Voters won’t be weighing in on grandfathering a beachfront tree house in Holmes Beach if the most recent court decision stays its course.
The newest city win came in early May, when the 2nd District Court of Appeal let stand a lower court order prohibiting a city ballot question based on the petitions of Lynn Tran and Richard Hazen in 2013 under the city charter.
The 2nd DCA affirmation of the 12th Circuit Court came without a decision from the justice panel.
In response, the owners’ attorney, David Levin, of Icard Merrill, filed a motion May 17 for a full rehearing.
The motion seeks a decision from 16 appellate justices of the 2nd DCA.
The attorney handling the tree house cases for the city, Jim Dye, of Dye Deitrich Petruff & St. Paul P.L., wrote a May 18 email to Mayor Bob Johnson, saying such motions have “an astonishing low chance of success.”
“The rule governing a rehearing is strict in that it requires that a new issue is present or the court overlooked something the first go-around,” Dye wrote.
Johnson called the newest legal maneuver “one more phase.”
The tree house is in a towering Australian pine within the 50-foot setback of the erosion control line, seaward of the builders’ home at 103 29 St., where they operate Angelinos Sea Lodge.
Tran and Hazen built the elevated two-story tree house in 2011 without permits. The owners claim former city officials told them permits were not needed.
Tran said May 16 she’ll “wait and see” what her attorney recommends, but added she’s “completely lost faith in the whole system.”
Tran is considering hiring a contractor for a plan to keep the tree house. She’s also looking at selling her property and taking down the tree house.
“I’m considering it all,” Tran said, adding her frustration with new and proposed city ordinances, including rental advertising, occupancy and building rules.
“Life wasn’t like this five to seven years ago,” she added.
Since an anonymous complaint called the beachfront structure to the city’s attention, the Tran-Hazen tree house matters have wound through city code enforcement, state environmental regulators and the courts.
The owners abandoned their Florida Department of Environment Protection case when the city refused to issue a no-objection letter required for state after-the-fact permits.
In July 2013, a city code board fined and ordered the owners to comply with city code or remove the structure.
The decision was upheld by the courts and updated by a special city magistrate, who, in May 2016, assessed the owners a $50 daily fine from July 22, 2015, plus $4,000 in costs. The fine is still accumulating.
With the latest 12th Circuit ruling, Judge Don T. Hall — rubberstamping a proposed order from Dye — determined the petitioned-for ballot question would ask for a development order, and as such, was outlawed by a 2013 state law.
In the order, Hall adopted Dye’s position that the initiative called for a development order because it would ask voters to authorize the construction and maintenance of the tree house.
Levin’s position, however, is the ballot question would not rise to the level of a development order because the structure is an accessory use, incidental to the residence.
Tran submitted an application to the city in September 2016 for a building permit for an accessory structure, a two-level deck.
According to Johnson, a Jan. 18 decision of Holmes Beach building official Jim McGuinness leaves no room for a new plan from Tran and Hazen.
In the decision, McGuinness concluded the “structure cannot be permitted as located and constructed” and the “removal of the existing structure will require a demolition permit.”