To abate can mean to lessen, set aside, put on the back burner, void or nullify.
And in the context of the treehouse owners’ most recent motion in court, Jim Dye, the attorney handling the dispute over the beachfront structure for Holmes Beach since 2013, sees it as a delay tactic.
From the very start, attorney David Levin has pulled out the legal stops for owners Lynn Tran and Richard Hazen in their quest to save the treehouse they built without permits in 2011.
The latest move by the attorney from Icard Merrill of Sarasota seeks to abate the action filed by Holmes Beach in February to enforce its code decisions.
A 2013 code board decision, as modified by a special magistrate, ordered the owners to remove the treehouse and pay a $50 a day assessment effective July 22, 2015. The fine is accumulating and estimated at more than $50,000.
Levin’s abatement request filed March 23 points to a 2013 treehouse case he reactivated 10 days earlier with a summary judgment motion asking the 12th Circuit Court to declare a city setback unconstitutional.
The summary motion argues the city setback is unconstitutional because it’s a matter usurped by the state — an already litigated issue and wrong, according to Dye, principal in the Dye, Harrison law firm, along with Holmes Beach city attorney Patricia Petruff.
In the abatement motion, Levin said, another pending action “is a well-recognized ground’ to abate a subsequent action.
“In my view, it’s a slight of hand to shift the view over to something five years old … with some of the things already decided in Judge (Janette) Dunnigan’s decision,” Dye said in a March 29 interview.
The treehouse owners’ losses include Dunnigan’s 2014 decision upholding the code board and the constitutionality of the setback, which Levin took to the 2nd District Court of Appeal and lost.
Another treehouse case brought in the 12th Circuit ended in January with the U.S. Supreme Court declining a review.
The owners claimed they did not receive a fair hearing when a judge rubber-stamped a city order preventing a citywide vote to grandfather the treehouse.
The couple built the beachfront structure in an Australian pine at 103 29th St., where they reside and operate four short-term rental units as Angelinos Sea Lodge. The treehouse was built within state and city setbacks of the erosion control line, 20 feet seaward of their home and 30 feet east of the ECL.
Prior to constructing it, the owners say they were told by city officials they didn’t need permits, but that argument was aired and also failed in court.
Dye will be responding to both the abatement and summary judgment motions in the two cases assigned to Judge Lon Arend.
He added the setback doesn’t preclude a treehouse elsewhere on the property.
“The city’s position has always been if they’d come in with a proper plan,” with the proper engineering and permits, “we’ll work with you,” Dye said.