Sarasota Herald Tribune
By Zac Anderson
Posted Jan 7, 2018 at 12:00 PM
After cutting down a tree without a permit in September as Hurricane Irma approached, Sarasota real estate investor Marc Pelletz sat in a small conference room at Sarasota City Hall one recent morning and listened to his restitution options.
Pelletz could pay a steep fine — past penalties have been in the range of $20,000 to $30,000, the magistrate noted — or plant a similar tree as a replacement, preferably on the same property where the tree was cut down.
The only problem: Pelletz doesn’t own the property anymore. So he was engaged in a complicated triangulation with the city and the new property owner. First he had to get the new owner to agree to the tree planting. Then he had to select an appropriate tree from the city’s list. Then he had to ensure the tree lived for at least a year.
“This is a mess, this whole thing is a mess,” Pelletz said as he spoke with a city official.
Pelletz didn’t dispute that he violated the city’s ordinance. But the punishment didn’t fit the crime, he said, especially since the tree in question was threatening the house, Hurricane Irma was approaching and — Pelletz claims city staff told him — the tree likely would have been approved for removal if he had gone through the proper channels and secured a permit.
Cases similar to Pelletz’s situation have been cited by state Sen. Greg Steube, who has filed legislation aimed at repealing every municipal tree protection ordinance in the state. The bill will be considered in the two-month legislative session that kicks off Tuesday.
And it’s not just tree regulations that have Steube, R-Sarasota, and other lawmakers miffed. In recent years state leaders have accused local officials of going overboard in regulating everything from guns to lawn fertilizer to small businesses.
In addition to his tree bill, Steube also has filed bills this year preempting local governments from banning “back-in” parking at public garages and regulating vacation rentals. Florida lawmakers are considering a host of other provisions aimed at reining in local government authority, from legislation punishing so-called “sanctuary” cities and counties that deviate from federal immigration enforcement requirements to a bill banning red-light cameras.
Local governments are fighting back, accusing the Legislature of meddling in issues that are best left to local communities and forsaking their conservative principles by taking authority away from elected leaders who are closer to the people.
The Florida League of Cities is working to kill at least nine preemption bills that the group opposes this session.
The preemption battle in Florida is part of a national trend.
In 2015, Texas banned municipalities from prohibiting fracking for oil and natural gas. Last year Idaho banned local governments from enacting their own minimum wage laws, something Florida has done since 2003. Groups tracking preemption say dozens of laws have been passed in recent years to handcuff local governments, many of them with similar language drafted by conservative advocacy groups.
Often it is Republican legislators wresting control from more liberal city and county leaders, although not always. California’s Democratic-controlled Legislature passed preemption legislation this year aimed at promoting affordable housing and combating resistance to new development in some communities.
“I don’t think there’s any question that it’s more acute right now,” Florida Association of Counties spokeswoman Cragin Mosteller said of the preemption push. “We’re seeing a national discussion on this idea of home rule and preemption. We’re seeing agenda driven policy groups making the issue of preemption a priority for them.”
Florida’s GOP-controlled Legislature has been active on the preemption front. In the last few years Florida has passed laws creating tough punishments for local governments that adopt gun restrictions, limited the ability of municipalities to regulate vacation rentals and prohibiting local bans on plastic bags.
Critics argue that many of the preemption efforts place financial gain above community concerns and are being driven by corporate interests.
Vacation rental companies have chafed against local rules limiting rentals. Developers are some of the leading critics of local tree ordinances. Businesses worry about the bottom line impact of minimum wage laws.
“It’s difficult for me to grasp why it’s happening unless you look at the economics,” said Anna Maria Mayor Dan Murphy. “The old saying, ‘follow the money,’ maybe that’s where it’s at. (Corporations) can afford the lobbyists, they can afford the huge contributions. The city can’t, the average resident can’t.”
Murphy’s island city is among three beachfront communities in Manatee County where a surge in vacation rentals has generated a backlash among residents concerned about noise, trash and other issues. Similar concerns have popped up around the state, leading to increased interest in regulating rentals.
State lawmakers stepped in on the side of rental owners in 2011 and banned local governments from regulating vacation rentals. The state preemption was partially rolled back in 2014.
Anna Maria subsequently adopted an ordinance placing new restrictions on vacation rentals, including tying the number of people who can stay in a rental house to the number of bedrooms and instituting a requirement that every rental have a local representative available to respond to community complaints.
Steube filed a bill last year that would have repealed Anna Maria’s ordinance — and any other vacation rental ordinance adopted after 2011 — and reverted back to fully preempting vacation rental regulation to the state. It failed, but Steube is sponsoring similar legislation for the 2018 session.
Rental companies such as Airbnb and HomeAway have been lobbying for the legislation.
“It was a responsible thing for the state to do to step in and preserve the rights of property owners,” said Phil Minardi, director of policy communications for Expedia Inc., which owns HomeAway.
Since the 2011 law was partially repealed, Minardi said cities and counties have pushed a range of rental restrictions he described as overly restrictive.
Steube’s tree ordinance also has strong support from business interests, namely builders and developers who chafe against some of the tree protections.
But Steube said his opposition to vacation rental regulations and tree ordinances all comes down to his staunch belief in the supremacy of private property rights. He believes city and county leaders have gone too far in restricting these rights.
“I think you’ve seen a lot of instances where local governments are, in my opinion, going way above and beyond what they should be doing,” he said.
Steube’s critics argue he is circumventing the will of local voters, who elected the local officials who are crafting ordinances Steube wants to abolish.
“I think that is fundamentally antithetical to our Democratic process,” said Michael S. Alfano, who runs the Campaign to Defend Local Solutions, a group that was formed in early 2017 to push back against the wave of preemption laws.
Before being elected last year, Sarasota City Commissioner Jen Ahearn-Koch was involved in advocating for the city’s updated tree ordinance as a community activist. The process took years and involved many meetings.
As with any regulation, Ahearn-Koch said crafting the tree ordinance involved balancing individual rights against the greater public good. She argued that a healthy tree canopy makes a community more desirable and adds to overall property values and quality of life. Furthermore, she believes the ordinance has broad public support.
“I’m sure there are cases where people are not happy about paying fines but if we have an ordinance that says you need a permit to cut down a tree and you cut it down anyway you really shouldn’t be too shocked,” she said.
Meanwhile, Pelletz is trying to find a way out of his predicament without taking a big financial hit. That likely means planting a tree on the new owner’s property and caring for it over the next year to ensure it survives.
Pelletz said he doesn’t oppose the city’s overall goal with the tree ordinance, but believes it is not flexible enough.
“I can understand their position for sure,” he said. “I just think in this case because of the circumstances there should be some leniency.”