Wednesday, August 07, 2019

CHAPTER 2019-155: Tree-killer Law loophole must be reversed -- PZB Seeks Options, Opinions

St. Augustine Planning and Zoning Board members unanimously agreed August 6, 2019 to seek research and a state attorney general opinion on the  new Tree-killer Law, Chapter 2019-155, which defers to any 'ole arborist "determination that a tree presents a danger to persons or property."  This is legislative delegation "run riot."

St. Augustine wrote that "an unjust law is no law at all."  Thus, the St. Augustine PZB wants to know about the interpretation and constitutionality of Chapter 2019-155, which demands that local governments defer to private property owner-employed arborists.

This Colgate Invisible Shield for any 'ole tree-killing with any 'ole arborist as alchemist/testaliar, is indefensible and must be ended at once.  It violates the non delegation doctrine, ceding decisionmaking under local codes to hired hand tree killers.

As Justice Benjamin Cardozo wrote, concurring in A.L.A. Schecter Poultry Co. v. United States, 295 U.S. 495 (1935).  "This is delegation running riot. No such plenitude of power is susceptible of transfer."  Justice Cardozo and fellow justices struck down the National Industrial Recovery Act. 

The Court condemned delegation of government power to trade associations, and the notion that laws for "betterment of business may be done by the President upon the recommendation of a trade association by calling it a code. This is delegation running riot. No such plenitude of power is susceptible of transfer. The statute, however, aims at nothing less, as one can learn both from its terms and from the administrative practice under it. Nothing less is aimed at by the code now submitted to our scrutiny.

Here's the unjust law du jour:
CHAPTER 2019-155
Committee Substitute for House Bill No. 1159
An act relating to private property rights; creating s. 163.045, F.S.; prohibiting local governments from requiring notices, applications, approvals, permits, fees, or mitigation for the pruning, trimming, or removal of trees on residential property if a property owner obtains specified documentation; prohibiting local governments from requiring property owners to replant such trees; providing an exception for mangrove protection actions; amending s. 163.3209, F.S.; deleting a provision that authorizes electric utilities to perform certain right-of-way tree maintenance only if a property owner has received local government approval; creating s. 70.002, F.S.; creating a Property Owner Bill of Rights; requiring county property appraisers to provide specified informa- tion on their websites; providing an effective date.
Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 163.045, Florida Statutes, is created to read: 163.045 Tree pruning, trimming, or removal on residential property.

(1) A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property.
(2) A local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section.
(3) This section does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to ss. 403.9321-403.9333.

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