The tree house in Holmes Beach lives for another day in the 2nd District Court of Appeal.
A motion e-filed June 24 by the tree house owners’ attorney, David Levin of Sarasota, seeks the issuance of a written opinion and certification to the Florida Supreme Court.
The city of Holmes Beach is expected to file a response. And the appellate judges who declined to hear the tree house case June 12 will consider it a second time.
City attorney Patricia Petruff told Mayor Bob Johnson in a June 15 email that she doubted the success of such a motion.
The dispute over the tree house at 103 29th St. came to the forefront in November 2011 after an anonymous beach walker complained about construction on the beach and the city issued a notice of violation to the owners, Richard Hazen and Lynn Tran.
The notice led to code enforcement board rulings in July 2013 that require code compliance and, if not possible, the removal of the beachfront structure.
In September 2014, a 27-page opinion by 12th Circuit Judge Janette Dunnigan sided with the city.
In the owners’ latest motion, Levin argues that Dunnigan misinterpreted state law by:
• Failing to consider the city’s setbacks prohibit that which is authorized by state.
• Not applying the proper test to the owners’ reliance on the city’s initial direction that a tree house did not require permits.
• Relying on hearsay evidence — a survey that located the tree house inside the established erosion control line’s 50-foot setback.
After the appellate court’s June 12 decision, attorney Jim Dye of Dye, Deitrich, Petruff & St. Paul, who has been handling the city’s tree house litigation, began advising the commissioners about what was needed to bring the property into compliance and close the file.
However, considering Levin’s most recent motion in the appellate court, Dye said June 26 he again needs to consult with his clients.
Levin’s motion is the owners’ last chance with the appellate court case, according to Dye.
However, other tree house cases remain unresolved.
A lower court case is pending on the city’s effort to halt the Levin’s request for a citywide referendum on the issue of grandfathering the tree house.
Another case, where the tree house owners are “taking a second bite at the apple” by seeking a court declaration that the city setbacks are illegal, may also be pending, Dye said.