Florida Tree Removal Laws Overview
An overview of Florida tree removal laws starts with the most basic principle of all property ownership, the owner of real property owns everything on the real property, including trees. While the owner of property generally is free to remove anything on the real property, in some instances that is not permitted.
The State of Florida requires a permit for the removal of some trees, including certain types of oak trees in designated communities and areas. For instance, Florida Statute §163.045, commonly referred to as the Urban Forestry Act, generally prohibits oaks from being removed without a permit. Oak tree protection has been at the forefront of the legislative agenda for the past several years in Florida. Due to the proliferation of the Southern Red Cedar Borer, a native beetle pest, the legislature relaxed oak restrictions in 2016, allowing certain oaks to be removed without a permit.
Further modifications took effect in 2021, permitting oak trees to be removed without a permit when oak constriction is caused by vertical cracking. Codifying the statutory changes into your governing documents has proven to be challenging. Some HOAs and COAs have attempted to change their documents, even going so far as to seek declaratory judgments, which courts are inclined to reserve for exceptional circumstances. Most tree restrictions are contained in community association documents and consistent with the statutory requirements, it may not be necessary to amend the documents to incorporate the 2021 changes. In any event , the statutory changes should be followed as guidance.
While oak restriction changes were being debated, other species were no longer protected, providing additional information for owners of real property in Florida. For example, Florida’s Tropical Sod webworm, the Palm Leaf Beetle and the Lime Tree Midge were removed from the list of protected pest in 2016. This is significant because often association covenants require the maintenance and upkeep of common areas, including trees, as well as certain parts of the exterior of a home including the yard.
Whether trees are being removed for planned development, new construction or removal of diseased and broken trees it is important to understand the classification of the trees, the general rules and community restrictions governing the removal of trees. In 2015, the Florida legislature passed a law preventing penalty enforcement for minor tree trimming without a permit on single family lots or residential vacant lots. Other types of lots may be governed by local ordinances. The law generally allows any trimming that: (1) Removes dead branches; (2) Is necessary to meet applicable utility clearance requirements; or (3) Maintains the health, safety, appearance or value of the vegetation.
Understanding the regulatory structure assists real property owners with maximizing their investment. Knowledgeable and effective property managers will know to be on the lookout for developments that may impact and assist community associations in keeping abreast of changes.
When Do You Need a Permit to Remove an Oak Tree?
Unless the oak tree is completely dead and for undisputed reasons, a removal permit is necessary for all oaks. In rare circumstances does a permit not need to be obtained to remove oaks. The Florida Law requires property owners to obtain written authorization prior to removing a listed tree unless: – The removal is necessary to comply with governmental regulation (any state agency, local government, or relevant governmental entity) on economically viable use of the land; or – Trees, shrubs, and palms may be removed without a permit in order to maintain the residential appearance of the property, control access to waterways, or protect adjacent structures from encroaching vegetation; – The tree must measure at least 30 plus inches of circumference as measured 4 feet above grade; – and up to five trees per individual lot or 5% of the designated lot (whichever is less) may be removed; and – The tree must be presently damaged so as to jeopardize the safety and welfare of persons or property. In the rare event a permit is not needed for oak removal more than five trees (from the same project); F.S. Section 163.045, states: "Unless exempt under subsection (6), any property owner or agent, prior to cutting down and/or removing a regulated tree or tree canopy on property shall first seek written authorization from the local government. The local government shall provide for a 30-day period after receipt of a request for such authorization in which to provide its response." Tree mitigation is usually imposed during the permit application process. These measures require that for every large tree that is removed because of a construction project, the property owner must replant a smaller tree. Naturally, which trees are replaced is determined by the local law. The size of the required replacement trees will depend on the size of the tree that was removed. Notably, there are no mitigation measures for oak tree removal when it is for purposes of construction projects.
The Importance of Local Ordinances
When considering the removal of oak trees in Florida, it is vital for property owners to be mindful of local ordinances enacted by cities and counties. Such rules can impose additional requirements and restrictions over and above those provided for in Florida law. Thus, the potential pitfalls for noncompliance are that much greater, as local requirements can vary wildly among various local municipal entities.
In general, a municipality or county may regulate the removal of trees on any parcel of land located within its political boundaries. This includes properties located outside of municipal service areas. Such local regulations may actually affect whether F.S. 581.184(5) is applicable to the removal of oak trees. Unfortunately, ignorance of these local rules can create liabilities, as the noncompliant removal of an oak tree on your property could generate a significant violation of local law.
Residential communities may have additional restrictions. Homeowners’ associations often impose conditions on the conduct of homeowners, including those that govern the removal of trees from properties within the community. Typically, such associations have their own rules and procedures governing the removal of oak trees from member properties. Again, some communities require a permit to be issued even if the F.S. 581.184 (5) exemption is applicable to the proposed removal of an oak tree from a property.
This type of burdensome requirement is not unique to communities governed by homeowners’ associations. Chapters 720 and 718, F.S., governing such communities, are not the exclusive sources of common-interest community regulations that may apply to the removal of oak trees. A variety of other Florida statutes and common law can apply to a lot in a common-interest community. Any one of these may contain restrictions affecting the removal of oak trees on the property of a member.
A property owner thinks she has complied with F.S. 581.184(5). However, when her homeowners’ association requires her to seek a permit for the removal of her oak tree, she must immediately comply. The act of removing an oak tree before applying for and obtaining such a permit is a violation of the association’s rules (and probably isn’t covered by the F.S. 581.184(5) exemption).
The lesson here is that property owners and their contractors alike must do their homework before beginning the removal of an oak tree. Any pitfall lurking in the language of Florida law or locally promulgated rules could be very costly to discover in hindsight.
Obtaining a Tree Removal Permit
Depending upon the height of the tree, municipalities allow for two different applications. A tree under 18 ft. will require a "tree determination application" and anything over 18 ft. will require a "tree removal permit application." There is also a minor variation in the applications between certain municipalities. In Craig’s experience, many of the municipalities in Florida will give you the wrong form so make sure to look at your particular application to determine whether it is a tree determination application or a tree removal permit application.
A typical tree determination application will ask that you do not remove the tree until the application is reviewed by the municipality. The municipality will then send out a representative to inspect whether the tree can be removed. At that time, if the tree is healthy and over the allowed height the city will usually grant the permit and waive the 60-day waiting period to remove the tree (however, you cannot remove the tree until the city contacts you). Craig has had multiple experiences where the municipality will require you to submit a tree mitigation fee. This fee varies in amount. It is used mostly to address the loss of oxygen by replacing existing trees on public property.
Once the tree removal permit application is submitted a sign is posted to the property with a number. The number is then scribbled on the sign and within 2-4 weeks the tree is removed. Like the tree determination application the tree removal permit application is sent to the municipality to be reviewed. The municipality (or its surveyor) will complete an inspection of the tree to see whether it should be removed. The inspection is done immediately after the application is submitted. The tree removal permit application will also ask that you do not remove the tree until the application is reviewed by the municipality. The municipality will process the tree removal permit application and then mail you a permit or request more documentation. Typically, cities require a mitigation fee to be paid at the time of the application for any tree over 14 ft. The mitigation fee is used to replenish the tropical foliage on public property. Most people do not realize that mitigation fee’s are tax deductible on your local property taxes. Craig has witnessed that people in neighborhoods are almost always upset with tree trimming and removal without a permit. Craig has spent years helping and coordinating with his neighbors to have city officials, city surveyors, and arborists help his neighborhood receive permits and clean up the trees along a canal.
The Consequences of Illegal Oak Tree Removal
When an oak tree is removed without following the proper legal procedures set out in the Miami-Dade County Code and/or applicable state statutes, it can result in significant financial consequences for the property owner. Both the City of Miami and Miami-Dade County have rigorous tree-trimming and tree-removal regulations and penalties in place to encourage adherence to local ordinances and to protect the environment.
Miami-Dade County Municipal Code
Section 22-19 of the municipal code states that the lawful removal of a tree requires a permit obtained by the property owner. Penalties for the unlawful removal of a tree are significant, often up to $15,000.
Section 24-20 of the municipal code defines the term "specified or otherwise protected trees" to include oak, avocado, camphor, cedar, ceiba, chanella, crape myrtle, eucalyptus, ficus, gumbo limbo, mahogany, mango, mahua, mona, pepper, pine, sabal palm, rubber, silk , stopper and tamarind.
Miami-Dade’s municipal code further states that penalties for violating regulations concerning tree removal include:
• Criminal fines
• An order from the court to the violator to replace the removed tree with a tree or trees of a comparable kind, size and condition, or of a size and kind acceptable to the enforcement agency
• If ordered by the enforcement agency, the violator shall pay the cost to replace the removed tree or trees
• The court may also order restitution up to three times the value of the removed tree or trees as determined by the International Society of Arboriculture (I.S.A.) "Guide for Plant Appraisal."
City of Miami Ordinance
Likewise, the City of Miami’s Municipal Ordinance at Sec. 39-16.9 states that violations of this ordinance trigger a $5,000 fine for removal of a protected tree and $15,000 if the tree is located in an environmentally sensitive area. The city’s ordinance prohibits a person from removing any tree in designated areas, including parks, the Florida Keys, and the Lake Belleview area.
Considerations and Responsibilities for the Environment
Prior to the 2012 amendment to the Florida Local Government Comprehensive Planning and Land Development Regulation Act ("The Growth Management Act"), Florida law was very specific as to how oak trees were to be removed. The law not only required permits, but maintenance of sufficient oak tree canopy. The Growth Management Act required homeowners to "replace" an oak tree with another oak tree when less than 30 percent of the canopy was destroyed, or every time an oak tree was removed from the property. If the homeowner had a single oak tree and wanted to remove it, they were forced to replace it with anywhere from one to two oak trees in its place. As a result, oak tree were being replaced so quickly, some municipalities were concerned this would lead to a future loss of oak trees in the area.
As a result of the concerns, local municipalities passed the local oak tree ordinances to address these issues. For instance, the City of Tampa has enacted the following regulations:
Each of these regulations encourages the use of the oak tree ordinance in accordance with City Ordinance No. 2009-55, which explains that any oak tree greater than 16 inches in diameter cannot be removed without City authorization.
Almost all local oak tree ordinances contain a list of environmental benefits that oak trees provide to a particular community. They also explain that in order to protect public health and safety, trees can be removed only in accordance with an approved permit. These ordinances carry stringent rules prohibiting the removal of oak trees, as well as providing for fines and penalties for violations of the ordinance.
There are several oak tree ordinances found in the statutes and local ordinances enacted in Florida. Some argue that these statutes and ordinances are overly protective of oak trees, especially given Florida is a low-lying peninsula along the Gulf of Mexico, and due to hurricanes, flooding, and storm surges, oak trees will eventually die or be destroyed. Opponents of such laws argue that the extensive list of benefits provided by oak trees to the environment do not outweigh the need for the trees to be removed.
After reviewing different local oak tree ordinances and case law interpreting these ordinances, it seems clear that the legislation is pro-oak tree ya, so even if it is not your intention to destroy the trees, the fact that your lawn mower may bite into a root can sometimes have disastrous consequences. Moreover, these regulations do specify how a homeowner must protect oak trees from various causes of destruction. If the homeowner fails to do so, and damage occurs, the homeowner may be liable for the destruction. Before anyone even considers removing or altering an oak tree in compliance with the ordinance, the costs to be taken into account include consultation with an arborist, tree trimming, and replanting.
If you are thinking about removing an oak tree from your property, it is important to contact an attorney experienced in land use and environmental matters.
Recent Changes in Florida Tree Removal Laws
As of July 1, 2021, Chapter 589.20(4) was amended to provide that: "Nothing in this paragraph prohibits the removal of a tree by a utility if the utility has provided reasonable notice to the property owner and allowed the owner an opportunity to remove the tree at the owner’s expense as provided in paragraph (a)." Furthermore, subsection (1)(d) of section 590.02(1)(d) was repealed by HB 735.
Additionally , recent legislation may impact whether your company will have an exception for oak trees on your customer’s premises. As a property owner, you should always consult with the company removing your tree in order to verify what exceptions are applicable to you.
For example, Florida Statute 589.20(2) provides an exemption if the tree is dead, diseased, or infested. The safety of your utility company’s employees as well as bystanders may also provide an exemption to your company.