Just as the fate of the treehouse couldn’t seem bleaker — losing in the U.S. Supreme Court and facing an enforcement action to demolish the structure — its owners are back on the offensive, restoking a case dormant since 2013.
“It’s a constitutional case now,” said Lynn Tran, who, with husband Richard Hazen, built the beachfront structure in 2011 in an Australian pine on the beachfront.
Tran and Hazen reside at 103 29th St., Holmes Beach, where they also operate four short-term vacation rental units.
The owners’ attorney, David Levin, of Icard Merrill of Sarasota, filed a motion for a summary judgment March 13, asking the 12th Circuit Court to declare a city ordinance on the setback “null and void in its entirety,” or to strike such portions that conflict with state law.
The treehouse was built in the setback for the erosion control line on the beach, where, according to state law, no construction can occur.
The motion argues the city overstepped its constitutional powers by imposing a 50-foot setback and enacting a local law with more than one subject.
State laws governing beach and shoreline preservation, including activities seaward of the coastal construction control line not causing “measurable interference,” leave no room for Holmes Beach to regulate the treehouse, according to Levin’s motion.
“The city of Holmes Beach Code clearly forbids structures which the Florida Legislature has authorized under section 161.053(11)(b),” he writes.
In addition, Levin argues the ordinance improperly contains “four separate and distinct subjects,” running afoul of a state law limiting local laws to one subject. The ordinance contains a comprehensive amendment, including the setback regulation, and several changes in zoning for individual properties.
Since July 2013, Tran and Hazen have been under city code and magistrate orders to remove the treehouse and pay a $50 a day assessment effective July 22, 2015, which is still accumulating and estimated at more than $50,000.
As far as the city enforcement suit, Tran said she hasn’t been served with it, and believes the enforcement action should be put on hold until the constitutional case is decided.
Tran called the setback “a big point of contention.”
The owners previously argued the setbacks before 12th Circuit Judge Jannette Dunnigan, who, in 2014, upheld the board’s decision.
The owners sent the case to the 2nd District Court of Appeal, which declined a review.
The city is expected to respond to Levin’s motion the week of March 19, according to attorney Jim Dye, a principal in Dye Harrison with city attorney Patricia Petruff. Dye has handled the city’s treehouse matter since 2013.
Dye said March 16 in a phone call with The Islander, this newest case “looks very familiar, and it’s already been raised and rejected by Judge Dunnigan and the 2nd DCA.”
He also said Levin’s argument contending state law “leaves no room for the city’s ordinance” is “wrong.” State law requires the state “to work together” with municipalities, Dye said.
He added that Tran and Hazen appear to be “ducking service” on the enforcement action the city filed in February.
The owners’ losses also include the case they attempted to have heard by the U.S. Supreme Court, which declined to hear the matter in January.