Treehouse owners Lynn Tran and Richard Hazen are hoping for another day in court — the U.S. Supreme Court.
Tran and Hazen built the two-story beachfront treehouse in 2011 at 103 29th St., where they reside and operate four vacation units known as Angelinos Sea Lodge.
Their attorney, David M. Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg PA of Sarasota, filed a petition Oct. 23 to reverse 12th Circuit Judge Don T. Hall’s order denying the treehouse a place on a city ballot.
Hall’s 2016 order reinforced the city’s position and prohibited it from adhering to a charter provision that would have allowed a citywide vote to grandfather the treehouse, which was built without permits.
The charter allows citizens to present signed petitions seeking the city commission to enact an ordinance and, if the commission fails to enact it, requires the city clerk to place the initiative as a question on the ballot.
Tran and Hazen have been under orders to remove the structure as a result of court, code and Florida Department of Environmental Protection decisions — with increasing pressure from the city this summer to apply for a demolition permit.
In response, Levin wrote to the mayor in August, saying the demolition application was premature because of his intent to file the Supreme Court petition.
Tran said she realizes the slim chance the Supreme Court will take the case, but added, “it’s worth a try because we’re not in the wrong.”
Florida’s 2nd Court of Appeal twice declined to hear the Hazen-Tran appeal.
In the high-court petition, Levin attacks Hall’s verbatim adoption of a city-recommended order as a failure of due process under the 14th Amendment.
He contends the process fails to comport with case law requiring the appearance and reality of neutrality, fairness and impartial tribunal.
Levin also states “the direct consequence” of Hall’s order “will be the involuntary demolition of the petitioners’ accessory improvement upon their real property.”
Attorney Richard A. Harrison of Tampa, special counsel for the city of Holmes Beach, has been retained to respond to Levin’s petition.
Jim Dye, attorney with Bradenton’s Dye Harrison, principal in the same firm as city attorney Patricia Petruff, has handled the treehouse litigation since 2013.
He said Oct. 26 that regardless of the appeal, “nothing is stayed” and the owners are “still under orders” to remove the treehouse, with a $50 fee per day accumulating since July 22, 2015.
Tran objects to how the city has treated the treehouse.
“It was OK to begin with,” she said, referring to building staff advising them the treehouse needed no permit, but “then building officials turn over and they disagree.”
“I say don’t take my treehouse over (the disagreement),” she added.
Tran also points to the initial approvals when she submitted the petition for a ballot question, saying, “it was an OK petition to begin with.”
The petition was filed properly but, according to the city position and Hall’s order, it contradicted state law that prohibits “development orders” from going on a ballot.
According to the order and the city, the proposed ballot question should be considered an illegal development order under a 2013 state law because it proposed to construct and maintain the treehouse.
Levin maintains the ballot question is not a development order because the structure is an accessory, an incidental use to their residence.
In the petition, Levin said Hall’s final order contains evidence the judge “may not have read” the order.
“There can be no clearer example of a judicial decision which fails to satisfy the appearance of justice,” wrote Levin.
The U.S. Supreme Court website states the high court typically takes discretionary cases with national significance, to harmonize conflicting decisions in federal circuit courts or those with possible precedential value.”
Of about 7,000 cases submitted for review annually, the justices accept 100-150.
Four of nine justices must vote to accept a case.
A city response to the owners’ high court petition is due Nov. 22.
A first for the city, a tree-high appeal
The first case against an island city to reach the U.S. Supreme Court is likely to be focused on a controversial treehouse.
Asked if the case would be a first for the city if accepted by the high court, Mayor Bob Johnson said at least as far as he knows, “and I know about the last three years,” he said, referring to his length of time as mayor.
“It’s pretty doubtful though. Things don’t go to the Supreme Court without basis,” the mayor added.
City attorney Patricia Petruff agrees.
To Petruff’s knowledge, there’s been no other high-court petition filed against the city.
The city was incorporated in 1950.
Petruff and her law firm have served as city attorney since “prior to 1978,” deputy clerk Lori Kee said.
David Levin, attorney for the treehouse owners, frames the issue as: “Whether the Circuit Court of the 12th Judicial Circuit in and for Manatee County, Florida, violated the petitioners due process rights under the 14th Amendment of the Constitution when it entered verbatim, as its final order, respondent’s proposed final order, without prior announcement as to how said lower tribunal would rule and without any evidence in the record that the final order was entered following a thoughtful and independent analysis of the facts, issues, and law by said lower tribunal.”
Levin argues it did in his submission to the court.
The city is expected to respond by Nov. 22.