A tree house is often a childhood memory of lazy summer afternoons — but not in Holmes Beach. It’s the tree house that has withstood many arguments.
And it’s teetering with the 2nd District Court of Appeal after the city of Holmes Beach filed a response July 6 asking the court to deny the owners’ requests for a written opinion and certification to the Florida Supreme Court.
On June 12, the 2nd DCA announced it had declined to hear the petition of tree house owners, Richard Hazen and Lynn Tran.
However, with their attorney’s requests for reconsideration and the city’s response, the case is sent back to the jurists for a second go-around. The 2nd DCA could review and give an opinion, or again decline.
Hazen and Tran spent $30,000-$50,000 building the beachfront tree house at their vacation rental property at 103 29th St.
The construction began after the spring of 2011 after the owners had asked city officials if permits for a tree house were required. At that time, city officials told them no.
The owners constructed a 400-500 square-foot two-story tree house, with concrete pilings and elevated decks, attached to an Australian pine — without state or city permits.
In January 2014, the Florida Department of Environmental Protection denied their coastal construction control line permit application
The city issued a notice of violation in November 2011. Two years later, the Holmes Beach Code Enforcement Board ruled that the tree house owners violated city building codes — a decision since upheld by the 12th Judicial Circuit Court.
Their attorney, David Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, of Sarasota, hopes to turn around the September 2014 decision by Judge Janette Dunnigan that sided with the city board on fines, code compliance and a requirement for its removal if compliance was not possible.
In his brief, James D. Dye of Dye, Dietrich, Petruff & St. Paul, P.L., of Bradenton, argued against Levin’s requests.
He wrote the owners failed to present “a compelling argument that the Florida Supreme Court is likely to grant review” and instead re-argue “original points which the court declined to review.”
Legal arguments now before the 2nd DCA center on three points:
• Setbacks. Levin argues that Dunnigan misinterpreted state law by failing to consider the city setback prohibits what is authorized by state.
In his response, Dye counters, “Local regulations and state law work together in addressing coastal construction issues.”
• Equity. Levin contends the court erred by not making a specific finding on whether Tran and Hazen in good faith relied on Holmes Beach officials’ initial information about a tree house not requiring permits.
Dye argues the equity test was met by a finding that the owners’ reliance on “informal and superficial interaction” with the city officials was “unreasonable.”
• Survey. Levin disputes a survey that located the tree house in relation to the erosion control line. He argues Dunnigan upheld the code board findings “solely on the basis of hearsay, the unsigned, unsealed survey.”
In Dye’s response, he disagrees and points to supporting testimony of the city’s former building official, Tom O’Brien, and the owners, who had provided the survey and testified as to the location of the Australian pine.
Levin’s motion is the owners’ last chance with the appellate court, according to Dye.
Still pending in circuit court, however, are two other tree house cases.
One was filed by the city in September 2013 to stop a citywide referendum on grandfathering the tree house.
A citizens committee, including the owners, petitioned the city to put the question on the ballot. The petition was deemed sufficient in August 2013 after the signatures verified by Holmes Beach city clerk.
Another case was filed in June 2013 by Levin, seeking a trial court declaration that the city setbacks were illegal.
LETTER TO THE EDITOR
Will there be justice?
Pay attention: This is not just about our tree house. The issues that we present to the courts are of concern to many citizens, property owners and businesses.
An American dream, our Robinson Crusoe like beach tree house, is still at risk of demolition.
The court denied our appeal, thus upheld the circuit court’s ruling, sending us back to the city of Holmes Beach. However, the court’s decision is not final. We have filed a motion for rehearing, seeking ground for review by the Florida Supreme Court. The DCA can change its prior ruling, issue an opinion, a certification to the supreme court or reject our request. In its response to our filing, the city of Holmes Beach has asked the court to deny our motion.
The issues that we asked the courts to reconsider are:
• Did the court imply that city codes can preempt state laws and local government can override and prevent Florida Department of Environmental Protection authority?
City codes prohibit the use of 50 feet of privately owned beachfront land for any construction other than seawalls, dune walkovers and similar structures solely for the protection of existing buildings, while state laws allow for construction of many other types of structures within this 50 feet for enjoyment and other purposes. Our beach tree house is within this 50 feet prohibition by the city. This means the loss of use of 50 feet of land for many beachfront property owners.
If you have a standard, 100-foot-deep beachfront lot, you might not be able to build much of anything when taking into account side setback, front setback and the loss due to beach nourishment program if the property crosses the erosion control line. In our opinion, the 50-feet prohibition serves no purpose other than an insidious taking of private property rights via local zoning, restrictions and prohibition that the city claims they have the right to do.
Who told you that in the United States, your property are protected and safe from government? Who said all shall be treated equally?
In addition, per state law, some structures could be exempted from permitting requirements. But even if the state agency would issue a letter of exemption or state permit, they can’t do it or it is no good. Why? Because the city objects and insists that the local land development codes prevail.
• Did the district court agree to the change in existing law by the circuit court? The circuit court judge denied to grandfather the tree house based on “unreasonableness” versus the established “act in good faith” test of the well-established legal doctrine of equitable estoppel. This legal principle bars a party from asserting a legal action that is contrary or inconsistent with his or her prior conduct.
We went and asked for permitting but were told “no permit is needed” in 2011. The fact that the city objected to the state permit and said we need a city permit two years later in 2013, that the city officials admitted in their testimonies that some structure do not need permit, that state law exempts some structures from permitting requirements, that the city said the official gave us wrong advice and he has since been reprimanded tell you all you need to know.
We listened to our city officials and did our part in good faith. How would a homeowner know to look into a land development code book if he or she is not developing land? Is it reasonable to ask unlicensed homeowners to question and challenge the city building official interpretation of codes?
• Can hearsay alone sufficient to find guilt? Take heed, people. It could be you facing code enforcement. Thousands of citizens are prosecuted based on hearsay alone due to some inconsistencies and gaps in laws. All that is needed is for someone to cite some provisions buried in thousands of pages of codes, even though the codes do not apply in your particular situation. If you think your home is 100 percent compliant to codes you don’t even know exist, think again.
All that is required to convict you is a piece of paper marked up with no date, no signature and photos taken of your property without your knowledge and consent. Believe this is true, it happened to us. They cited us with numerous violations, without a proper onsite inspection, measurement and evidence. That’s not to mention, the numerous false allegations that we had to defend along the way and never get to court. Gosh, we even got cited for good deed like manually raking the beach in front of us to remove cigarettes butts, bottles, broken glasses and trash for all to enjoy.
We have high hopes that there will be justice and the tree house will be safe from demolition, but with the recent denial by the DCA, that possibility seems out of reach for the moment. The court denial is equivalent to a near death sentence for our beautiful tree house, loss of property rights and blessing to burdensome code enforcement practices. We’d like to believe that this is not the end with justice. And yes, there is still an open possibility for a referendum or petition to let the public decide.
Good or bad, the tree house will set a precedent. Beware as to who and what you want to prevail as the laws apply to you all as well.
Lynn Tran, Holmes Beach