Holmes Beach and Richard Hazen and Lynn Tran are preparing for another round of battle over a troubled tree house.
The city Dec. 22 submitted a response to the couple’s request for appeal filed with Florida’s 2nd District Court of Appeal over the noncompliant structure.
Hazen and Tran have been fighting with the city over the tree house built partly in an Australian pine at their vacation rental property, Angelinos Sea Lodge, 2818 Ave. E., Holmes Beach.
In July, the city’s code enforcement board found the tree house to be in violation of several codes including being built beyond the setback and lacking permits for construction.
The case has spent several years trading hands between the code enforcement board and the courts. A circuit court decision in favor of the city led to Hazen and Tran’s filing with the appellate court.
The response — to an order by the court to show cause — was presented by attorneys Jim Dye and Patricia Petruff of Dye, Dietrich, Petruff and St. Paul of Bradenton.
Both parties were ordered to show cause to determine if the court will hear the appeal.
The response countered three main points Hazen and Tran included in their request for appeal. They assert the city’s code requiring construction be 50 feet from the state mandated coastal erosion line on property adjacent to the Gulf of Mexico conflicts with state law.
They go on to argue the circuit court applied the wrong law when making its decision in favor of the city in September 2014. Furthermore, they argue they were not afforded due process, alleging a survey used as evidence by the code enforcement board was unsubstantial.
The city countered their appeal arguments.
“It is unfortunate the Petitioners find themselves in this situation. They did not take advantage of the procedures available to them and discussed at the code enforcement board hearing … The city cannot ignore its enforcement responsibilities and the laws on its books,” stated the response.
The city also said statements in the appeal by Hazen and Tran were inaccurate. The response stated the meeting between the couple and the city building inspector was on the phone and not in person.
It also stated “the statement that the city ordered the tree house be taken down is not fully accurate.”
“It is only if the tree house cannot be constructed in accordance with the city codes will (Hazen and Tran) need to seek a demolition permit and remove the structure.”
According to code enforcement officer David Forbes, the tree the structure is attached to is outside of the allowable setback. They only way for the structure to be in compliance is for it to be granted a variance.
The request made by the District Court of Appeals to show cause from the city does not necessarily mean the court will hear the appeal. The DCA must still decide whether it will hear the case, which could potentially uphold or overturn the trial court’s September 2014 ruling.
A second case filed by the city, still pending, asks the court to declare null and void a petition and referendum, submitted to the city by Hazen and Tran following the initial finding of violation by the code board in September 2013.
The petition included signatures of 10 percent of the city’s voters, which forced a commission vote on an ordinance that would grandfather the tree house. The forced vote failed, however, lacking a second to the motion made in October 2013.
A referendum was then filed that would put the fate of the tree house on a ballot in a special election.
If allowed, voters of Holmes Beach would make the call on keeping or removing the tree house.
Petruff filed for a declaratory judgment in the 12th Judicial Circuit Court that would kill the referendum.