“I’m confident it’s the end of the line.”
That was how Richard Harrison of Tampa, special counsel hired for Holmes Beach now that the treehouse case is on the doorstep of the U.S. Supreme Court, described the case a day before filing the city’s response.
Treehouse owners Lynn Tran and Richard Hazen petitioned the U.S. Supreme Court in October for a writ of certiorari, asking the high court to consider a review of their case.
Harrison’s response to their petition was docketed Nov. 22.
The owners’ underlying case seeks a citywide vote to decide the fate of the treehouse.
Giving rise to their high court appeal, however, is the owners’ claim that 12th Circuit Judge Don T. Hall violated their federal due process rights by rubber-stamping a city-proposed order.
In response, Harrison contends Tran and Hazen could have raised a federal due process claim in Hall’s trial court but failed to do so, and, therefore, the high court should decline the review.
Moreover, argues Harrison, there’s been no due process violation.
At a July 2016 hearing, a month before Hall entered the final order, the judge asked both sides — owners’ attorney, David Levin, and attorney for the city Jim Dye — for proposed orders.
Each attorney tendered a proposed order and Hall entered verbatim the Dye order Aug. 15, 2016.
Dye is a principal in the Bradenton firm of Dye Harrison, a partner of city attorney Patricia Petruff, and unrelated to special counsel Richard Harrison.
The next month, Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg PA of Sarasota, filed an appeal in the Second District Court of Appeals — without first seeking a rehearing on Hall’s verbatim adoption of Dye’s proposed order.
Harrison argues the failure to seek a rehearing should defeat their high court petition.
Two high court cases say there’s nothing “per se improper about signing somebody else’s proposed order,” he said.
Due process is about the opportunity to be heard.
“And there’s no federal case, no due process violation, because under the laws of the state of Florida, they could’ve been heard,” Harrison said.
The two-story treehouse was built in 2011 on the beachfront in an Australian pine tree at 103 29th St., where Tran and Hazen reside and operate Angelinos Sea Lodge.
Tran and Hazen have been ordered to remove the structure since 2013, but they’ve appealed code, court and Florida Department of Environmental Protection decisions.
In the city’s response to the owners’ latest appeal, Harrison points to the owners’ opportunity to raise the due process claim in the five days between their receipt of the proposed order and the judge’s adoption.
“And more importantly,” he wrote, the owners failed to request a rehearing after Hall rubber-stamped the city-proposed order.
Hall’s order forbids the city from abiding by its charter on a petition to grandfather the treehouse by a vote of the electorate. It also adopted the city position that the 2013 state law overrides the charter’s provision to place the treehouse approval on the ballot.
Holmes Beach’s charter allows citizens to present signed petitions asking city commissioners to adopt their initiative in an ordinance and, if the commission fails to do so, requires the city clerk to put the question on the ballot.
Levin has maintained that the law does not pertain to accessory uses, such as the treehouse.
Levin seeks the high court’s discretionary review. But the court receives approximately 7,000-8,000 petitions for a writ of certiorari each term, of which it grants and hears oral arguments in about 80 cases.
Mayor Bob Johnson wrote letters to the couple this summer advising them to apply for a demolition permit and take down the treehouse.
The owners have been accumulating a $50 fee per day since July 22, 2015 as a result of a city magistrate’s code enforcement order.
There is no time limit as to when the court might decide on a review of the treehouse case, but four of nine justices must vote to accept a case.
According to Harrison, if the court decides to take the case, the parties will be notified of a schedule to brief the case “on the merits.”
“Or, what is far more likely,” he said, “with three words, or more likely two words, the court will decline to hear the case.
“At that point it’s over.”