hts the erosion control line in pink while a shaded red circle represents what the city alleges is an illegal tree house at Angelinos Sea Lodge, 103 29th St., Holmes Beach. Islander Photos: Mark Young
Attorney David Levin represents resort-owners Richard Hazen and Lynn Tran at a July 30 Holmes Beach code enforcement hearing.
Former Holmes Beach building official Bob Shaffer testifies at a July 30 code enforcement hearing.
Holmes Beach building official Tom O’Brien presents evidence July 30 alleging code violations were committed when a tree house was built without a permit.
“We’ve gone through hell for this long. Please, let us have it and stop this nonsense,” said an emotional Lynn Tran of her tree house at a July 30 Holmes Beach Code Enforcement Board hearing.
The hearing was held to discuss alleged violations of a tree house built at Angelinos Sea Lodge, 103 29th St.
Code enforcement board members, in three separate motions, unanimously voted to violate owners Tran and Richard Hazen for building within the erosion control line, violating the erosion control line setback and building without a permit.
The board ordered Tran and Hazen to pay the costs of the July 30 hearing, pay all fines up to date and an additional cost of $4,271 for staff preparation time to prosecute the violations.
The board also unanimously voted to dismiss a separate allegation of manipulating the natural dune system on the property’s beachfront.
Tran presented counter evidence of the couple making an effort to restore the dune that was absent when they purchased the property in 1999 and said the 2012 Tropical Storm Debby had eroded the dune.
The board gave the resort owners until Aug. 28 to make an effort to bring the structure into compliance, meaning Tran and Hazen must begin the permit process if they want to keep the tree house.
However, because the board found the owners violated the erosion control setback, the structure cannot remain at its current location.
Should the couple be unable to bring the structure into compliance, Tran and Hazen were given the same time frame to file for a demolition permit.
While the city won a major battle in the dispute, the war is not over.
Attorney David Levin, of Icard Merrill of Sarasota, representing the resort owners, spent the first hour of the 9-hour hearing arguing for a continuance, but was unsuccessful.
Levin was successful in blocking engineering testimony because his engineering witness was unable to testify and any related testimony would violate his clients’ due process.
City officials acknowledged that the alleged engineering violations were irrelevant to the heart of their case, which was the location of the structure and that it was built without a permit.
“This is a simple case of construction next to the Gulf of Mexico without a permit,” said attorney Jim Dye, representing the city. “Unpermitted construction of this scale in this location creates a lot of violations.”
The city filed 37 violations in total, but most of them involved engineering violations. Levin argued that the city has never inspected the structure to arrive at those concerns.
Building official Tom O’Brien said there was a good reason for that.
“We never received a site plan,” he said.
The resort owners began construction in 2011. Hazen testified that he met with former building official Bob Shaffer and was given verbal permission to proceed without a permit.
Hazen said when he made contact with Shaffer he had no idea what he wanted to build, but wanted guidance on city regulations.
“I got an appointment and a secretary showed me to the front office where Shaffer was standing with about four other officials,” said Hazen. “I said that I’d like to build a tree house in the Australian pine tree on my property and asked what I needed to do.”
Hazen said Shaffer froze for a moment and turned to the other officials in the room.
“He turned back around and said there’s nothing in the books,” said Hazen. “All he said was ‘Make it safe and don’t let anyone fall out of it.’ I was happy. He smiled, and I was out the door.”
Hazen testified he was prepared to do anything the city wanted him to do to pursue his vision and, after receiving verbal permission, construction commenced within a week.
Dye cross-examined Hazen about whether or not he applied for a permit and Hazen reiterated that he received verbal permission.
“He stopped me dead and said there is nothing in the books,” said Hazen. “What was I supposed to do? Wrestle him down?”
Hazen was asked if at some point when the structure reached two levels, 500 square feet and had multiple windows if he thought that maybe he should have realized the project was going well beyond his original description.
“It’s just a tree house,” said Hazen.
Levin, during cross-examination of O’Brien entered into evidence a report from code enforcement officer David Forbes. Within that report, Forbes refers to the couple being given verbal permission by a former building official.
Levin also presented an Islander newspaper article quoting Shaffer as saying he had no objections because he thought it was a tree house he would build as a kid.
Levin asked if it was possible for two different building officials to come to a different opinion of what needs a permit and what doesn’t.
O’Brien testified that a building official can only make a decision based on the information provided, “or lack thereof.”
Shaffer only made a statement about a tree house not being in the codes based on the lack of information provided by Hazen, and Hazen bears the burden of responsibility to provide it, according to O’Brien.
Dye asked O’Brien during re-direct whether the city has a policy in place regarding casual conversations binding the city.
O’Brien said the city’s land development code states that verbal statements or comments by a building official or any representative of the city shall not be considered official interpretations of the LDC.
“And any individuals that proceed on that basis shall do so at their own risk,” said O’Brien.
Shaffer testified to the meeting with Hazen, saying his recollection of the informal encounter was one via telephone.
Shaffer said when the tree house began appearing in newspaper articles, “I wondered if I had made a mistake, but I never gave him permission.”
Levin argued that a mistake was made, but the mistake was made by the city and his clients should not bear the burden of responsibility for that mistake.
But O’Brien’s testimony of the LDC regulations that cannot bind the city to an official’s casual comments appeared to be enough information for the code enforcement board to reject Levin’s argument that his clients were given verbal permission to build without a permit.
Tree house battle not over
The emotional tree house saga has not concluded with a code enforcement ruling, and the battle to save the structure is not over.
Tran and Hazen have filed a petition with the required number of Holmes Beach registered voters — 332 or 10 percent — to save the tree house.
The petition, currently being verified by the Manatee County Supervisor of Elections Office, will force commissioners to vote on whether or not to grandfather the tree house and allow it to remain.
Commissioners previously indicated they would vote to deny the petition, at which time the matter will go to the voters.
However, even if the election is successful, state law forbids a local municipality from creating an ordinance that is contradictory to state law. A local municipality can strengthen a state law, but state law will supersede a weaker local law, making it virtually impossible for the city to create an ordinance to allow the tree house seaward of the erosion control line.
However, the process must continue.
So must the process in an after-the-fact permit to allow the structure applied for with the Florida Department of Environmental Protection.
If DEP issues that permit, it would pave the way to allow the resort owners to better work with the city. However, in order to issue an after-the-fact permit, DEP requires a letter of no objection from the city.
According to city officials, such a letter is not forthcoming.
In a final attempt to save the tree house, Levin said he has filed a case with the 12th Circuit Court that alleges the city has violated its own land regulations.
Levin contends that while Holmes Beach enjoys home rule, “that authority is not unlimited.”
He argued that the state allows a number of exceptions for construction within the 50-foot setback of the erosion control line.
“The city’s codes, however, provide that no structure can be constructed within 50 feet and that there is no authority to pursue a variance,” he said.
Levin said his clients will comply with the city’s request to begin working in good faith, but given the number of outside factors still in play, “The process can start, but will likely stay in limbo for some time.”