“Now it’s almost a prison instead of a getaway.” — Lynn Tran
“It is hard enough for a citizen to literally fight city hall,” is how the treehouse owners’ U.S. Supreme Court plea begins.
It ends with attorney David Levin asking the high court to review the case and, in the alternative, for a redo — to vacate a 2nd District Court of Appeal decision that left a lower court order in place.
The owners ask to have the case sent back to the trial court.
The high court is set to consider their request at a Jan. 5 conference.
Treehouse owners Lynn Tran and Richard Hazen reached the highest court after taking on and losing to the city of Holmes Beach, the Florida Department of Environmental Protection and Florida courts.
Their petition for writ of certiorari challenges the 12th Circuit Judge Don T. Hall’s order, adopting a city’s proposed order verbatim, on due process grounds.
The couple built an elaborate treehouse with two aboveground decks in 2011 around an Australian pine tree, steps from the owner’s home at Angelinos Sea Lodge, 103 29th St., a four-unit short term rental property. They built it for their personal use, a place to read and relax, without obtaining permits from the city or state.
Throughout the proceedings, Tran said, they’ve followed the rules and believe Holmes Beach officials led them astray with verbal assurances the city code didn’t apply to a treehouse.
“It’s just frustrating,” Tran said, criticizing how the rules have changed — being told no permit was needed. She claims the city backtracked on the permit and again on city charter, after they gathered and submitted signatures for a ballot question, only to be told the charter rule didn’t apply.
Levin, of Icard, Merrill, Cullis, Timm, Furen & Ginsburg in Sarasota, Tran and Hazen’s attorney since 2011, brought their Supreme Court petition for writ of certiorari forward in October.
The petition challenges a trial court order that was upheld by the 2nd DCA. The order was prepared by attorney Jim Dye, a principal in city attorney Patricia Petruff’s firm, Dye Harrison, after Hall asked both sides to submit proposed orders to conclude a July 2016 hearing.
Hall’s order adopted the city’s order, including its position that a 2013 state law against development orders nullified the owners’ charter initiative.
Levin has maintained that the law does not pertain to accessory uses, such as the treehouse.
In the reply brief filed Dec. 5, Levin attacks Hall’s verbatim adoption of Dye’s proposed order as “no clearer example” of a litigant’s due process rights under the 14th Amendment.
“To allow this error to stand uncorrected will seriously affect the fairness, integrity or public reputation of judicial,” Levin wrote in the reply brief.
Tampa attorney Richard A. Harrison, special counsel for the city of Holmes Beach, contends the treehouse owners had opportunities to raise the federal due process arguments earlier, but failed to do so.
In the reply brief, Levin cries foul.
“To deny a citizen’s access to the U.S. Supreme Court because pleadings before lower state courts failed to mention the 14th Amendment in connection with its claim of denial of due process, as argued by the respondent, would also be unjust,” he wrote.
While the owners await word from the Supreme Court, Tran said they’re still using the treehouse as they intended.
“We built it in the beginning because we wanted to enjoy the view as a getaway,” Tran said.
“You’re trying to do something nice on your property, and then this. You almost feel like a criminal.
“Now it’s almost a prison instead of a getaway,” she added.
Turning back to possibility of the high court hearing their case, she said, “We’re thinking we’ll get a fair hearing.”