North Hill 'heritage' oak case: Pensacola loses second appeal in tree removal lawsuit
Pensacola lost a second appeal case last week attempting to block the removal of a "heritage" oak tree on Spring Street in North Hill.
The Florida First District Court of Appeal issued another 2-1 decision Wednesday denying the city's request for a full hearing before the court and certification of the case as an issue of "great public importance," which would open a path for the Florida Supreme Court to hear the case.
Three years ago, the city sued Larry and Ellen Vickery to block the removal of the protected tree. Following a new state law, the couple had obtained an arborist opinion stating the tree was dangerous and could be removed once the city was notified.
The city sought the opinions of other arborists who said the tree was healthy and an Escambia County Circuit Court judge allowed an injunction to go into effect that blocks the removal of the tree until the lawsuit concludes.
In February, the Florida First District Court of Appeal ruled in a 2-1 decision that the Vickerys had fulfilled the requirements of the law and the city was wrong to hire its own arborist to challenge the opinion.
Following the ruling, the City Council took the unusual step of conducting a public "straw vote" on the litigation, unanimously supporting the city attorney's office's proposal to appeal the decision and seek certification for an appeal to the Florida Supreme Court.
While the appeal was pending, Gov. Ron DeSantis signed a new version of the law in May requiring arborists to use standards set by the International Society of Arboriculture to determine if a tree is too dangerous to be allowed to remain.
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The new version of the law closes a loophole that was the main issue of contention for the city — that a person could "pay" for whatever opinion they wanted — which the city argued would undercut any local tree protection ordinance.
Like in the previous ruling in February, Judge Scott Makar dissented to the opinion and said the passage of the 2022 law strengthened the city's position with the same standards the city argued for in the original case.
In a majority opinion written by Judge Thomas Winokur and joined by Judge Bradford Thomas on Wednesday, the appeals court said that the new version of the law had no bearing on the current issues in the case because they were decided before the law existed.
The court said it was up to the lower court to decide whether the 2022 law can be retroactively applied to this case.
"What is clear is that the temporary injunction in this case was imposed nearly three years ago, and that briefing was completed in this appeal over one and one-half years ago," the court said. "It is long past time to return this case to the trial court to conclude this litigation."
Jim Little can be reached at jwlittle@pnj.com and 850-208-9827.
This article originally appeared on Pensacola News Journal: Pensacola 'heritage' tree case: Florida appellate denies city's appeal
