The 2nd District Court of Appeal won’t take the bait.
On July 17, the court denied a hearing and written opinion, as requested by attorney David Levin of Icard Merrill of Sarasota for Holmes Beach tree house owners Lynn Tran and Richard Hazen. They had hoped the court would overturn a lower court decision and allow them to bring the fate of the structure to a citywide vote.
Tran and Hazen built the two-story beachfront tree house in an Australian pine tree in 2011 at 103 29th St., Holmes Beach, where they reside and operate Angelinos Sea Lodge.
The tree house matter now reverts to the city’s prior code orders, according to Holmes Beach Mayor Bob Johnson.
“Where we are now is where we were before they brought it,” he said, adding the 2nd DCA’s denial “is an excellent thing” and he “fully expected it to happen.”
“It” would be the collection of fines and removal of the tree house.
The mayor and city clerk Stacey Johnston said they expect to meet with Jim Dye of Dye, Deitrich, Petruff and St. Paul, the attorney handling the tree house legal matters for the city, in the next few weeks to discuss a plan to enforce the prior orders, which include fines and the removal of the tree house.
“Our lawyers are looking into all options at this time,” Tran wrote in a July 19 email to The Islander.
Since an anonymous complaint first reported the structure in 2011, the tree house has been the subject of proceedings before the city code board, Florida Department of Environmental Protection and the courts, including two decisions in the 12 Circuit Court that were appealed to the 2nd DCA.
In the most recent appeal, at issue was whether the owners could place a question asking voters to retain the tree house on a city ballot.
Twelfth Circuit Judge Don T. Hall in August 2016 decided the ballot question was prohibited because it asked for a development order and, as such, it was outlawed by a 2013 state law.
In making the ruling, Hall rubber-stamped a proposed order submitted by Dye.
Throughout the case, Levin argued the tree house was an accessory use, not rising to the level of a development order, and he objected to Hall’s rubberstamping, saying it lacked the appearance of a fair hearing.
The 2nd DCA denial ends the second appeal by Tran and Hazen with a win for the city.
The first city victory came after a July 2013 code board fined and ordered the owners to comply with city code or remove the structure — a ruling upheld by a 27-page circuit court decision in September 2014 and later by the appellate court.
The owners say they built the structure after city officials initially told them permits weren’t needed.
The city has maintained the structure violated its land-development code, including the 50-foot setback for the erosion control line — a winning argument in the 2014 court decision, which the 2nd DCA affirmed in 2015 without providing a written opinion.
In May 2016, the code board’s order was updated by a special city magistrate, who assessed the owners a $50 daily fine starting July 22, 2015 — a fine that is still accumulating. The magistrate’s order also noted $4,271 in costs Tran and Hazen contested, without ruling on them.
Tran submitted an after-the-fact application in September 2016 for a building permit, but building official Jim McGuinness concluded the tree house could not be permitted.
With options running out for Tran and Hazen, the city is looking for closure.
