While the Holmes Beach Code Enforcement Board July 30 found a tree house built at Angelinos Sea Lodge, 103 29th St., to be in violation for building without a permit and building seaward of the erosion control line, the issue continues due to a petition filed by the owners and the process the city must follow.
The tree house owners, Richard Hazen and Lynn Tran, initiated the petition drive that, if successful, will force commissioners to take an up or down vote on a special ordinance to grandfather the tree house.
Tran and Hazen were able to garner signatures from registered voters needed to force the vote, and, if voted down, the city would then required to hold a special election and voters would decide on the matter.
However, in a registered letter to Hazen and Tran dated Aug. 7, city clerk Stacey Johnston found the petition to be insufficient because of an omission on the petition, which requires a count of signatures on each page.
“The charter requires you to note the number of signatures on each petition,” said city attorney Patricia Petruff at an Aug. 13 city commission meeting, and it was blank.
Petruff said she received a letter from Tran saying there was some confusion and she didn’t understand that needed to be done.
“Trying to do an initiative under the charter is a very detailed process where everything counts,” said Petruff.
However, she recommended commissioners accept the amended petition filed by Tran, who resubmitted the petitions with the required information.
“I don’t think it’s worth getting into a big dispute,” she said, while noting that even if commissioners agreed not to kill the petition over a technicality, the petition would again be deemed insufficient because it is about 10 signatures short of the requirement.
If commissioners agree to accept the amended petition, Tran then would have a certain number of days to garner the remaining needed signatures.
Petruff said the city has legal standing to conclude the tree house matter and the acceptance of the amended petition would be a good faith measure on the city’s part to continue the process.
She acknowledged, however, that leaving the number of signatures blank was not the city’s problem.
“They had a lot of opportunities that if they didn’t understand the form, they could have contacted us before they turned it in with big blanks,” she said.
Commissioner Pat Morton said he could not agree to accept the amended petition.
“My whole stand on this tree house is it shouldn’t have been built,” he said. “Now we are jumping through all kinds of hoops with these people. And now they are coming to us saying ‘I didn’t know.’ It seems like a pattern to me. I disagree with giving them what they are asking for.”
Commissioner Marvin Grossman agreed with Morton, but also didn’t want to take advantage of a technicality.
“They may do it, but I think we may need to be bigger than that,” he said. “We have enough reasons to turn it down.”
Commissioner Judy Titsworth asked what would happen if commissioners voted to kill the petition.
Petruff said the city would likely be taken to court and, while the city has standing, judges typically don’t like ruling on a technicality and would probably allow Tran and Hazen to move forward with the initiative.
Commissioners agreed to accept the amended petition, with Morton opposed.
Holmes Beach to initiate court proceedings
Ultimately, city officials don’t believe an election on the matter will change the fate of the tree house.
A city cannot create an ordinance that is contradictory to state law and the violation of the tree house being built beyond the erosion control line is a state violation.
Petruff also said she discovered language in state statutes regarding a development order, which directly relates to comprehensive plan amendments.
“A building permit and special exceptions have always been deemed a development order,” she said. “We had building activity on a parcel of land.”
Petruff said she will recommend commissioners vote against the ordinance once the petition has been verified by the city and the Manatee County Supervisor of Elections Office, but also suggested that the city resolve the matter before a special election is needed.
Petruff said the language she described has yet to be litigated and could end the matter if the city asks for a declaratory judgment.
“Then it’s the city that controls the litigation,” she said. “It’s our opportunity to lay out the facts the way we see them, as opposed to reacting to someone’s complaint.”
Commission Chair Jean Peelen asked for a motion to authorize Petruff to proceed with drafting a lawsuit to ask for a declaratory judgment.
Titsworth moved to authorize Petruff to proceed and Morton seconded the motion. The motion passed 4-0 with Commissioner David Zaccagnino absent with excuse.