TABLE OF CONTENTS

Introduction: Legal, Regulatory, and Land Use Planning Issues Related to Wildfire

Overview of Issues Addressed

I. Why the use of Prescribed Fire and other Fuel Management Techniques is not more Widespread

A. The Fear of Liability Discourages the Use of Prescribed Fire

B. The Lack of Liability for Failing to Use Prescribed Fire: No Legal Motivation Exists for Landowners to Burn

II. Legal Status of Prescribed Fire in Florida before 1990: Legal to Burn, High Risk of Liability

III. The Florida Prescribed Burning Act of 1990

A. Background, Legislative Findings and Purpose: A Strong Statement in Favor of Prescribed Burning

B. Liability and Nuisance Provisions: Strong Protection for Certified Burners

1. General Provisions
2. Authorized Burning
3. Certified Burning
4. Comparison of Certified and Authorized Burning, Effect on Liability

C. State Conducted Prescribed Burning: DOF Authorized to Burn Private Land

IV. Local Government Measures Requiring or Encouraging Prescribed Burning

A. Statewide Trend Favors Use of Prescribed Fire

B. City of North Port Ordinance : Underbrush Build-Up Prohibited, Government-Conducted Burning Authorized

C. Flagler County Ordinance: Wildfire Hazard Defined, Burning by DOF and County Authorized

D. Effectiveness of Local Regulation Limited by the Florida Right to Farm Act

E. Air Pollution Concerns May Limit the Amount of Prescribed Burning That Can be Conducted in a Local Jurisdiction

V. Common-Law Liability for Failure to Conduct Prescribed Burning: No Duty to Burn, No Liability for Not Burning

VI. Efforts to Protect Communities from Wildfire without Regulating Forest Management

A. The Fire Wise Communities Program

B. Wildfire Mitigation Objective in Proposed Conservation and Open Space Element of the Alachua County Comprehensive Plan

VII. Conclusion


LEGAL ISSUES AFFECTING FORESTRY PRACTICES AND WILDFIRES IN FLORIDA
 

Introduction: Legal, Regulatory, and Land Use Planning Issues Related to Wildfire

     The accumulation of flammable underbrush on intensively managed forestland and fallow land greatly increases the risk and severity of wildfire in the pine forests of the southeastern United States. Before widespread human efforts at fire prevention and development, fires that occurred every few years controlled the build up of underbrush. These frequent fires were generally "surface fires" that destroyed only the flammable underbrush and not "crown fires" which destroy pine trees. Intensification of management techniques in pine plantations have resulted in widespread abandonment of prescribed burning practices on commercial forestland. Indeed, the natural north Florida pine forest depends on fire for its ecological health. Human intervention has disrupted this natural burning regimen, leading to greater accumulations of flammable material in wooded areas, potentially devastating wildfires, and diminished ecological services.

     Prescribed burning reduces the risk and severity of wildfire by replicating the frequent surface fires that once eliminated fuel build-up in the forests. Prescribed burning also provides a valuable ecological service by mimicking pre-settlement ecological processes. Unfortunately, prescribed burning no longer represents a significant management tool on intensively managed silvicultural lands. Liability concerns, changes in industry practices, shifting land ownership and land use patterns, and the lack of meaningful incentives have all but eliminated the use of this valuable forest management tool on private lands in Florida. Although prescribed burning is encouraged by law, economic and regulatory factors have proved to be great disincentives to its use.

     The Florida Prescribed Burning Act encourages the use of prescribed fire by providing significant liability protection. However, Florida law does not require the use of prescribed burning or any other method of fuel reduction on private land. The Florida Division of Forestry is authorized by statute to conduct prescribed burning of private land, even without the owner's consent in some circumstances. Likewise, some local governments in Florida have considered ordinances requiring prescribed burning of land determined to be a wildfire hazard. These tools have generally been directed toward fallow woodlands that persist in platted residential subdivisions and at the interface between urban and wild land rather than toward lands in active forest management. In addition, local government authority to regulate forest management practices has been constrained by recent amendments to the Florida Right to Farm Act. Moreover, Florida law does not currently provide a private cause of action against landowners for contributing to the risk of wildfire by failing to manage woodlands.
 
     Forest management is one factor in the wildfire damage equation, but population growth and sprawling development patterns in Florida are also factors. Developments on the fringe of urban areas, in the "wildland/urban interface", are at greater risk of damage from wildfires. Development policies and practices aimed at reducing the risk of property damage from wildfires could also help solve the wildfire problem. Rural communities remain at the mercy of forest management activities and regulatory programs outside of their political jurisdiction. Accordingly, communities should participate in the planning and regulatory processes of state and local government related to wildfire and forest management to ensure that their interests are adequately addressed.

      The Fire Wise Communities Program provides examples of what steps local governments can take to make themselves safer from wildfires. The program's "defensible space" construction and landscaping guidelines should be incorporated into local governments' land development regulations. Another example is the proposed Conservation and Open Space Element of the Alachua County Comprehensive Plan that contains policies on wildfire mitigation. If adopted, these policies could help reduce the risk and severity of wildfire in this Florida County. Finally, consideration needs to be given to providing forest landowners with appropriate incentives and subsidies to reintroduce prescribed fire as the preferred fuel and forest management tool in North Florida. State and local conservation land acquisition programs, particularly those that permit continued productive use of forestland while fulfilling their conservation purpose, should be aggressively pursued.
Overview of Issues Addressed

     This paper will explore legal issues related to wildfires and forest management in Florida with an emphasis on the legal status of prescribed fire. Part I explores why prescribed fire is not used more often. The legal landscape for prescribed burning that existed before 1990 is examined in part II. The focus then turns, in part III, to the Florida Prescribed Burning Act of 1990 and related statutes. Local government measures addressing the use of prescribed fire are evaluated in part IV. A discussion of the potential for common-law liability for failing to use prescribed fire follows in part V. Part VI examines measures that seek to protect communities from wildfire damage without regulating forest management. The conclusion summarizes the findings and reviews the alternatives available to local governments in Florida for addressing the threat posed by wildfire.

I. Why the use of Prescribed Fire and other Fuel Management Techniques is not more Widespread

A. The Fear of Liability Discourages the Use of Prescribed Fire
 
     The specter of legal liability is a significant deterrent to more extensive use of prescribed fire. The act of intentionally setting a fire obviously raises legal issues and concerns. Landowners can be held liable for damages if a prescribed fire gets out of control. Prescribed burners can potentially be subject to liability under several legal theories:

Negligence-based on the allegation that the controlled burn was conducted in an unreasonable manner causing damage.

Nuisance-based on the allegation that the controlled burn was conducted in an unreasonable manner that interfered with another person's use and enjoyment of their property.

Strict Liability-based on the allegation that controlled burning is an ultra-hazardous and/or inherently dangerous activity, and this activity caused damage.

Trespass-based on the allegation that the defendant intentionally, willfully and/or with reckless disregard caused fire or smoke to invade a neighboring property, thereby causing damage. [1]

It would be in the public interest to provide greater encouragement and legal protection for prescribed burning. Florida provides a measure of liability protection for prescribed burners. This may be part of the reason why Florida leads the nation in the number of hectares of land burned by prescription at about 800,000 per year. [2]

B. The Lack of Liability for Failing to Use Prescribed Fire: No Legal Motivation Exists for Landowners to Burn

     Encouraging and protecting the use of prescribed fire should help reduce the risk and severity of wild fires. Requiring landowners to use prescribed fire, or some other means of fuel reduction, would further reduce this risk. Even with legal protection of prescribed fire, landowners may not be sufficiently motivated to burn. A timberland owner is not liable for damages caused by a wild fire that originates on his land. However, a wild fire started by natural means may cause far more damage than a prescribed fire on the same land.

     Additionally, if the land has not been managed with prescribed fire, or some other method to reduce the build up of vegetative fuels, then the damage from a wild fire will be even greater. The conclusion can be drawn that a landowner who does not conduct prescribed burning creates a risk of greater damage from wild fire.

     It can be argued that by creating an increased risk of severe wildfire, landowners should be liable for damages to neighboring landowners and residents and to the public at large if and when wildfires occur. Nevertheless, no cases are available that hold a landowner liable for not conducting prescribed burning. Legislation may be required to create some kind of cause of action against timberland owners for increasing the risk of catastrophic fire by allowing flammable underbrush to accumulate.

     There is some concern that creating additional grounds of liability for commercial foresters will discourage silviculture as a land use activity. The conversion of timberlands to other uses is a possible negative consequence of increasing the liability of commercial foresters. For this reason, it may be advisable to pursue less confrontational approaches in any attempt to increase the use of prescribed fire by the timber industry and other private landowners.

II. Legal Status of Prescribed Fire in Florida before 1990: Legal to Burn, High Risk of Liability

     Florida common law prior to 1990 imposed strict liability for damages resulting from prescribed fires. [3] The strict liability standard required no finding of fault or negligence by the conductor of a prescribed burn. The degree of care exercised by a burner was not relevant to the determination of liability. There were a number of cases in Florida from this era in which plaintiffs sought damages resulting from allegedly negligent prescribed burning. Often these cases arose from traffic collisions caused by smoke drifting over roadways and interfering with drivers' vision. [4]

     Florida Statute Chapter 590.012 Chapter 590, Fla. Stat. regulated prescribed burning before 1990. [5] The statute made it unlawful to conduct a prescribed burn without Division of Forestry authorization. Burners were required to provide adequate fire lines, manpower, and firefighting equipment to control the fire. In addition, burners were required to monitor the fire until it was extinguished. Chapter 590.14 provided for criminal penalties for violations of other parts of Chapter 590. Willful or intentional violations were punishable as third degree felonies. A careless violation was a second-degree misdemeanor. The statute further provided that a person who started an unauthorized fire, or who allowed an authorized fire to escape, was liable for all reasonable costs of suppressing that fire. Chapter 590.14(3)(b) provided for vicarious liability for any person, firm, or corporation that directed or permitted an unauthorized or out-of-control fire.

     Chapter 590.15 governed criminal prosecutions and civil actions for violations of Chapter 590. A prescribed burner defendant had the burden of proving that he had the right to set the fire to establish that right as an affirmative defense. Even if a defendant was able to establish his right to set the fire, he would still have been liable for "all reasonable costs of suppressing that fire" under Chapter 590.14. Therefore, the affirmative defense was only effective against a charge of starting an unauthorized fire and did not relieve a prescribed burner of liability for damages from an authorized fire.

III. The Florida Prescribed Burning Act of 1990

A. Background, Legislative Findings and Purpose: A Strong Statement in Favor of Prescribed Burning

     The broad recognition of the value of prescribed burning in timber management prompted a diverse coalition of interests to lobby the Florida Legislature for greater protection for burners. Conservationists, preservationists, timber companies, ranchers, and public agencies all sought to promote, protect, and provide guidelines for the use of prescribed fire. The result of this lobbying effort was the passage of the Florida Prescribed Burning Act of 1990. [6]
The Act defines prescribed burning as, "the controlled application of fire in accordance with a written prescription for vegetative fuels under specified environmental conditions while following appropriate precautionary measures that ensure that the fire is confined to a predetermined area to accomplish the planned fire or land management objectives." [7] In the findings and purpose section of the Act, the Legislature made a strong statement favoring prescribed burning:

a. The application of prescribed burning is a land management tool that benefits the safety of the public, the environment, and the economy of the state.

(1) Prescribed burning reduces vegetative fuels within wild land areas. Reduction of the fuel load reduces the risk and severity of wildfire, thereby reducing the threat of loss of life and property, particularly in urban areas.
(2) Most of Florida's natural communities require periodic fire for maintenance of their ecological integrity. Prescribed burning is essential to the perpetuation, restoration, and management of many plant and animal communities. Significant loss of the state's biological diversity will occur if fire is excluded from fire-dependent systems.
(3) Forestland and rangeland constitute significant economic, biological, and aesthetic resources of statewide importance. Prescribed burning on forestland prepares sites for reforestation, removes undesirable competing vegetation, expedites nutrient cycling, and controls or eliminates certain forest pathogens. On rangeland, prescribed burning improves the quality and quantity of herbaceous vegetation necessary for livestock production. [8]

B. Liability and Nuisance Provisions: Strong Protection for Certified Burners

1. General Provisions

     The Act's findings and purpose section also acknowledges that concerns over liability hinder prescribed burning efforts, "As Florida's population continues to grow, pressures from liability issues and nuisance complaints inhibit the use of prescribed burning." [9]  The Act addresses the nuisance issue by stating that prescribed burning, "Is considered to be in the public interest and does not constitute a public or private nuisance when conducted under applicable state air pollution statutes and rules." [10]  The Act also addresses the liability issue in providing that, "A property owner or his or her agent is neither liable for damage or injury caused by the fire or resulting smoke nor considered to be in violation of subsection (2) for burns conducted in accordance with this subsection unless gross negligence is proven." [11]  The Act therefore relieves a prescribed burner from liability if he follows the rules unless it can be proved that he acted with gross negligence. The gross negligence standard provides landowners with considerably more protection than they had prior to passage of the Act. The Act further provides that prescribed burning is a property right of the property owner if it is used to burn vegetative fuels as required under the Act. [12]
In order to enjoy the protection afforded by the Act, landowners must conduct prescribed burns in accordance with the rules laid out in the Act and in related regulations of the Division of Forestry. The Act imposes various conditions that must be met in order for a prescribed burn to be either "certified" or "authorized."

2. Authorized Burning

     Authorized burning is covered by the Act in chapter 590.125(2)(a). There must be specific consent of the landowner or his designee. Authorization must be obtained from the Division of Forestry. Adequate firebreaks, sufficient personnel and firefighting equipment for control of the fire are required at the burn site. The fire must remain within the boundary of the authorized area. Someone must remain at the burn site until the fire is extinguished. The Division of Forestry has to determine that air quality and fire danger conditions are favorable for safe burning and the division has the authority to cancel its authorization.

3. Certified Burning

     The conditions for certified burning are set out in the Act in chapter 590.125(3)(b). Certified burning requires a written prescription plan to be submitted to the Division of Forestry before authorization to burn will be granted. The plan must establish criteria for starting, controlling, and extinguishing the burn. A certified burn manager must be present on site with a copy of the prescription from the time the fire is ignited until its completion. A certified prescribed burn manager is someone who has completed the certification program offered by the Division of Forestry. Certified burning requires the specific consent of the landowner or his designee and this consent must be obtained before the burner requests authorization from the Division of Forestry. Authorization must be obtained before the fire is ignited. There must be adequate firebreaks and sufficient personnel and firefighting equipment to control the fire at the burn site. Certified burning is permitted only where related to silviculture, wildlife management, ecological maintenance and restoration, or range management. [13]

4. Comparison of Certified and Authorized Burning, Effect on Liability

     Several distinctions between authorized and certified burning exist. One is that certified burning requires the presence of a certified burn manager and the submission of a written prescription plan. A careful reading of the statute reveals that the legislative findings and purposes are in the subsection concerning certified burning which is separate from the subsection dealing with authorized, non-certified burning. In addition, the provisions relieving landowners from liability and stating that prescribed burning is not a nuisance are located in the certified burning subsection. Therefore the increased protection offered by the Act only applies to certified burners. The Florida Administrative Code confirms that the protection offered by the Act is only available to certified prescribed burners. [14] Authorized burners may still be subject to the liability standards that existed before the passage of the Act.

C. State Conducted Prescribed Burning: DOF Authorized to Burn Private Land

     Chapter 590 authorizes the Division of Forestry to conduct prescribed burning of privately owned land in order to reduce the hazard of wildfire. [15]  The division may burn land "reasonably determined to be in danger of wildfire" [16] if it follows the procedures set forth in the statute. The Division must describe the areas to be burned to the affected local government entity. The Division must publish a prescribed burn notice in at least one newspaper of general circulation in the area of the burn ten days before the burn. The Division must prepare a notice that the county tax collector will send with the annual tax statement to all landowners in townships that the division designates as wildfire hazard areas. The notice must describe the area to be burned, provide the tentative burning date or dates, state the reasons for the burning, and list the benefits expected to be achieved by the burn.

     The Division of Forestry is required to consider any landowner objections to the prescribed burning of his or her property. A landowner may apply to the Director of the Division for a review of alternative methods of fuel reduction on the property. If the landowner's objection is not resolved by this review, then the Director must convene a panel composed of the local forestry unit manager, the fire chief of the jurisdiction, and the affected county or city manager. The panel will make a recommendation, and if it is not acceptable to the landowner then he may request further consideration by the Commissioner of Agriculture. After all these procedures have been exhausted, the landowner is entitled to an administrative hearing. The records of the Division of Administrative Hearings contain no reports or references to any hearings related to this provision of the Act.

     The Division of Forestry's authority to conduct prescribed burns on private land could be valuable to local governments seeking to promote prescribed burning within their jurisdiction. A local government could lobby the Division to conduct prescribed burns of private property in its jurisdiction. Also, a local government could use the possibility of state conducted burns as leverage in negotiating with property owners to conduct their own prescribed burns. The Division's authority is significant as an instance in which private land can be burned without the owner's consent. This is an important step beyond the provisions of the Prescribed Burning Act, which merely encourage landowners to use prescribed fire without requiring them to do so.

IV. Local Government Measures Requiring or Encouraging Prescribed Burning

A. Statewide Trend Favors Use of Prescribed Fire

     Prescribed burning enjoys a great deal of support among local governments in Florida. The majority of Florida's County Commissions have passed resolutions in support of prescribed burning. [17] All 33 counties in North Florida and 15 of 26 in Central Florida have passed ordinances stating that the use of prescribed fire is a property owner's right. [18] Additionally, some local governments have considered ordinances that require prescribed burning or other fuel reduction techniques under some circumstances.

B. City of North Port Ordinance : Underbrush Build-Up Prohibited, Government-Conducted Burning Authorized

     The City of North Port, in Sarasota County, enacted an ordinance that addresses the problem of high vegetative fuel levels from underbrush build up. [19]  North Port suffers from an inordinately high number of wildfires as a result of dangerously high fuel levels that can be attributed to a lack of prescribed burning. The city's ordinance, Environmental Division-Chapter 6, Ordinance no. 86-206, prohibits the accumulation of underbrush higher than twelve inches as well as the growth of vegetation beyond the legal confines of the property. Because of the high number of absentee landowners, North Port has instituted a program under which the city conducts prescribed burning of privately owned wooded areas. The North Port ordinance is evidence of how a local government in Florida could attempt to combat the accumulation of vegetative fuel on private land.

C. Flagler County Ordinance: Wildfire Hazard Defined, Burning by DOF and County Authorized

     Flagler County also enacted an ordinance directed at combating fuel accumulation. Ordinance 98-14 was enacted following the 1998 fires to provide for wildfire hazard mitigation. The ordinance addresses the property damage sustained by the Palm Coast community in Flagler County. The ordinance is not currently in effect because Palm Coast became a city shortly after its enactment and has not adopted or implemented it. [20] Palm Coast is a 42,000 acre planned development located on former silvicultural land. Prescribed fire was used to control vegetative fuel buildup on this land before it was developed. Palm Coast was a "lot sales venture" where individuals purchased lots through a long-term payment plan with the intention of building on them at some future date. Palm Coast has a densely developed core but there are also many homes built sporadically throughout the development. Undeveloped, wooded lots that are no longer subject to prescribed burning or any other form of timber management surround these homes.

     A 1985 wildfire destroyed 100 homes in Palm Coast and damaged 200 more. A study by the Florida Division of Forestry found a correlation between fuel build-up and the destruction or damage of a residential structure. Palm Coast suffered further property damage during the 1998 fires. The ordinance states that the presence of highly flammable vegetation on undeveloped properties creates an imminent danger of conflagration that could endanger the health, safety, and welfare of the citizens of Palm Coast. The Division of Forestry's authority to conduct prescribed "mitigation" burning on private land is acknowledged, but declared to be of limited utility in Palm Coast due to the spreading and scattering of new homes being built in the pine plantation. The County decided to exercise its home rule power in coordination with the Division of Forestry to address wildfire hazard mitigation through the passage of the ordinance.

     The ordinance defines fire hazard in several ways:
...trees, brush or other vegetation by reason of their nature, location or condition may cause loss, damage, or injury to persons or property by reason of fire. Brush on undeveloped lots averaging over three (3) feet tall within thirty (30) feet of an existing residential structure and pine trees on undeveloped lots averaging over five inches in diameter at four and one-half (4 1/2) feet above grade spaced in such a way that the average crown closure is more than 75% are considered fire hazards. [21]

     The ordinance provides that the County will work jointly with the Division of Forestry to identify, "...undeveloped properties determined to have a wildfire hazard risk that exists to a greater degree than that customarily recognized as normal by persons in the public service regularly engaged in preventing, suppressing and extinguishing fires." [22]  The ordinance declares that such properties are public nuisances. [23]  The County and the Division of Forestry are charged with developing a plan for mitigating the hazards posed by these identified properties. Prescribed fire is identified as the preferred hazard mitigation tool. Selective brush mowing and removal of the portion of the pine canopy that constitutes a fire hazard are identified as the mitigation methods to be employed where prescribed burning is not feasible or appropriate.

     The County and the Division of Forestry are required to notify property owners that their land has been identified as hazardous and inform them of the required mitigation measures. Property owners have the right to appeal the identification of their land as a hazard to the County Code Enforcement Board. [24]  An owner may perform the prescribed mitigation work himself or let the County and the Division of Forestry perform it. If the County and the Division of Forestry perform the work, the costs will be charged as a lien on the owner's property. Costs are defined as, "...all expenditures by the State Division of Forestry, the County or their authorized agents for labor, supplies, equipment use, contractors and services related to implementing the mitigation plan for the property." If the prescribed mitigation work includes removing trees and the County and the Division of Forestry perform the work, then the County and the Division may sell the timber to defray their costs. [25]

D. Effectiveness of Local Regulation Limited by the Florida Right to Farm Act

     The Flagler County and North Port ordinances provide examples of how a local government might be able to require private landowners to reduce fuel buildup. The usefulness of these ordinances as models for other local governments in Florida may be limited. The Flagler County ordinance applies to land intended for future residential development by individual owners and not to land in active timber production. Likewise, the North Port ordinance is directed at absentee landowners rather than silviculturalists. These are critical distinctions as the ability of local governments to regulate silvicultural activities may be limited.

     The Florida Right to Farm Act bars a local government from adopting an ordinance that prohibits, restricts, regulates, or otherwise limits an activity of a farm conducted on land classified as agricultural. [26] The Act does not specifically mention silviculture but it defines "farm" broadly and it likely includes timber production among the activities it protects. The limitation on local government regulation only applies to farming activities regulated by implemented and statutorily adopted Best Management Practices (BMP's) developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or Water Management Districts. Silviculture is regulated by BMP's adopted by the Division of Forestry, which is a part of the Department of Agriculture and Consumer Services. The most recent (1993) Silviculture BMP's are directed at preserving water quality and do not address prescribed burning or other management practices related to wildfire hazards.

     The failure of the best management practices to address activities related to wildfire hazard mitigation may open the door for local government regulation. However, the Florida Right to Farm Act protects farm operations from nuisance suits, [27] thereby creating additional barriers to local government regulation. The Flagler County ordinance, for example, functions by defining hazardous lands as public nuisances. [28]  The Right to Farm Act prevents farmland from being declared a nuisance and therefore may render an ordinance that operates by declaring hazardous land a public nuisance ineffective against silvicultural land.

E. Air Pollution Concerns May Limit the Amount of Prescribed Burning That Can be Conducted in a Local Jurisdiction

     Smoke from fires, whether prescribed or wild, produces air pollutants in the form of particulate matter and various gases. Increasing the use of prescribed fire could have the unintended affect of violating federal, state, and/or local air quality regulations. A local government that attempts to institute prescribed fire program should investigate the possibility that more burning will run afoul of air emissions rules. If air pollution rules are a barrier to increased prescribed burning, an effort should be made to reform such rules to acknowledge that prescribed burning may prevent wildfires that emit much greater amounts of pollutants.

V. Common-Law Liability for Failure to Conduct Prescribed Burning: No Duty to Burn, No Liability for Not Burning

     There are no reported court cases in Florida where a timberland owner has been held liable for failing to reduce vegetative fuel levels. Further, there are no reported court cases where such a claim has been brought against a timberland owner. However, the theory that landowners should be liable for failing to conduct prescribed burning has been advanced in administrative hearings in Florida. Owners of billboards that were destroyed by the 1998 wildfires claimed that the failure of some property owners to engage in prescriptive burning caused the spread of the fires that destroyed their signs. Several billboard companies made this argument in a series of four administrative cases involving the Florida Department of Transportation. [29]
 
     The case with the fullest discussion of the prescribed burning issue is Department of Transportation v. Whiteco Metrocom. [30]  The signs at issue were erected prior to the enactment of state and federal regulations limiting billboards along highways. The signs did not meet the requirements of these regulations but the company was permitted to maintain them as non-conforming signs under "grandfather" clauses in the regulations. The regulations allow non-conforming signs to be re-erected only if they are destroyed by vandalism, or other criminal or tortious acts. [31]  The provision relating to vandalism, crimes, and torts, is an exception to the prohibition on re-erecting non-conforming signs that are destroyed. Since this provision is an exception to the general rule, the company bore the burden of proving by a preponderance of the evidence that its signs met the exception. [32]  There was no suggestion that vandalism or criminal acts were involved, so the company needed to show that its signs were destroyed by a tortious act in order to be allowed to re-erect them.

     The company alleged that the failure the Division of Forestry and certain landowners to use prescribed fire was a tort. The company argued that controlled burning would have reduced the fuel loads in the areas that were eventually burned by the fire. The Findings of Fact in the Recommended Order included a finding that one of the primary purposes of prescribed burning is to reduce fuel loads and thereby reduce fire hazard. [33]  The Order further found that the failure to prescribe burn increases the possibility of a wildfire and that if prescribed burns are not done in an area over time the possibility of the spread of wildfire is foreseeable. [34]
In the Conclusions of Law section of the Recommended Order, the Administrative Law Judge (ALJ) stated that the Division of Forestry has no ability to require prescribed burning and that the DOF cannot enter onto property to conduct prescribed burning without landowner consent. [35]  This may be an incorrect interpretation of the law, as Section 590.125(4), Florida Statutes, provides the DOF with the authority to conduct prescribed burning on private land. The statute requires notification of the landowner and requires the DOF to "consider" landowner objections but it does not require landowner consent. The ALJ appears to have been referring to provisions of the Prescribed Burning Act that prohibit private parties from burning without landowner consent. However, even if the ALJ had concluded that the DOF has the authority to prescribe burn private land, it may not have changed his ultimate conclusion. The ALJ determined that the DOF had no common law duty to ask landowners to use prescribed fire. [36]  If the ALJ had concluded that the DOF had the authority to conduct prescribed burning without landowner consent, it still seems likely that he would have found that the DOF had no duty to do so.

     The ALJ further concluded that a property owner does not have a duty to use prescribed fire to reduce the potential for naturally occurring wildfires to spread on or across his property. [37] The ALJ observed that no duty to engage in prescriptive burning is found in Florida statutory or case law and that where no duty exists, there can be no tort liability. [38]  The ALJ acknowledged the existence of the public policy encouraging prescribed burning but stated that the failure to act in accordance with public policy, in the absence of a legal duty to do so, is not a tort.  [39]

     The Administrative Law Judges in the other three cases reached the same conclusions regarding the lack of liability for landowners who fail to prescribe burn. Unlike court cases, administrative cases do not create binding precedents. Therefore, a court judge confronted with the same issue could rule differently than the administrative law judges did in the billboard cases. However, the fact that a judge in a court case would be interpreting the same law as the administrative law judges reduces the likelihood of a different outcome. One aspect of the billboard cases that could lead to a different result in a court case is that the sign companies may not have made the most sympathetic plaintiffs. The sign companies were attempting to take advantage of a limited exception that would allow them to re-erect their non-conforming signs. The companies' arguments that landowners committed a tort by failing to use prescribed fire received much skepticism from the administrative law judges. Individuals whose homes were destroyed, or even a timberland owner whose trees were destroyed, might face less skepticism of their motives in bringing such claims.

VI. Efforts to Protect Communities from Wildfire without Regulating Forest Management

     There are alternatives available to local governments concerned with wildfires that do not require regulation of forest management practices. These alternatives focus on defensive strategies that reduce the risk of wildfires destroying homes and communities rather than on reducing the overall risk of fires. Development in the interface between urban and wild areas increases the risk of property damage from wildfires. Development policy contributes to property damage from wildfires and must be addressed in any comprehensive effort to solve the wildfire problem in Florida.

     An example of such an alternative is the Fire Wise Program that promotes construction and landscaping guidelines to reduce the risk of damage and destruction from wildland fires. Local governments may incorporate these guidelines into their land development regulations and building codes. The Fire Wise Program acknowledges the vulnerability of structures built in the interface between wildland and expanding urban areas. The program's guidelines include special requirements for developments in this "urban/wildland interface."

     Alachua County is considering adding a Conservation and Open Space Element to its comprehensive plan that includes provisions for wildfire mitigation. Many of the policies outlined in the draft element reflect the principles of the Fire Wise Program. Additionally, the draft element would involve land use planning in the effort to reduce the risk of damage from wildfires by restricting certain uses from designated high-risk areas. The wildfire mitigation objective of the draft element may represent the most significant steps that a local government can take under Florida law to protect its citizens from fire damage.

A. The Fire Wise Communities Program

     The National Fire Protection Association and the U.S. Forest Service developed the Fire Wise Communities Program to protect communities in the urban/wildland interface from wildfire. [40]  The program is promoted in Florida by the Division of Forestry and the Division of Emergency Management of the Department of Community Affairs. [41]  The Program encourages the use of construction and landscaping techniques to make homes more fire safe.
The City of Ormond Beach is conducting a "Fire Wise House Demonstration Project" that provides an example of how local governments can incorporate Fire Wise principles into their land development regulations. [42]  A local government that wishes to adopt Fire Wise principles should determine where moderate to high wildfire hazard areas exist in their jurisdiction. Proposed subdivisions in these areas could be subject to Fire Wise guidelines. One example is providing a thirty to fifty foot greenbelt buffer around the perimeter of the subdivision site to be thinned of trees and underbrush. [43] Another example is requiring subdivision owners to thin trees in the building footprint areas of undeveloped lots so that no more than seventy-five percent closure of the tree canopy remains. [44]  Removal of underbrush in these areas could be allowed if the lots were declared to be in high to moderate fire hazard areas. Lands put in conservation easements in subdivision developments could be subject to management according to best management practices in perpetuity, which could include controlled burning or other means of vegetation management and thinning of tree canopy closure. [45] Underground utilities and two-way access in and out of subdivisions could be required. [46]  On the wildland/urban interface, perimeter lots could be required to be a minimum of one-half acre in size to allow at least thirty feet of defensible space and proved greater separation between structures. [47]

     Local governments could require that, if half-acre perimeter lots are not provided, all lots in the development should be subject to the following requirements: boxed roof eaves with masonry, metal or wood soffits and metal screens over vents; non-combustible or combustion resistant exterior building materials; "Class B" or better roofing materials; irrigated lawn areas; inorganic shrubbery mulch (no wood product or pine needle mulches); pine tree canopy thinning to less than seventy-five percent of closure and removing underbrush to achieve at least thirty feet of defensible space around the structure; wood decks must be constructed so that all crawl space areas under deck have metal mesh screening and use at least two-by-six-inch pressure treated wood; and, windows that are double insulated or made of a plastic composite material that will not shatter from the heat of a fire. [48]

     Local governments could also adopt Fire Wise landscaping guidelines as regulations and require eliminating ladder fuels such as vines and low branches of trees, using fire resistant plants, and providing two to three feet of clearance between structures and shrubs. [49]  Owners of existing homes who wish to protect themselves from fire could follow the Fire Wise construction and landscaping guidelines. Tax incentives or low-interest loans could be provided to homeowners to defray the costs of "Fire Wise" improvements.

B. Wildfire Mitigation Objective in Proposed Conservation and Open Space Element of the Alachua County Comprehensive Plan

     Alachua County is considering the addition of a Conservation and Open Space Element to its Comprehensive Plan. [50]  The draft of this element contains an objective and several policies for wildfire mitigation. The objective is to, "protect life, property, and the economy by eliminating or minimizing the present and future vulnerability to wildfire hazards." [51]  One of the policies calls for mapping and ranking areas of wildfire hazard within the county using features such as plant community type and development stage, canopy cover, hydrology, soils, slope, aspect, and elevation. [52]  The mapping will initially be based on the Fire Risk Assessment Model contracted by the Florida Division of Forestry for completion in 2002. [53]  The mapping is to be reviewed annually and will be updated as necessary in response to changing fuel conditions. [54]
Another policy calls for educating the public, especially those at high risk from wildfires, to promote awareness of proactive steps that can be taken to mitigate wildfire damage. [55]  The County intends to implement a Fire Wise Model Community Program involving community fire preparation and evaluation and will seek certification by the state Fire Wise Communities Certification Program. [56] 
Other policies involve land use planning in the effort to mitigate wildfire risks. The County will restrict or prohibit land uses in areas at risk from wildfire as necessary to assure public health, safety, and welfare and the protection of property. [57]  Land uses and specific development plans for which adequate wildfire mitigation cannot be provided, or that would preclude or severely limit the use of wildfire mitigation or natural resource management options such as prescribed fire, shall not be authorized in severe wildfire hazard areas. [58]  Development in wildfire hazard areas will be required to comply with the following minimum standards:

1. All new development shall complete and implement a wildfire mitigation plan specific to that development, subject to review and approval by the Alachua County Fire Rescue Department.

a. The mitigation plan shall include suggested project and parcel design features, such as defensible project perimeters, interior project fuel breaks, individual site defensible space, landscaping guidelines and plant material suggestions, and the placement of structures.

b. Provisions shall be made for community support for and education about the mitigation plan.

c. The mitigation plan shall be reviewed annually and, as necessary, updated in response to changing site conditions.

2. Structures shall be designed to minimize the potential for loss of life and property from wildfires, through requirements for sprinkler systems, fire-resistant materials or treatments, and appropriate site design practices.

3. Water storage facilities, accessible by standard fire-fighting equipment, shall be provided, dedicated, or identified for fighting wildfires. Where public supply is available, fire hydrants of sufficient pressure shall be required.

4. Streets, roads, driveways, bridges, culverts, and cul-de-sacs shall be designed to assure access by fire fighting equipment providing for weight class, cornering, turnaround and overhead clearance. [59]

     The wildfire mitigation objective calls for the County to implement a fuels management program that would focus on the wildland/urban interface as a wildfire hazard area. [60]  This program would include practices such as prescribed burning, mechanical fuel reduction, and thinning, to reduce wildfire hazards and protect natural resources. [61]  Increasing public awareness of both the benefits of both prescribed burning and the inevitability of resulting smoke is to be a goal of the program. [62]  The program will further seek acknowledgement by occupants of areas where prescribed burning is appropriate that they have been informed that prescribed burning may be used to manage wildfire hazards and that smoke will occasionally be present. [63]
The wildfire mitigation objective of Alachua County's draft element contains a variety of measures that seek to protect communities from fire damage without attempting to regulate the forestry industry. These measures acknowledge the fact that developing in the urban/wildland interface increases the risk of property damage from wildfires. Forest management is one factor in Florida's wildfire problem equation, but development policy is another. Sound forest management practices can reduce the chance of wildfires occurring in the first place. Responsible land use and development policies can reduce the risk of damage from wildfires once they do occur.

VII. Conclusion

     The Florida Prescribed Burning Act provides significant liability protection for prescribed burners. A local government could encourage landowners to take advantage of the opportunities under the Act to conduct prescribed burning. A local government should initiate a dialogue with local forestland owners and managers. This dialogue could include a roundtable discussion between community leaders and landowners concerning management practices. The objectives of such a discussion should include gathering feedback from landowners on the feasibility of implementing the various management practices recommended in this report. A local government may also investigate the possibility of sponsoring a prescribed fire education program for local landowners and managers. Officials from the Division of Forestry should be involved in such a program and could work with local landowners to facilitate the use of prescribed fire.

     Florida Statutes also provide a precedent for government-conducted, involuntary burning of private land. A local government could seek to have the Division of Forestry burn private land under these provisions of the Act.

     There are precedents for requiring prescribed burning in local government ordinances in Florida. A City or County could enact an ordinance using existing ordinances from elsewhere in the state as examples. It should be noted that the Florida Right to Farm Act could prevent the application of an ordinance to any land that is in active timber production.

     Florida case law does not provide support for the idea of imposing liability on a timberland owner who fails to reduce the accumulation of flammable vegetation on his property. Communities could lobby the state legislature to create a cause of action against landowners who do not employ wildfire hazard mitigation measures. Attaining legislative action could prove difficult and controversial. Additionally, the potential liability that such a cause of action would create might have the undesirable effect of discouraging forestry as a land use.

     The proposed Conservation and Open Space Element of the Alachua County Comprehensive Plan contains policies relating to wildfire mitigation that could benefit communities throughout the county. Other Counties and Cities should consider incorporating similar policies into their comprehensive plans. Local governments should also consider incorporating principles of the Fire Wise Communities Program into their regulations. City and County governments should also consider having the appropriate officials attend a Fire Wise workshop. Since Cities and Counties may lack the authority to regulate forest management practices, adopting defensive strategies may be the most significant step they can take to protect their residents from the threats posed by wildfire.
The availability of financial subsidies and tax incentives for wildfire hazard mitigation should be explored. Federal, State, and local programs are in place to provide such assistance, and should be coordinated by any local government concerned about wildfire. The eligibility of timberlands for conservation easements under various programs should also be examined. [64]

     Educating the public about the benefits of prescribed fire is also recommended. Residents of areas where prescribed burning is to be conducted must be made aware of its benefits. These residents should be informed that prescribed fire will produce smoke but that this is a minor inconvenience compared to the damage and destruction from the smoke and fire that a wildfire would produce. Because there is great public awareness of and concern over the threats posed by wildfire, it is particularly important for the public to understand that prescribed fire reduces the risk of wildfire.
 

Endnotes:
1  Gary L. Achtemeier, et al, The Smoke Dilemma: A Head-on Collision!, 62nd North American Wildlife and Natural Resources Conference 415, 418.
2  Dale Wade & Ken Outcalt, Prescription Fire to Manage Southern Pine Plantations-Damned if you do, Damned if you don't, 1999 International Environmental Conference 455, 457.
3  Kimberly A. Heuberger, Fire in the Suburbs: Ecological, Social, and Legal Implications of Prescribed Fire in Remnant Longleaf Pine Sandhill. M. S. Thesis, University of Florida, 1988, p. 75.
4  See, e.g.: Waters v. ITT Rayonier, Inc, 493 So.2d 67 (Fla. App. 1986).
5  Id.
6  Id at 76.
7  F.S. § 590.125(1)(a)(West 2000).
8  Id. at § 590.125(3)(a)(1-3).
9  Id. at § 590.125(3)(a)(7).
10  Id. at § 590.125(3)(b)(6).
11  Id. at § 590.125(3)(c).
12  Id. at 590.125(3)(b)(7).
13  F.A.C. § 5I-2.006(2).
14  Id.
15  Id. at 590.125(4).
16  F.S. § 590.125(4) authorizes DOF to burn "any wild land". F.S. § 590.015(5) defines "wild land" as, "...any public or private managed or unmanaged forest, urban/interface, range land, recreation lands, or any other land at risk of wildfire."
17  1999 International Environmental Conference at 457.
18  Id.
19  Heuberger, pp. 81-82. This ordinance may not be in effect, the DOF regional office that includes North Port, could not confirm the existence of the ordinance.
20  The City of Palm Coast decided that the ordinance, in the form adopted by Flagler County, was not workable but the City has written its own version that was approved by the City Council in 2001. The citation to the 2001 Ordinance is not yet available.
21  Flagler County Ordinance No. 98-14, section 2
22  Id at Section 3
23  Id.
24  Id at Section 4
25  The revised version of the ordinance under consideration by the City of Palm Coast does not authorize tree removal and only addresses hazardous brush, according to the DOF Bunnell office.
26  F.S. § 823.14(4)(b)(6)(West 2000).
27  Id at § 823.14(4)(a)
28  Flagler County Ordinance No. 98-14, section 2
29  Department of Transportation, v. Whiteco Metrocom, Department of Transportation v. Chancellor Media Whiteco Outdoor Corporation, 1999 WL 1486516 (Fla. Div. Admin. Hrgs.); Department of Transportation v. Lamar EastFlorida, 1999 WL 1486479 (Fla. Div. Admin. Hrgs.);Department of Transportation v. Universal Outdoor Atlantic Coast, 1999 WL 1486495 (Fla. Div. Admin. Hrgs.); Department of Transportation v. Whiteco Metrocom, Department of Transportation v. Chancellor Media Whiteco Outdoor Corporation, 1999 WL 1486515 (Fla. Div. Admin. Hrgs.)
30  Department of Transportation, v. Whiteco Metrocom, Department of Transportation v. Chancellor Media Whiteco Outdoor Corporation, 1999 WL 1486516, (Fla. Div. Admin. Hrgs.)
31  Fla. Admin. Code 14-10.007(1)(f)
32  Whiteco, at ¶ 66.
33  Id at ¶ 54.
34  Id at ¶ 55.
35  Id at ¶ 75.
36  Id.
37  Id at ¶ 76.
38  Id.
39  Id.
40  http://www.firewise.org, March 16, 2001; Letter dated September 26, 2000 from Mr. Bill Butler, Landscape Architect, City of Ormond Beach, to Mr. James B. Harrell, Wildfire Mitigation Coordinator, Bureau of Forest Protection, Division of Forestry, entitled "Firewise House Demonstration Project".
41  Id
42  Id
43  Id
44  Id
45  Id
46  Id
47  Id
48  Id
49  Id
50  The draft Conservation and Open Space Element was presented to the Local Planning Agency at a public hearing on April 16, 2001. A revised draft was presented to the Alachua County Board of County Commissioners at workshops in April and May, 2001.
51  Draft Conservation and Open Space Element, Objective 5.6.
52  Ibid at Policy 5.6.1
53  Id
54  Id
55  Id at Policy 5.6.2
56  Id at Policy 5.6.4
57  Id at Policy 5.6.5, the draft element does not list any particular land uses that may be restricted or prohibited in wildfire hazard areas.
58  Id
59  Id at Policy 5.6.6.
60  Id at Policy 5.6.8.
61  Id
62  Id
63  Id
64  One potential source of assistance is the "Rural and Family Lands Protection Act" passed by the Florida Legislature in the 2001 session. The Act is scheduled to go into effect on July 1, 2001 and will be codified in Florida Statutes §§ 570.70-71. The Act calls for incentives to reward landowners for good stewardship of land and natural resources. The Act established programs for land acquisition, perpetual conservation easements, agricultural protection agreements, and resource conservation agreements. The Act calls for these programs to give preferences to ranch and timberlands managed using sustainable practices.