‘Honestly, I don’t know what’s next.’ — tree house owner Lynn Tran
This could be the final challenge for the tree house.
The city of Holmes Beach has won its effort to deny the tree house owners a vote of the city electorate that could have grandfathered the beachfront structure.
The tree house will not have a vote anytime soon.
An Aug. 15 ruling by 12th Circuit Judge Don T. Hall effectively halts the owners’ efforts to salvage the tree house through the ballot box.
The order came one month to the day after the two sides argued the case.
At the end of a July 15 hearing, Hall asked Jim Dye of Dye, Deitrich, Petruff & St. Paul, for the city of Holmes Beach, and David Levin of Icard Merrill for the owners, Lynn Tran and Richard Hazen, to submit proposed orders for the judge’s consideration.
With his signature, Hall adopted Dye’s order.
The order provides the ballot proposal for grandfathering the tree house would constitute a development order, and thus, under state law, the city is “permanently prohibited” from submitting the ordinance to the voters.
“The ordinance, in other words, grants or grants with conditions the development of the tree house, albeit, after the fact,” the order stated.
With the judge’s order, Levin lost his arguments about accessory use exceptions, his clients’ rights, as well as the opportunity for those who signed the petition to vote.
In May 2011, after a city inspector responded during a discussion with Hazen that no permit was needed to build a tree house, Tran and Hazen built the 450- to 500-square-foot two-story tree house attached to an Australian pine with added pilings on the beach at 103 29th St., where they’ve lived since 1999. They also operate four vacation rental units on an adjacent parcel.
An anonymous complaint in November 2011 alerted the city to the tree house construction and, shortly thereafter, the city began code enforcement proceedings.
The city deemed the structure illegal on finding it was constructed without permits and a variance for construction within the city’s 50-foot setback.
In August 2013, Tran and Hazen submitted petitions, signed by a sufficient number of the city’s electorate, to support a city ordinance that would allow the tree house to remain.
When the city denied the proposed ordinance, the city charter required the measure go to the ballot box.
Dye filed a complaint for a declaratory judgment in September 2013, requesting a judge clarify the city’s duty.
Hall’s decision excuses the city from the charter mandate.
The court case is among several court and administrative cases surrounding the tree house since 2011.
Both state and Holmes Beach building permits are required to build near the Gulf of Mexico.
The owners applied for an after-the-fact permit from the Florida Department of Environmental Protection, but without a sign off from the city, the DEP case collapsed.
Tran and Hazen also face a magistrate’s ruling imposing $15,350 in fines and $50 per day as of May 23 for failing to remove or relocate the tree house as first ordered by the city in 2013 — an order Levin has appealed in circuit court.
“It comes as a shock to me that the judge just signed Dye’s order and didn’t make one of his own,” Tran said about Hall’s decision.
“Honestly, I don’t know what’s next,” she added, referring to the possibility of another appeal.
Looking forward, Tran said, even if the proposed ballot vote misses this year’s election, a special election could be ordered.
In an Aug. 18 email, she wrote she was completing a city building permit application “for the two-level tree deck or a chickee/tiki tree hut, and hopefully we can get that approved.”
After the court decision, Dye advised the city clerk in an Aug. 15 email that a court filing to appeal Hall’s order would be due by Sept. 30.
Just another ‘hit’ and win for political norm on what used to be our quaint island! These people have improved their property with no harm to the environment. Yet have spend thousands of dollars defending the lies they were told when they originally asked permission. The City commissioners are a disgrace and you all voted them in, time for change people. Wake up before they allow developers with big bucks to ruin our island. Back and forth to the court system which is no better with seeing the truth. Shame on the legal system throwing the residents under the bus yet again.