files/planning/files/UCAM-‐2010-‐2012/ucfgrant_final_report_3_31_09.pdf 2 City of Tampa Code § 13-‐9 3 Tampa City Council Resolution No. 2013-‐921 4 City of Tampa Urban Forest Management Plan, Vision Statement, November 2013 at Pg. 10 5 City of Tampa Mayor’s Economic Competiveness Committee, http://www.tampagov.net/mayor/economic-‐competitiveness-‐committee 6 Tampa Open For Business, Report from the Mayor’s Economic Competiveness Committee. City of Tampa, Mayor Bob Buckhorn. February 2012. Available here: http://www.tampagov.net/sites/default/files/mayor/files/ECCFINALREPORT_0.PDF 7 Id. at Pg. 7 8 The consultant and sole author of this report is Jerrod Simpson, J.D. of Western Michigan University Cooley Law School, and B.A. of the University of South Florida. 9 City of Tampa, Ord. No. 192 10 Arbor Day Foundation, Florida Facts, 2015. Available here: http://www.arborday.org/states/state.cfm?State=FL 11 City of Tampa, Ord. No. 987-‐A 12 Id. 13 Id. 14 City of Tampa, Ord. No. 1254-‐A 15 Id. 16 City of Tampa, Ord. Nos. 5670-‐A, 5677-‐A, 5712-‐A 17 “For Beauty – and Breathing”, Tampa Tribune, April 29, 1972. 18 Id. 19 Richard Franklin, “City tree law takes root”, Tampa Bay Times, 1972 20 Id. 21 City of Tampa, Ord. No. 5670-‐A 22 James Manning. Tampa Tribune, “City Gives Protection to Trees”, 1973 23 James Manning. “First City Tree Ordinance Warrants To Be Served”, Tampa Tribune. 7-‐A-‐72 24 Richard Allen, “’Tree Doctor’ Fights Tampa Ordinance”. Tampa Tribune, June 11, 1976 25 David Brown, “Tree law nets fees but not violators”, Tampa Bay Times, October 28, 1974 26 Russ Robinson, “Practicality Saps Life of Tree Law” Tampa Tribune, May 23, 1978 27 Id. 28 Morris Kennedy, “Tree rule draws Chillura’s ire”, Tampa Times, Monday, February 19, 1973 29 .Jim Gressner, “Tree Law Policing Said Too Lenient”. Tampa Tribune, July 19, 1973 30 Id. 31 David Brown, “Tree law nets fees but not violators”, Tampa Bay Times, October 28, 1974 32 Id. 33 City of Tampa, Ord. Nos. 9421-‐A, 9422-‐A, 9423-‐A, 9424-‐A, 9425-‐A 34 City of Tampa, Ord. No 9422-‐A 35 City of Tampa, Ord. No. 9423-‐A 36 Tampa Open for Business, Report from the Mayor’s Economic Competiveness Committee, City of Tampa, Mayor Bob Buckhorn February 2012. 37 City of Tampa, Ord. No. 2012-‐121 38 Tampa Open for Business 39 Id.


40 Arbor Day Foundation Honors Tampa with Tree City USA Recognition and Growth Award, City of Tampa. Available here: http://www.tampagov.net/news/arbor-‐day-‐foundation-‐honors-‐tampa-‐tree-‐city-‐usa%C2%AE-‐recognition-‐growth-‐award 41 City of Tampa, Ord. No. 97-‐34 42 City of Tampa, Ord. No. 99-‐186 43 City of Tampa, Ord. No. 2001-‐90 44 City of Tampa, Ord. No. 2002-‐80 45 City of Tampa, Ord. Nos. 2002-‐161 and 2002-‐162 46 City of Tampa, Ord. No. 2002-‐33 47 City of Tampa, Ord. No. 2004-‐129 48 City of Tampa, Ord. No. 2005-‐255 49 City of Tampa, Ord. No. 2006-‐74 50 FL Stat. § 163.3161 51 Id. 52 City of Tampa Urban and Community Forestry Grant: Toward the Development of a Strategy for Urban Forest Sustainability, Final Report: March 31, 2009. Available here: http://www.tampagov.net/sites/default/files/planning/files/UCAM-‐2010-‐2012/ucfgrant_final_report_3_31_09.pdf 53 Tampa Comprehensive Plan, Hillsborough County City-‐County Planning Commission. Plan Hillsborough. Available here: http://www.planhillsborough.org/tampa-‐comprehensive-‐plan/ 54 City of Tampa Comprehensive Plan, Policy 18.7.6 55 City of Tampa Comprehensive Plan, Policy 19.11.5 56 City of Tampa Comprehensive Plan, Policy 20.2.1 57 Id. 58 City of Tampa Comprehensive Plan, Policy 21.2.1 59 City of Tampa Comprehensive Plan, Chapter 4 -‐ Building Sustainable Neighborhoods, Tree Canopy at pg. 228 60 City of Tampa Comprehensive Plan, Policy 32.3.1 61 City of Tampa Comprehensive Plan, Policy 32.3.2 62 City of Tampa Comprehensive Plan, Policy 32.3.4 63 City of Tampa Comprehensive Plan, Policy 38.2.9 64 City of Tampa Comprehensive Plan, Policy 38.2.12 65 City of Tampa Comprehensive Plan, Policy 38.11.4 66 City of Tampa Comprehensive Plan, Policy 32.3.3 67 City of Tampa Comprehensive Plan, Policy 38.27.1 68 City of Tampa Comprehensive Plan, Policy 38.27.2 69 City of Tampa Comprehensive Plan, Policy 38.27.3 70 City of Tampa Comprehensive Plan, Policy 38.27.4 71 All of the City of Tampa’s code chapters can be found online here: https://www.municode.com/library/fl/tampa 72 City of Tampa Code § 13-‐3 73 City of Tampa Code § 13-‐6 74 City of Tampa Code § 13-‐7(a) 75 City of Tampa Code § 13-‐2 76 City of Tampa Code § 13-‐45(g)-‐(h) 77 City of Tampa Code § 13-‐45 78 City of Tampa Code § 13-‐45(g)(4)-‐(5) 79 City of Tampa Code § 13-‐45(g)(6)a.2-‐5 80 City of Tampa Code § 13-‐45(g)(2)b 81 City of Tampa Code § 13-‐67 82 City of Tampa Code § 13-‐43 83 City of Tampa Code § 13-‐9 84 City of Tampa Code § 13-‐165(d) 85 City of Tampa Code § 27-‐284


86 Id. 87 City of Tampa Code § 27-‐285 88 City of Tampa Code § 27-‐285(e)(2) 89 City of Tampa Code § 16-‐101 90 City of Tampa Code § 16-‐86 91 Id. 92 City of Tampa Code § 16-‐101 93 City of Tampa Code § 19-‐58(a) 94 City of Tampa Code § 19-‐3 95 City of Tampa Code § 19-‐58(b) 96 City of Tampa Ord. No. 2006-‐74 97 Chapter 13, Tree and Landscape Technical Manual at pg. 2 98 Id. pgs 12 -‐ 19 99 City of Tampa, Urban Forest Management Plan, 2013 at pg. 10 100 Id. at pg. 12 101 Id. at 26 and 30 102 Id. 103 Id. at pg. 30 104 Id. at 26 105 Id. at 27 106 Id. 107 Id. 108 Id. at pg. 31 109 Id. at pg. 32 110 Id. at pg. 36 111 Id. 112 Id. at pg 38 113 Id. at pg. 37 114 City of Tampa Code § 13-‐6(a). 115 City of Tampa Code § 13-‐6(b). 116 City of Tampa Code § 13-‐45(g)(3) 117 City of Tampa Code § 13-‐45(g)(2)a. 118 City of Tampa Code § 13-‐45(g)(2)c. 119 City of Tampa Code § 13-‐45(g)(2)b. 120 City of Tampa Code § 13-‐45(g)(6)b. 121 City of Tampa Code § 13-‐45(g)(6)a.2. 122 City of Tampa Code § 13-‐45(g)(6)a.1.(b) 123 City of Tampa Code § 13-‐45(h) 124 City of Tampa Code § 13-‐6. 125 Protecting and Developing the Urban Tree Canopy, A 135-‐City Survey. The United States Conference of Mayors. 2008. http://www.usmayors.org/trees/treefinalreport2008.pdf 126 City of Miami Code § 17-‐4 127 City of Miami Code § 17-‐2 128 City of Safety Harbor Code Sec. 153 and Sarasota County Code Sec. 54-‐586(4). 129 City of Safety Harbor Code Sec. 153.02. 130 City of Orlando Code of Ordinances, § 60.210. 131 Seattle Municipal Code Chapter 25.11 132 City of Seattle Director’s Rule 16-‐2008 133 Id. 134 Florida Champion Tree Measuring Procedures. Revised August 23, 2012. Available here: https://www.freshfromflorida.com/content/download/4571/29196/CTP_measuring_procedures.pdf 135 See Florida Exotic Pest Plant Council’s 2015 List of Invasive Plant Species, Available here: http://www.fleppc.org/list/2015FLEPPCLIST-‐LARGEFORMAT-‐FINAL.pdf; See also Florida Exotic Pest Plant


Council, Identification and Biology of Non-‐Native Plants in Florida’s Natural Areas, Editors: K.A. Langeland and K. Craddock Burks, at Pg. 92-‐93 136 See for example, permit number TRE-‐15-‐0437854 137 Penny Carnathan, “Aging oak trees threaten Tampa neighborhoods”. The Tampa Tribune, July 29, 2009. Updated March 23, 2013 at 4:18 A.M. http://tbo.com/northwest-‐tampa/aging-‐oak-‐trees-‐threaten-‐tampa-‐neighborhoods-‐92421 138 See §§ 60.207 and 60.225(a)2. 139 City of Sarasota Code of Ordinances § VII-‐318 140 City of Tampa Code § 13-‐7 141 City of Jacksonville Code § 25.02a. 142 City of Tampa Code § 13-‐6 143 City of St. Petersburg Code §16.40.150.2.1.A. 144 City of Safety Harbor Code § 153.02 145 City of Sarasota Zoning Code, Sec. II-‐201. 146 Hillsborough County Code, Sec. 3.08.11 and Sec. 3.10.11. 147 Id. 148 Hillsborough County Code, Art. XII, Definitions, Part 12.01.00 149 City of Orlando Code § 60.207 150 City of Orlando Code § 60.210 151 City of Orlando Code § 60.210(c) 152 Orlando Tree Keeper, Available here: http://orlando.mytreekeeper.com, retrieved on June 17, 2015 153 City of Orlando Code § 60.210 154 See for example, City of Vero Beach Code § 72.33 155 Jared Leone, Champion Camphor Grows in Clearwater. Clearwater Patch. May 8, 2013. http://patch.com/florida/clearwater/champion-‐camphor-‐grows-‐in-‐clearwater. See also Geoff Fox, Giant Trees Earn Laurels. Pasco Tribune, October 18, 2008. Updated May 17, 2013 at 11:06 PM. http://tbo.com/news/pasco/2008/oct/18/pa-‐giant-‐trees-‐earn-‐laurels-‐ar-‐109567/. 156 City of Miami Code § 17-‐6 157 Tree Removal Application Packet. Hillsborough County, Florida. (Revised on 05/27/14) Retrieved from http://www.hillsboroughcounty.org/pgm/resources/forms/landdevelopment/treeremovalpacket.pdf 158 VRB 15-‐28 and VRB 15-‐54 and 15-‐55 159 Id. 160 City of Miami Code § 17-‐4. 161 City of Miami Code § 10-‐4 162 Pinellas County Code § 166-‐40 163 City of Coral Gables Code § 82-‐36. 164 Joey Flechas. Coral Gables Neighbors Fighting to Protect Old Oak Tree. Miami Herald, July 8, 2014. http://www.miamiherald.com/news/local/community/miami-‐dade/coral-‐gables/article1974606.html 165 Monique O. Madan. Miami Herald. Tentative Compromise Reached on Coral Gables’ Old Oak Tree. October 28, 2014. http://www.miamiherald.com/news/local/community/miami-‐dade/coral-‐gables/article3420503.html 166 Florida Department of Agriculture and Consumer Services, Florida Champion Trees, Available here: http://www.freshfromflorida.com/Divisions-‐Offices/Florida-‐Forest-‐Service/Our-‐Forests/Florida-‐Champion-‐Trees 167 Fla. Stat. § 163.3209 168 City of St. Petersburg Code § 16.40.150.2.1.C. 169 City of Gainesville Code § 30-‐254. 170 City of Tampa Code § 13-‐45(g)(1). 171 City of Tampa Code § 13-‐45(g)(2)b 172 Id. 173 City of Tampa Code § 13-‐45(g)(2)b.10. 174 Id. 175 City of Tampa Code § 13-‐45(g)(3)2. 176 Id. (emphasis added).


177 City of Tampa Code § 13-‐45(g)(4)-‐(6). 178 City of Tampa Code § 13-‐111. 179 According to members of the various boards, not a single case requesting a variance under Chapter 13 has been heard by the BLC or ARC in the last 5 years or more. 180 City of Tampa Code § 13-‐45(g)(4). 181 City of Tampa Code § 13-‐45(g)(6)b 182 Id. 183 VRB 14-‐76 184 See for example, City of Vero Beach Code § 72.42(d)(7) and City of Casselberry Code § 3-‐14-‐6, and 185 City of Naples Code § 38-‐31(e)(3)c. 186 City of Casselberry Code § 3-‐14. 15 187 Id. 188 See for example, Alachua County Code § 402.157, Lee County Code § 14-‐413, and City of Jacksonville Code § 656.1208(d) 189 City of Tampa Code § 13-‐45(h)(3). 190 Chapter 13, Tree and Landscape Code Technical Manual as adopted by Ordinance 2006-‐74 191 Technical Manual, at pg. 14 and 15 192 City of Tampa Code § 13-‐45(g)(2)c. 193 City of Tampa Code § 13-‐45(g)(2)c.1. 194 Id. 195 City of Tampa Code § 13-‐45(g)(2)c.2. 196 City of Tampa Code § 13-‐45(g). 197 City of Tampa Code § 13-‐45(g)(2) 198 Id. 199 City of Tampa Code § 13-‐45(g)(6)(a) 200 City of Tampa Code § 13-‐45(g)(6)a.2-‐3 201 City of Tampa Code § 13-‐45(g)(6)a.1.(b) 202 City of Tampa Code, Chapter 13, Exhibit I 203 City of Tampa Code § 13-‐45(g)(6)a.6-‐7 204 City of Tampa Code § 19-‐3 205 City of Tampa Code § 19-‐58 206 City of Tampa Code § 16-‐101 and § 16-‐86. 207 City of Tampa Code § 13-‐45(g)(2)e. 208 City of Tampa Code § 13-‐165(b)-‐(d) 209 City of Tampa Code § 13-‐165 Schedule E. 210 City of Tampa Code § 13-‐165(h)(1)-‐(4). 211 City of Tampa Code § 13-‐165(i). 212 City of Tampa Code § 13-‐165(g). 213 City of Tampa Code § 27-‐285. 214 City of Tampa Code § 27-‐284 215 City of Tampa Code, Chapter 27, Division II 216 City of Tampa Code § 27-‐286-‐287 217 Koontz v. St. John’s River Water Management District, 133 S. Ct. 2586 (2013) 218 City of Miami Code, § 17.6.6 219 Orange County, FL, Fee Directory, 2014-‐2015, Available here: http://www.orangecountyfl.net/Portals/0/resource%20library/Open%20Government/FeeDirectory.pdf 220 Manatee County Development Review Fee Schedule Effective October 1, 2014. 221 City of Gainesville Code, § 30-‐254 222 City of Naples Code, § 38-‐103 223 City of Naples Code, § 38-‐105(a) 224 City of Naples Code, § 38-‐111(2) 225 City of Naples Code, § 38-‐106(a) 226 City of Naples Code, § 38-‐106(a)(1)-‐(4) 227 City of Naples Code, § 50-‐74(a)(2)


228 City of Naples Code, § 50-‐74(b)(2) 229 City of Naples Code, § 50-‐74(c)(1)e. 230 City of Naples Code, § 50-‐76(b) 231 Florida Grades and Standards for Nursery Plants, 2015. Florida Department of Agriculture and Consumer Services, at. pg 13, Type One Matrix – Tall & Wide Form 232 As Amended, Since this document is currently under revision 233 City of Tampa 2011 Urban Forest Analysis, The Structure, Composition, Function, and Economic Benefits of Trees and the Urban Forest, September 2013 at pg. 17 234 City of Tampa 2011 Urban Forest Analysis, The Structure, Composition, Function, and Economic Benefits of Trees and the Urban Forest, September 2013 at pg. 22 235 City of Tampa Code § 27-‐43 236 City of Tampa Code § 21-‐7 237 Stormwater to Street Trees: Engineering Urban Forests for Stormwater Management. U.S. Environmental Protection Agency Office of Wetlands, Oceans and Watersheds, Nonpoint Source Control Branch. September 2013. 238 Id. At 5. 239 Id. At 28. 240 City of Tampa 2011 Urban Forest Analysis, The Structure, Composition, Function, and Economic Benefits of Trees and the Urban Forest, September 2013 at pg. 9 241 Chapter 13 Tree and Landscape Code Technical Manual, Pg. 14 and 15, adopted by Ord. No. 2006-‐74 242 City of Tampa Urban Forest Management Plan, Tree Table Matrix 243 City of Tampa Code § 13-‐45(a)(3)-‐(4) 244 Id. 245 City of Tampa Code § 13-‐45(h)(1). 246 Federal And State Summaries, FY14, Fatalities and Catastrophes to Date, OSHA, Retrieved on May 12, 2015 from: https://www.osha.gov/dep/fatcat/fy14_federal-‐state_summaries.pdf 247 Colleen Wright, “Police Identify Man Who Was Electrocuted”, Tampa Bay Times, Monday, February 10, 2014, 10:17 a.m., Retrieved from: http://pets.tampabay.com/news/publicsafety/accidents/police-‐identify-‐man-‐who-‐was-‐electrocuted/2164879 on May 12, 2015 248 Emily Miller, Mike Clary, and Ariel Barkhurst, “Police ID Man killed in Davie wood chipper”, Sun-‐Sentinel, June 24, 2014, Retrieved from http://articles.sun-‐sentinel.com/2014-‐06-‐24/news/fl-‐davie-‐wood-‐chipper-‐death-‐20140623_1_wood-‐chipper-‐police-‐id-‐man-‐dale-‐engle on May 12, 2015 249 Ord. No. 10-‐06 250 Pinellas County Code § 58-‐481

A Review of Tampa's Tree Regulations

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