Tree house owners found little mercy last week from members of the Holmes Beach Code Enforcement Board.
At its Sept. 12 meeting, the board imposed a $100 per day fine on Richard Hazen and Lynn Tran until such time the couple brings into compliance what the city has deemed illegal construction — a tree house at Angelinos Sea Lodge, 103 29th St.
The code board ruled on July 30 that the structure was built in violation of the erosion control line setback and that the couple built the structure without permits.
In the July ruling, the board gave the accommodation owners 30 days to make a viable attempt to work with the city to bring the structure into compliance by beginning the permit process, even though the tree house cannot remain beyond the erosion control line.
Building official Tom O’Brien said no effort was made to begin the permit process and, after much discussion on how much of a fine to levy, the board voted 5-1 immediately to implement the $100-per-day fine.
Hazen and Tran’s attorney, David Levin, of Sarasota, motioned for a stay at the start of the Sept. 12 quasi-judicial hearing, arguing that the code enforcement board no longer had jurisdiction since its ruling of violations are now under appeal in circuit court.
“Quite frankly, we were surprised it was necessary to file the stay,” said Levin. “You aren’t a court. There are limitations to your jurisdiction.”
Levin cited a 1985 case, Hudson v. Hoffman, where the court ruled that once a notice of appeal was filed in circuit court, it removed jurisdictional authority from the lower court.
Levin said it would be unjust to levy a penalty until the appeal is resolved. Levin filed for a declaratory judgment from the court, seeking to declare the city’s ordinance unconstitutional.
He is arguing that the city’s policy to deny a variance or special exception for building seaward of the erosion control line is contradictory to state law, which does allow for special exceptions.
“You don’t have the jurisdiction to take any further action until after the appeal,” said Levin.
Attorney Jim Dye, representing the city, disagreed and said the Hudson v. Hoffman case did not apply.
Dye said the Sept. 12 hearing was a separate process from the July 30 ruling.
“Under statutes that set up code boards, this board still has jurisdiction at the proceedings today,” said Dye. “If the hearing did not go forward, the code board was missing an opportunity to say, ‘We take violations of our codes seriously’ … that is exercising local policy in its purest form.”
Levin disagreed, saying the law is the law and “just as the city is trying to maintain the law against the Hazens, I would submit that the city has to follow the law that protects citizens like the Hazens.”
Code enforcement board member Andy Sheridan moved to deny the motion for a stay. Richard Motzer seconded the motion, which passed unanimously.
Levin then asked for a continuance, but the board denied the request 5-1, with John Wize voting in favor of the continuance.
The board considered three factors: What was the gravity of the violation? Did the violators make an effort to correct the violation? Did they have a history of other violations?
The board ruled out the latter, as Hazen and Tran do not have a history of other violations. So at stake was the gravity of the violation and whether or not they made an effort to comply to the July 30 order.
The code enforcement board had the option to impose a fine from no fine up to $250 a day based on the criteria.
O’Brien testified that the gravity of the violation was serious, considering the risk the structure poses to neighboring property owners as an unsafe structure at the mercy of storms.
On whether Hazen and Tran made an attempt to correct the violation, Tran said she hired a second attorney familiar with construction to work with O’Brien and that O’Brien refused to meet with her attorney at the tree house.
Tran’s frustration was apparent during her testimony, as she recapped events since 2011 where she claims she was told they didn’t need a permit to build a tree house, then told she did need a permit and has since been asked to submit information that initially needed to be done before any construction began.
“I brought a sketch in earlier this year and the city didn’t want to look at it,” said Tran. “We had three commissioners in our neighborhood and asked them, and they told us we didn’t need a permit. Now you ask us to go back two years later to do a drawing. DEP accepted our drawing, but you won’t.”
Tran said she was willing to do anything the city wanted to do in order to move forward, “but no one will come out and look at it.”
Tran said they are being treated like they just built a three-story home on the beach.
“It’s a tree house,” she said. “How big of a drawing do you need? If you would rather us build a three-story house, we are willing to do that. Come out and look at it before you make a judgment.”
Tran pointed out that the city is well aware of a number of nonconforming structures on the island.
“You have more worries than a tree house,” she said. “We are willing to do what it takes for an after-the-fact permit, but we never violated any codes, we were misled by a city official. The goal of government is to help us. We relied on your help.”
Tran said the couple has spent more than $40,000 on the code enforcement process alone and she is ready to tear the tree house down, but is holding out hope that something can be resolved.
Levin closed by saying that Hazen and Tran did everything they could to fix a problem created by the city and has continued to work with the city in good faith.
But Dye asked for the maximum fine of $250 per day. “The city doesn’t typically ask for the maximum penalty on a first offense, but the threat from this structure from a storm is real and there is an indication that they aren’t taking these proceedings seriously,” he said.
Sheridan moved to impose the maximum fine, but some other board members said $250 was too high.
Michael Klotz said the tree house is a violation, but not “drastic,” also noting they are first-time violators.
Motzer agreed: “I’m concerned with the fact of where the failure comes about and whether that lies with the city or owners. I do believe … both sides could have been better communicators.”
Wize again questioned the penalty when the owners were pursuing their rights through the court system.
“They have a right to due process and, while they are going through that process, we are putting a penalty on them,” he said. “Are we hindering that due process? That’s why I voted for the continuance.”
The board discussed other options before settling on the $100-per-day fine.
Wize was the sole dissenter in the 5-1 vote to impose the fine. The tree house owners will continue to be charged $100 per day until the structure comes into compliance or is removed.
A court of appeals will determine the legality of the city’s ordinance and, in the meantime, the city is initiating its own court action to deny the petition process, which could lead to a public vote on whether the tree house should be grandfathered.
However, grandfathering the illegal structure is unlikely, because a local ordinance cannot be created that is contrary to state law, which would be the result if the referendum outcome favored keeping the tree house.