Holmes Beach defends tree house order to 2nd DCA

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The tree house was built within the city’s 50-foot setback of the state-established erosion control line, seaward of the Tran-Hazen home at 103 29 St., where they operate Angelinos Sea Lodge.
Holmes Beach Mayor Bob Johnson sits alongside attorney Jim Dye, who represents the city, and attorney for tree house owners, David Levin, sits with his client, Lynn Tran, July 15 in a Manatee County courtroom. The current appeal seeks to overturn the circuit court judge’s July ruling. Islander File Photo: Kathy Prucnell

The tree house is back in the courthouse.

Owners Lynn Tran and Richard Hazen are waging another challenge in the 2nd District Court of Appeal, this time seeking to overturn an August 2016 circuit court order that halted their attempt to grandfather the tree house by putting it to a citywide vote.

Tran-Hazen feel they will have the sympathy of the voters if it eventually goes on the ballot.

The city has filed its response to the tree house appeal that was entered with the 2nd DCA Sept. 8, 2016.

In his Jan. 5 brief, Jim Dye of Dye, Deitrich, Petruff & St. Paul, attorney for the city, defended 12th Circuit Judge Don T. Hall’s decision “to choose the city’s proposed judgment over theirs.”

Attorney David Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., filed the owners’ citywide vote appeal in September 2016, claiming Hall’s order violated his clients’ due process rights and misapplies Florida law.

Hall entered Dye’s prepared order verbatim after asking both attorneys to submit proposed judgments at a July 15 court hearing.

Tran and Hazen built a two-story tree house in an Australian pine in 2011 without city or state permits —though they have maintained in other court cases city building staff gave them a verbal go-ahead.

The city, however, has thus far prevailed in court.

And in May 2016, a Holmes Beach magistrate imposed a fine stands at $12,050 and growing $50 a day until the owners remove the tree house or otherwise comply with city code.

The tree house was built within the city’s 50-foot setback of the state-established erosion control line, seaward of the Tran-Hazen home at 103 29 St., where they operate Angelinos Sea Lodge.

Since an anonymous complaint called the beachfront structure to the city’s attention, tree house cases have wound through city code enforcement, state environmental regulators and the courts.

In the owners’ most recent appeal, Levin argues the “rubber-stamping” of Dye’s order violated his clients’ due process rights because the record fails to support an independent judicial analysis. He contends that creates an “appearance of impropriety.”

Dye disagrees.

“The proper focus is not on whether the court simply adopted one of the parties’ proposed orders, but on whether the process the court used was fair to both parties,” Dye wrote in the appellate brief.

Dye pointed to Levin’s appeal, which states the July 15 trial court hearing was “based on a stipulated set of facts, jointly prepared and presented to the court by both parties.”

Dye’s brief contends the court process, hearing and the judge’s request for proposed orders from both parties led to an independent trial court judgment.

Dye noted Levin could have requested additional time to object to Dye’s proposed order, but did not.

A second point argued in the new appeal, and the crux of the Tran-Hazen case, is how a 2013 Florida law that prohibits initiatives or referenda “in regard to any development order” should be interpreted.

Levin contends the ballot question is not a development order because the tree house is an accessory use, incidental to the residence, excluded by the state statute.

Dye, on the other hand, advocates the matter constitutes a development order because it asks voters “to authorize the construction and maintenance of the so-called tree house.”

Tran said Jan. 11 Levin would be filing a response to Dye’s brief by the end of the month.

The 2nd DCA has not indicated whether it will hear the case.

Meanwhile, as of Jan. 12, the city had yet to respond to Tran’s application for an after-the-fact permit for the tree house.

Tran submitted the application Sept. 30, 2016. She said building official Jim McGuinness advised he would send her his comments, if any, after his review.

Mayor Bob Johnson said he and the city’s building department and legal representatives have discussed the application.

But the mayor referred further comment to McGuinness, who referred The Islander’s inquiries to Susan Corsi, clerk for the building department.

Corsi said Jan. 12 that Tran’s after-the-fact permit application is still being reviewed.

She added it is a “different situation” than the typical residential request and she expects “something more” soon.