Opposition Mounts to Changes in Miami’s Tree Laws

Calling them a “giveaway to developers,” local activists and an array of environmental groups have pledged to defeat a controversial proposal to rewrite the city’s tree ordinance.

A broad coalition of environmental groups and civic activists opposing changes to Miami’s tree protection laws claimed a small victory Friday when City of Miami District 1 Commissioner Miguel Gabela – the legislation’s sponsor – announced he would defer the measure from this Thursday’s commission agenda to a date in January.

The announcement came at the start of a hastily arranged town hall gathering at City Hall where a crowd of about 50 implored Gabela to rethink the changes, with some calling them a “giveaway to developers” crafted with little or no public input. It is Gabela’s second deferral of the measure since October.

The changes would greatly loosen permitting requirements for tree removal and would alter spending requirements and oversight of a city fund that generates over $1 million annually for tree planting and canopy restoration within the city.

Gabela and senior staff members of the city’s Building Department told the crowd that a major overhaul of Miami’s existing tree protection ordinance is needed to relieve property owners of the costs and regulatory burdens of routine tree trimming and removal – a goal many attendees at the town hall endorsed. “We need to find a way to streamline the permitting process,” Gabela said.

As an added benefit, Building Department Assistant Director Jose Regalado told the crowd a revised tree ordinance would remove barriers to more affordable housing. He offered no details.

But opponents see the proposed amendments to the city’s tree laws as an unnecessary overreach that would open the door to vast canopy loss, particularly in Coconut Grove where tree canopy is both a draw and a deterrent to development.

“Our [existing] tree ordinance is not the problem,” says Sandy Moise, Director of Policy for the Urban Paradise Guild, a Miami-based group that promotes strategies to mitigate the effects of climate change. “It’s the city’s implementation of the ordinance that creates hardships for homeowners. That’s what needs to be fixed.”

Moise and other critics describe the effort to rewrite the tree code as a kind of Trojan Horse for tree removal, bestowing developers with broad rights to clear land, but under the guise of easing burdens for ordinary homeowners. She described the proposed changes as a “developer’s wish list.”

Among the most controversial changes proposed are provisions that would allow homesteaded property owners broad latitude to remove trees without a permit or oversight – those smaller than 18 inches in diameter, those considered diseased or dangerous, those said to be “damaged” during hurricane preparation or cleanup, and any from among an expanded category of nonnative trees deemed undesirable or “unprotected.”

While many homeowners may welcome such rights, Moise argues that the vastly expanded permitting exemptions would extend to developers who claim homestead privileges at a development site – an already common practice for other reasons – with the aim of clearing the lot of trees before starting construction.

In other instances, she points out, the provision will incentivize homesteaded owners of smaller homes with high redevelopment value (much of Coconut Grove) to clearcut their lots – for which developers would pay a premium — prior to selling.

Among the groups opposing the code changes are Sierra Club, Tropical Audubon Society, Dade Heritage Trust, Miami Waterkeepers, Friends of Biscayne Bay and homeowners associations citywide.

Members of the loosely organized coalition – operating under the name Miami’s Trees Matter Most – have pointed out that the proposed changes also strip non-homesteaded properties of some tree protections.

One such provision would allow developers to claim tree-removal privileges – even for large “specimen” trees — not just to make way for new construction but to make way for the “staging” of the new construction. Thus in practice, they say, a developer could easily argue the right to clear an entire lot to accommodate equipment, supplies and vehicles.

The changes also would loosen requirements to safeguard existing trees from damage caused by digging and by heavy equipment within a construction site. Another change would allow a developer’s own arborist or landscape architect to certify their project’s compliance with the tree ordinance, replacing work now performed by city code inspectors.

“Everything that’s been added or subtracted [in the proposed changes] is weakening the ordinance and opens it up for an interpretation that benefits the clear-cutting developer,” says Ken Russell, a former District 2 city commissioner who’s advising the Sierra Club on tree protection policy.

Russell, who served in office from 2014 to 2021, also notes that some of the proposed changes are nuanced, but with profound consequences.

In one instance, he says, in a section that prescribes requirements for relocating trees from within a construction site, the word “shall” has been replaced with the word “may” – a difference which renders the requirements legally unenforceable.

And under the new amendments, Russell points out, an existing provision would be stricken that prevents the issuance of Temporary Certificates of Occupancy for projects which resulted in violations of the tree ordinance.

Other critics object to a change that would allow the city’s Tree Trust Fund — which collects upwards of $1 million a year from developers and property owners in exchange for tree removal permits – to be tapped for uses other than new tree plantings, which the present code mandates.

And, if the proposed changes are adopted, the fund’s oversight would be transferred from the Building Department to the City Manager’s Office.

Both changes worry Lauren Jonaitis, Senior Conservation Director for Tropical Audubon, who believes the fund’s original intent – monetizing canopy loss to pay for canopy replacement – should remain intact.

Russell, who championed stricter tree protection laws while in office, says efforts to undermine the city’s tree protection laws have long been a priority for developers, land-use attorneys and the rotating cast of city commissioners who assert the inviolable sanctity of property rights.

He traces the present legislative initiative to the little-noticed decision in 2021 to transfer the city’s Environmental Resources Division, which oversees permitting and enforces all tree protection laws, from the Planning & Zoning Department to the Building Department – a move he believes has left the division more beholden to the city’s pro-development ethos.

Indeed, when drafting the controversial changes to its tree laws, Building Department officials excluded input and review from the person most responsible for enforcing the code: Quatisha Oguntoyinbo-Rashad, the 25-year city hall veteran who oversees the Environmental Resources Division.

“Neither I nor the Environmental Resources Division has been involved in the proposed changes to this ordinance,” Oguntoyinbo-Rashad wrote last week in a terse email widely shared among members of the coalition opposing the changes.

Despite repeated requests for comment Oguntoyinbo-Rashad was not authorized by city officials to answer questions from the Spotlight.

City Manager Art Noriega and Building Department Director Eduardo Santamaria did not respond to the Spotlight’s requests for comment. District 2 City Commissioner Damian Pardo was unavailable to answer questions, a spokesperson said.

Also left in the dark on the draft changes were two citizens advisory panels charged with helping shape city policy toward tree protection: The Climate and Resilience Committee (CRC), and the Historic and Environmental Preserve Board (HEPB).

On December 2 the CRC passed a resolution urging the city commission to delay consideration of the proposed amendments until CRC members can weigh in on their impact and, if necessary, propose alternatives.

The HEPB passed a similar resolution, with one board member questioning why city staff and the commission were “moving really, really fast on a complicated issue.”

Another member, Denise Galvez Turros, attended the town hall gathering and similarly pleaded to Gabela and Building Department staff for a more transparent, open process for drafting the new ordinance.

In his opening presentation at the town hall on Friday the Building Department’s Regalado said the comprehensive changes to the city’s tree code – despite their sudden and unexpected emergence in late October – were nearly five years in the making.

Russell says residents should be alarmed by the lack of transparency, although he’s not surprised.

As for the promise of affordable housing that a diminished tree ordinance would usher in? Don’t be fooled, he says. Affordable housing – like job creation – is often the seductive selling point for bad policy.

“So where did this really come from?” Russell asks. “The only answer to me is that that this helps development cut trees faster. This helps the homeowner who wants to maximize their sale to a developer, to be able to cut every tree on their lot without scrutiny or permitting or oversight.”