The newest appeal waged by the owners of a controversial tree house in Holmes Beach claims a “rubber-stamped” order from a circuit court justice violates their due process.
Lynn Tran and Richard Hazen registered their due process objection in an appeals court — and pointed to an “appearance of impropriety” created by 12th Circuit Judge Don T. Hall when he adopted an attorney-prepared order “verbatim.”
The disputed July 15 order denied the owners a vote on the fate of their beachfront tree house at 103 29th St.
Tran and Hazen have been fighting the city over code violations after an anonymous complaint in November 2011 alerted the city to an elaborate, elevated two-story structure that was being built in a large Australian pine on the beach.
The city initially challenged the bid for a vote of the electorate to grandfather the tree house from Tran-Hazen after they filed a petition to invoke the city charter’s citizen initiative.
The due process argument is one of two reasons set forth by the owners’ Sarasota attorney, David Levin, of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., in a brief filed Nov. 30 with the 2nd District Court of Appeal. It requires “judicial decisions be reached by a means that preserves both the appearance and reality of fairness.”
Levin bolstered his argument, citing a Florida Supreme Court decision that recognizes a judge may benefit from attorney-prepared findings and conclusions but they can’t substitute for judicial analysis.
Levin also argues there is “nothing in the record to suggest the trial judge independently made factual findings and legal conclusions.”
The second point Levin argues in his brief claims the disputed order misapplies a 2013 state law, which prohibits an initiative or referendum process in regard to any development order.
The legislation outlaws ballot questions that challenge local development decisions. And the city charter arguably allows such citizen initiatives.
Levin called for the 2nd DCA to reverse Hall’s Aug. 15 order or interpret the statute, which he claims does not apply to restrict citizen-petitioned initiatives for accessory structures like the tree house.
The city has 20 days to reply to Levin’s brief, but Jim Dye, handling the tree house legal work for the city, said Levin agreed to a later due date.
Dye had no comment Dec. 7 on Levin’s appeal.
Hall’s order and Levin’s appeal come after a July hearing on a “final judgment” ordered by Circuit Court Judge Peter Dubensky.
At the July 15 hearing before Hall, at which no witness testified, Levin and Dye stated their cases and submitted seven pages of stipulated facts. Hall — the third in a line of judges on the case — requested a proposed order from each attorney.
Levin’s most recent appeal may be the final run for Tran and Hazen to save the tree house since the controversy began in 2011 over the non-permitted structure.
Litigation was first filed in the 12th Circuit Court in 2013.
In one suit, the owners challenged a city code board decision that ordered them to remove the structure or correct violations, including the tree house’s 20-foot encroachment into the city setback, and pay $4,241 for city fines and costs.
After a review, Judge Janette Dunnigan upheld the code board decision.
Further code proceedings were held in May 2016 to update the fine and a special magistrate hit Tran and Hazen with a $50 daily fine from July 22, 2015, a fine which, as of Dec. 14, had reached $27,050.
Meanwhile, Sept. 30, Tran filed for an after-the-fact accessory structure permit from the city.
Despite a building department policy for a 30-day turn-around on residential applications, building official Jim McGuinness has not responded to Tran’s application. Several messages left by The Islander in November regarding the application are yet unanswered.
McGuinness was on vacation until Dec. 8. According to public works clerk Susan Corsi, still pending are legal questions about Tran’s application.
In the permit application, Tran submitted documents on the materials used, construction photos, a December 2011 survey, engineering plans dated Aug. 28 noting conformance to the Florida Building Code, as well as stamped engineering plans. Sketches drawn by Hazen also were included.
Tran estimates the project cost $28,000 to build, but says other costs, such as surveys and engineering, have pushed the costs as high as $50,000.
Tran estimates attorney’s fees at $10,000-$20,000 per proceeding, which she says she pays with credit.
On Nov. 21, the city reported the Dye firm was paid $76,935.94 as of Nov. 7. The city also paid $3,276 to a magistrate.
