The quest to save an illegal tree house in Holmes Beach from demolition is shifting platforms, from city hall to the Manatee County courthouse.
A July date is expected for a judge to hear arguments on whether the beachfront structure — built without permits — can be put to a citywide vote.
At a June 6 summary judgment hearing, Judge Peter Dubensky persuaded the owners’ Sarasota attorney, David Levin, of Icard Merrill, to turn his request for judgment into one for a trial in 30-45 days.
The city of Holmes Beach, represented by Jim Dye of Dye, Deitrich, Petruff and St. Paul, argued a summary judgment was premature because of facts in the dispute.
The owners followed provisions in the city charter in 2013 and filed signed petitions to put the matter — essentially to grandfather the tree house — to a vote of the electorate.
The city then sought a court ruling to deny the vote, claiming an initiative cannot involve development orders.
Levin, on behalf of owners Lynn Tran and Richard Hazen, wanted a judgment to retain the tree house.
Dubensky, a retired judge assigned to the civil case, asked why Levin opted for the finality of a summary ruling, when a trial decision could be appealed.
Levin told the judge he and his clients had “enough confidence” they’d prevail.
“We’re trying to do what we can do to get this issue resolved quickly,” he added, referring to a May 23 city magistrate ruling that levied a $15,350 fine plus $50 per day going forward.
Tran and Hazen built the elaborate two-story elevated structure in 2011 at 103 29th St., at Angelinos Sea Lodge, where they reside and operate four vacation rental units.
Attached to an Australian pine tree, the structure has two elevated decks supported by four pilings.
When the structure was discovered by the city in 2011, a former code enforcement officer alerted the Florida Department of Environmental Protection.
After numerous letters between Levin and the DEP, the state agency denied the owners an after-the-fact permit when the city declined to compromise a 50-foot setback from the erosion control line. The ECL is located approximately at the dune line.
In July 2013, the city code enforcement board fined the tree house owners and demanded the structure become code compliant or removed.
Also in 2013, the owners circulated petitions to put the initiative on the ballot. In August 2013, the city clerk deemed the owners’ petitions sufficient under its charter.
Instead of abiding the charter, passing an ordinance in 60 days to prompt a ballot question, the city filed the declaratory action to invalidate the initiative.
The case sat dormant during the appeal of the code board order.
Dye told the court he expects to call witnesses to testify about the development order at trial.
Levin maintained the tree house is an accessory structure and, as such, development permits are not necessary and a ballot question is proper.
“We’ll get you your hearing and we’ll get it resolved,” said Dubensky.
After the June hearing, Dye said a trial was a good way “to whittle it down as far as it can be whittled down.”
Tran and Hazen attended the June 6 hearing.
“He was sharp and to the point,” Tran said about the judge, adding she sees a trial as “going to another platform.”
She said they face $10,000-$15,000 in attorney’s fees each time the matter goes to a formal proceeding.
Tran estimates legal costs after the code board order appeal ended in 2015 at $100,000.
She also estimated the structure cost $30,000-$50,000 to build.
The city paid $37,506.46 to the Dye law firm as of December 2015, the last bill for the matter on record with the city treasurer.
The city paid the magistrate $3,217.50 for 16.5 hours as of June 9.
Meanwhile, Levin has asked the magistrate to postpone the $50-per-day fine for an appeal.
A magistrate hearing on Levin’s request is set for 9 a.m. Friday, July 1, at Holmes Beach city hall, 5801 Marina Drive.
The trial on the development order-municipal vote will be held at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton.
Before we get all warm and fuzzy about the Tran’s, lets remember the photo of her chasing tourists off the small piece of sand in front of her property during the last beach re-nourishment. Its seemed small and petty to me, as this was the only way for people to walk the beach! Was she afraid they were going to damage something? She built an illegal structure and now is trying to appeal to people’s sympathies, where was her compassion during beach re-building?
I couldn’t help but notice that you describe the tree house as “illegal”. It’s my understanding that when the owners went to the city’s building dept. for permits, before the structure was built, they were told that they did not need them since there were no rules/laws regulating such a structure. So, now the city wants to regulate the structure after the fact. A little like closing the barn door after the cows have walked out, no?
Well, you’ve come to this story rather late. According to a prior court decision, appealed and denied appeal, the tree house was built without permits. And the owners did not disclose the nature of their plans to the building office (in a casual conversation in the hallway at city hall — that this would not be just a kid’s tree house. Also the code board decision went against them as well. The state has jurisdiction over the land seaward of the erosion control line, and as yet there is no state permit. Now heard and reheard by the code board, fined. So it is ILLEGAL. — Bonner