Whether voters in Holmes Beach will be asked to weigh in on an unpermitted, beachfront tree house is in the hands of 12th Circuit Judge Don T. Hall.
After an hour of courtroom arguments July 15 in Bradenton, the judge asked attorney Jim Dye, representing the city of Holmes Beach, and David Levin, representing tree house owners Lynn Tran and Richard Hazen, to prepare proposed orders for his consideration.
Dye rested his argument on state law, which provides “an initiative or referendum process in regard to any development order is prohibited.”
What constitutes a development order or permit is “the nut we’re here to crack,” Dye told the judge.
In lieu of witness testimony, Levin and Dye stipulated to six pages of facts in a case that began in 2011 when Hazen and Tran built a 500-square-foot, two-story tree house, supported by four pilings and an Australian pine tree.
The tree stands 20-feet seaward of the Hazen-Tran home and Angelino’s Sea Lodge, a four-unit rental accommodation at 103 29th St., and 30 feet from the beach — in the city’s 50-foot setback from the erosion control line.
In April or May 2011, they asked a former building inspector if the city regulated tree houses and were told permits were not required, according to the parties’ stipulated facts.
Subsequently, no city or state permits were obtained. In November 2011, the city received an anonymous complaint about the construction activity and several years of city and state environmental enforcement ensued.
Hazen-Tran availed themselves of the initiative process in the city charter and began gathering signatures and petitioning the city in 2013. When it reached the city commission, a motion to adopt the ordinance died for lack of a second.
Lacking a vote on the ordinance to allow the tree house, the process calls for a petition that the owners believe should put the matter to the city electorate.
But the city filed the declaratory suit asking the judge to decide.
At the July 15 hearing, Dye said the parties agreed the tree house is an accessory or recreational facility in R-4 zoning.
Under city rules, Dye conceded, the accessory use falls into an exception for development permits.
However, once the tree house owners began to “construct” it, Dye told the court “the use” became subject to the city’s development process and the state law prohibiting initiatives on development orders.
Levin argued that how the citizen’s initiative intersects with the development order prohibition law is one of “first impression.”
He told the court the state law was intended to address third party challenges, such as a case where an environmental group petitioned for a vote to reverse a city development approval — not to stop small property owners such as Hazen and Tran in their quest to acquire an after-the-fact permit.
Hall said he would make a decision on the declaratory judgment case after receiving the attorneys’ proposed orders, which are due to him by the end of July.
In May, the city’s magistrate, Kelly M. Fernandez, ordered Hazen-Tran pay $15,350 in fines and $50 per day until deemed in compliance by the city for failing to abide by a 2013 code board decision, which included an order to remove or relocate the tree house.
Levin appealed the magistrate’s fine May 25.
After the hearing, Tran said she has been working with the city to determine the necessary applications to retain the tree house.
“We made our case,” Mayor Bob Johnson said.
Dye added he was confident of being on the winning side.
Levin said the city’s interpretation runs afoul of one of the “purest of rights in a democracy.”
Another Hazen-Tran tree house case remains inactive on the books. In it, Levin asks the court to prevent the city from enforcing its codes against the tree house owners because they relied on city officials advice, which led them to believe permits were unnecessary. That case also seeks damages in excess of $15,000.
The owners say they have spent more than $100,000 on tree house construction and attorneys’ fees.
The city paid $37,506.46 for tree house legal matters to the Dye law firm as of December 2015, but no further invoices have been received for the tree house legal work.