DISCUSSION ITEM
SPONSOR: City Council President Ann Hill
SUBJECT:
title
RULING IN VICKERY V. CITY OF PENSACOLA (NORTH SPRING STREET HERITAGE OAK) - REQUEST FOR REHEARING
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SUMMARY:
The First District Court of Appeal in a divided panel ruled in favor of the Vickerys, who intend to remove a heritage live oak on the northwest corner of their vacant lot at 605 N. Spring Street. The injunction that has protected the tree since 2019 will be dissolved unless it is possible to have the decision reversed. Once the injunction is dissolved, the Vickerys may destroy the tree.
The City is permitted under the Rules of Appellate Procedure to file a motion for rehearing.
This item seeks to discuss a potential motion for rehearing, which would be due on March 3, 2022. A potential basis would be to argue that the First District Court of Appeal overlooked that the City was aware of the allegation that the tree was unhealthy and had itself evaluated the tree prior to denying the building permit. Further, the City would argue that the First District Court of Appeal overlooked the significance of the property owners’ failure to follow the ordinance that requires a reasonable alternative to a site plan to preserve a healthy tree. The tree remained healthy before and after the Building Official’s decision; however, the Vickerys relied on the mistaken belief that the new statute preempted the City’s ability to preserve healthy heritage trees through reasonable alterations of site plans for improvements. No evidence was presented that this was not a reasonable request of the City, and no legal argument supports the conclusion that the new statute preempts Section 12-6-6(2)b.3 of the Code of Ordinances. Additionally, the City could rely on the dissenting judge’s position on the general rules of statutory construction to argue that the First District Court of Appeal has incorrectly applied Section 163.045, Florida Statutes. Allowing the injunction to remain while the merits of the declaratory judgment action can be heard by the trial court below would have been a more correct ruling based on the most reasonable construction of the statute.
PRIOR ACTION:
February 16, 2022 - First District Court of Appeals released its decision in Vickery v. City of Pensacola.
Procedural Background:
In June 2019, the Building Official denied the Vickerys approval of a site plan that could have been reasonably altered to save a heritage tree. In July 2019, the City was notified of the Vickerys’ intent to remove a heritage oak tree based on a letter from an ISA-certified arborist and upon a newly enacted Florida statute, Section 163.045, which allows a property owner to remove a dangerous tree without a permit.
To protect the tree, which was healthy, the City filed an action for declaratory judgment seeking a determination that section 163.045(a), Florida Statutes, did not prohibit the City from enforcing the local code provisions requiring the Vickerys to make a reasonable alteration to their design for a single-family home that would preserve a healthy heritage tree. The City obtained an ex parte injunction prohibiting the removal of the tree.
The Vickerys moved to dissolve the injunction; the court denied the Vickerys motion after evidence showed the Vickerys’ arborist agreed the tree was healthy.
The Vickerys appealed to the First District Court of Appeal.
STAFF CONTACT:
Don Kraher, Council Executive
ATTACHMENTS:
1) Order on Appeal in Vickery
PRESENTATION: No