DEP responds to treehouse owners, files for dismissal

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A woman gazes from the beach toward the treehouse — the subject of numerous lawsuits — that fronts the home of Lynn Tran and Richard Hazen at 29th Street in Holmes Beach. Islander Photo: Kathy Prucnell

The march from the beachfront treehouse to the courthouse continues.

With a motion filed April 4 by Kirk S. White, DEP assistant deputy general counsel, the Florida Department of Environmental Protection is asking the 12th Circuit Court in Manatee County to dismiss the amended complaint Lynn Tran and Richard Hazen filed in March alleging negligence, injunctive relief and violation of rights against the city of Holmes Beach and the DEP.

And in lieu of the dismissal, the state regulatory agency asks the court to order a more definitive statement from Tran and Hazen.

An anonymous complaint in 2011 alerted Holmes Beach officials to the construction of the treehouse in a large Australian pine at 103 29th St.

The city referred the matter to the DEP due to possible dune destruction and a state setback violation. The owners attempted to negotiate an after-the-fact permit with the DEP, but were turned away after the city refused to waive its 50-foot setback.

In a seven-page court paper, the DEP seeks to dismiss Tran-Hazen’s amended complaint, saying the couple failed to allege the necessary elements of equal protection, abuse of process and negligence counts.

The DEP claims Tran and Hazen failed to point out similarly situated applicants required for the equal protection claim or to allege how the DEP abused the process or acted negligently.

In other counts of their amended complaint, the DEP motion states Tran and Hazen failed to flesh out how the Beach Nourishment Act implicitly created a contract between the state and beachfront owners.

The DEP asks that the court dismiss all counts, including claims of a breach of fiduciary duty, misrepresentation, trespass, defamation, emotional distress and excessive punishment.

In March, the owners filed a similar complaint in U.S. District Court Middle District in Tampa, alleging the same underlying facts, but alternate causes.

Attorney Jay Daigneault of the Clearwater law firm Trask Daigneault — assigned by the Florida League of Cities’ insurance carrier — will defend the city against the case filed by Tran and Hazen.

Jim Dye of Dye, Harrison, Kirkland, Petruff, Pratt & St. Paul, the city attorney Patricia Petruff’s firm, who has handled the treehouse cases since 2013, said Florida Municipal Insurance Trust hires the attorney to represent the city when damages are alleged — as Tran and Hazen have done in both the federal and the latest state court filings.

Daigneault said April 12 he is getting up to speed on the years of treehouse litigation, plans to meet with Dye and expects to ask Tran for an extension to respond to her federal and state amended complaints.

Dye will continue to represent the city in the other pending treehouse cases.

Pending is the city’s enforcement case filed in February 2018 and a constitutional case filed in 2013 for Tran-Hazen by attorney David Levin of the law firm, Icard Merrill of Sarasota.

The city is looking for the court to enforce the 2016 city magistrate order that required the treehouse removed and imposed a $50 per day fine, which has accumulated to more than $67,000.

In the other pending case, the couple represented by Levin is arguing that the city’s 50-foot setback from the mean high-water line is unconstitutional and superseded by state law.

Tran said April 12 she is reading, researching and getting ready for the litigation — “just busy doing that, sometimes staying up until two in the morning.”

Spokeswoman Shannon Herbon said the DEP is working with the court to set a date on its motion to dismiss, but, as of April 12, a hearing had not been set.

The next state hearing for the treehouse in the constitutional case is set for 9 a.m. Monday, April 29, at the Manatee County Judicial Center, 1051 Manatee Ave., W., Bradenton.

The city’s 2018 enforcement case is set for May 9 and June 3 hearings.

The federal proceedings will be held in the Sam M. Gibbons U.S. Courthouse, 801 N. Florida Ave., Tampa.

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