Tree house owners Lynn Tran and Richard Hazen have registered their newest appeal.
Sarasota attorney David Levin set in motion Sept. 6 another round in the 2nd District Court of Appeal after losing a circuit court battle in July and the issuance of an Aug. 15 order.
This time the owners hope to overturn 12th Circuit Court Judge Don T. Hall’s order that sided with the city of Holmes Beach and stymied their effort to legalize the tree house through a citywide vote.
The tree house was built by Tran and Hazen in 2011 without city or state permits at 103 29th St., Holmes Beach.
In the order, the judge “permanently prohibited” the city from putting the question on a ballot.
In past appeals, Levin challenged a 2013 code board decision that ordered either code compliance or removal and fines to the 12th Circuit and then to the 2nd DCA — only to be turned down for a hearing several times in 2015 by the DCA.
The owners’ newest appeal attacks a case initially brought by the city for a declaratory judgment.
Tran and Hazen filed a petition signed by voters invoking the city charter’s citizen-initiative, giving the commission the option of grandfathering the tree house or putting it on the ballot.
The motion died without a second and, in September 2013, attorney Jim Dye of Dye, Deitrich, Petruff & St. Paul, on behalf of the city, asked the court for direction to bypass its charter.
The city pointed to a state law enacted in 2013 to prohibit ballot-box decisions on development orders.
Hall rejected Levin’s arguments and agreed with Dye, that an initiative vote would violate the statute.
Levin had argued the law was not meant to stop a small property owner, such as his clients, from seeking an after-the-fact permit, but rather came about to halt third-party challengers, like environmental groups, from seeking to reverse city development orders.
The problems for the tree house owners began in 2011, after Tran and Hazen claimed they had a conversation with a building official who said no rules apply to a tree house, although they did not discuss the extent of their plans. They proceeded to build a 450-square-foot, two-story tree house in an Australian pine at 103 29th St., where they reside and operate four rental units.
In November 2011, the owners were cited with a notice of violation for failing to obtain a city building permit and encroaching on the city’s 50-foot setback.
The city also notified the Florida Department of Environmental Protection, which advised the owners to remove or modify the tree house, built without the necessary coastal permits.
Tran and Hazen next tried to obtain an after-the-fact permit from the DEP, but the city refused to give them a DEP-required letter of no objection.
In September 2014, 12th Circuit Judge Janette Dunnigan affirmed the code board’s 2013 order requiring compliance or demolition and fines, leading to the owners’ unsuccessful appeals to the DCA.
In May, the tree house clock was reset by a city magistrate, who ordered $15,350 plus $50 per day until the compliance is achieved. On Sept. 21, the owners’ penalty stood at $21,400 — and growing.
Levin filed an appeal of the magistrate’s decision May 25 but, Tran said Sept. 13, they’ve decided not to challenge the city decision at this time.
Tran also said she intends to seek a permit for a two-level tree deck from the city.
She said Hurricane Hermine caused “a bit of delay” in her efforts, but that she expects to submit the application, engineering and drainage plans in a couple weeks.
Building official Jim McGuinness said Sept. 14, “I haven’t seen anything yet.”
Fighting to save or remove tree house, at what cost?
Win, lose or settle, as a general rule, attorneys get paid.
Now in its third year of litigation, the tree house in Holmes Beach has pitted the law firms of Dye, Deitrich, Petruff & St. Paul of Bradenton against Icard Merrill of Sarasota.
Treasurer Lori Hill reports the Dye firm had billed the city $75,512.44 as of July 31, inclusive of attorneys’ fees and court costs.
The previous Dye bill paid by the city came in December 2015 and, at that time, the tab was at $39,261, according to city records.
Patty Petruff is the Holmes Beach city attorney but partner Jim Dye holds the reins on the tree house matters.
The city also paid $3,276 to city magistrate Kelly Fernandez, who reviewed the tree house in May for compliance to a prior city code enforcement order.
Tree house owner Lynn Tran estimates she and husband Richard Hazen paid Icard Merrill attorney David Levin about $10,000-$20,000 for each proceeding in court or before the city. She says they’ve paid attorneys fees with credit cards.
Also a cost to the owners was the $30,000-$50,000 spent to construct the beachfront structure.
The attorneys have worked on Florida Department of Environmental Protection Agency issues and hearings before the city code enforcement board and Fernandez, the 12th Circuit Court and the 2nd District Court of Appeal.