It’s another victory for the city.
The city of Holmes Beach took home a win the week of March 4 as a judge dismissed the owners’ petition to halt the destruction of their treehouse.
Twelfth Circuit Judge Charles Sniffen ruled the owners’ petition was deficient a day after the parties faced off in his Manatee County courtroom.
The judge granted the city’s dismissal motion, reasoning the temporary injunction petition filed by treehouse owners Lynn Tran and Richard Hazen was “deficient in several critical respects.”
Sniffen cited the owners’ failure to allege a factual basis for their concern that imminent harm will befall the treehouse.
His order also states the owners failed to request permanent relief and, to the extent the petition seeks to stop fines, he ruled the owners failed to allege an adequate remedy.
Also, in his ruling, Sniffen allowed Tran and Hazen 20 days to amend their pleadings.
Tran, who represented herself and her husband, said March 8 she is considering filing an amendment to the pleading.
“Because it’s one way to keep the treehouse, I won’t rule it out, Tran said.
“I’m just learning,” she added, saying she believes she needs to allege a cause of action for permanent relief.
It was the first of two proceedings for attorney Jim Dye of Dye, Harrison, Kirkland, Petruff, Pratt & St. Paul, representing Holmes Beach.
A separate March 5 proceeding brought new hearing dates.
Tran argued against Dye’s conclusion the owners’ petition was “rogue,” but Dye said such an injunction must be based on an underlying dispute presented as a separate cause of action.
Dye said Tran should be making her arguments in other ongoing court cases.
The Florida Department of Environmental Protection, like the city, is a defendant in the injunction case.
Kirk White, a DEP attorney, appeared telephonically but did not add to the argument. However, White filed a motion to dismiss similar to the city’s motion.
On March 5, a day after the arguments before Sniffen, David Levin of Icard Merrill of Sarasota took the lead for the owners before Judge Edward Nicholas in two pending treehouse cases — the 2013 owners’ constitutional case and the 2018 city code enforcement case.
Levin and Dye agreed to schedule hearings at 9 a.m. April 29 on the 2013 case; a 3:30 p.m. May 9 hearing to judicially notice prior rulings into the 2018 case and a hearing on the merits of enforcement case at 9:30 a.m. June 3.
In the courts
Dye contends many of the owners’ arguments in the pending cases are no longer valid, having previously been ruled upon in favor of the city.
Pending still are a city action filed in February 2018 to enforce a magistrate’s decision with $50 daily fines, accumulated to $70,000, and the Tran-Hazen 2013 argument that the city’s 50-foot setback is unconstitutional.
The city’s overarching disagreement is that the treehouse was built in violation of the city building code and inside the beachfront setback — a major reason to decline an after-the-fact permit.
The owners have maintained that state law, which allows a more flexible setback, overrides local law.
In the beginning
An anonymous tip in 2011 about the two-story structure in a beachfront pine tree led the city to report the structure to the DEP and later bring the case to its code enforcement board and special magistrate.
Tran and Hazen built the structure with solar power behind their residence at 103 29th St., where they operate Angelinos Sea Lodge, a four-unit short-term rental.
The treehouse is on the beachfront, where the owners put a bollard-and-rope barrier.
In 2012, the owners sought an after-the-fact permit for the treehouse construction from the DEP, but the city refused to sign off on a letter of no objection and the state agency denied the permit in January 2014.
In 2013, the owners challenged the initial code board decision, which was upheld in September 2014 in a 28-page opinion by 12th Circuit Judge Janette Dunnigan.
Other litigation included the owners’ bid by petitioning voters to put the fate of the treehouse on a citywide ballot.
After losing that case in circuit court, the owners appealed to the 2nd District Court of Appeal and the U.S. Supreme Court, both of which declined a review.
Numerous other appeals have resulted in courts siding with the city.
The litigants recently reflected on the long-standing dispute.
“That tree has gotten 8 feet taller since the cases started,” Dye said as he walked out of the courthouse after a March 4 hearing.
The next day owner Lynn Tran agreed with Dye’s assessment, saying the two-story treehouse — built with additional bored pilings — lends structural support to the tree.