A decade of litigation surrounding a controversial Holmes Beach treehouse may be nearing a conclusion.
12th Judicial Circuit Judge Edward Nicholas issued his final order Jan. 20, ruling in favor of the city on all counts in a 2013 lawsuit regarding the constitutionality of city codes enacting setback restrictions which prohibit the treehouse.
Property owners Richard Hazen and Lynn Tran-Hazen’s third amended complaint in the case included four counts.
The first count claimed ordinance 07-04 fails to comply with the Florida Constitution, which mandates, “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title,” since the code addresses “four separate and distinct subjects.”
The city argued the state constitution’s “single-subject” statute applies to the state Legislature, not municipal ordinances, and regardless, the ordinance did not violate it.
Nicholas wrote in his ruling that municipal ordinances were not exempt from the single-subject statute but the ordinance at question “so clearly does not violate” the requirement.
“The bottom line is that the ordinance does, in fact, ‘embrace but one subject and matters properly connected therewith;’ the language is not confusing or misleading, and the title is reasonably sufficient to inform the public of the essence and scope of the adopted changes,” Nicholas wrote.
The second count claimed ordinance 07-04 violates state due process laws since its title “fails to fairly appraise the people of the substance of the proposed legislation,” so it “must be deemed null and void.”
Nicholas wrote that the argument was “wholly without merit” and “simply unpersuasive.”
“It cannot be reasonably said that the city violated plaintiff’s procedural due process rights,” Nicholas wrote. “This is not a close call.”
The third count claimed ordinance 07-04 prohibits all construction landward of the erosion control line without any provision for a variance, reducing the value of property and thus a facial violation of the state’s due process laws.
The city argued that code “allows for limited development within the area landward of the erosion control line, just not the kind plaintiffs desire.”
Nicholas agreed with the city, writing that the code “does not completely bar coastal development, either landward or seaward” and is reasonable for “furthering the city’s legitimate objectives” such as regulating coastal development.
“The court finds the limitations in ordinance 07-04 of certain structures, such as a large treehouse attached to an Australian pine tree, within 50 feet of the erosion control line is certainly not unreasonable, arbitrary, or capricious,” he wrote.
The fourth and final count claimed ordinance 07-04 conflicts with state law since it prohibits development within 50 feet landward of the erosion control line “without any regard as to whether such structures qualify for a permit from the FDEP or are otherwise exempt from permitting requirements.”
Nicholas cited a September 2014 ruling in which the ordinance was found to be consistent with state law since it allowed exemptions for construction of certain structures upon proper permitting.
The ruling did not include an order to remove the treehouse but may have implications for two remaining cases:
- The city of Holmes Beach v. property owners filed in 2018, asking the court to enforce the code board’s order to remove the treehouse and pay the assessed fines;
- Property owners v. the Florida Department of Environmental Protection, filed in 2018, asking the court to temporarily prevent the treehouse’s removal and stop the assessment of “excessive” daily fines.
Both cases have gone quiet in recent years.
In the city v. Hazens case, no actions have been filed since Nicholas issued an order imposing a temporary stay of proceedings in March 2022.
A hearing hasn’t been held for the case since November 2019 and no upcoming hearings were scheduled as of Jan. 28.
In the property owners v. DEP case, the parties filed a joint stipulation in November 2022 to abate the lawsuit while discussing a potential settlement.
This dispute entered the court in December 2018, when the owners sued Holmes Beach and the DEP for a temporary injunction to stop the accumulation of fines and prevent the removal of the treehouse.
The city was dismissed from the case in July 2021.
The joint stipulation for abatement indicated a settlement between the property owners and DEP may be on the horizon, but may be dependent on the results of the 2013 lawsuit.
The property owners and DEP representatives are on the court calendar to discuss a trial date in a case management hearing at 10:30 a.m. Friday, Feb. 3, at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton.
Directions to attend the hearing via Zoom can be found on the Manatee County Clerk of Court’s website, records.manateeclerk.com.
Treehouse. How did we get here?
The roots of Holmes Beach treehouse controversy run more than a decade deep.
Lynn Tran-Hazen and Richard Hazen reside at 2818 Ave. E., Holmes Beach, where they operate four vacation rental units as the Angelinos Sea Lodge.
The treehouse was first brought to the city’s attention in November 2011, when an anonymous complaint was filed about construction behind Angelinos.
The city argued the structure was built inside a 50-foot setback for the erosion control line and without a permit, violating the municipality’s land development code.
The city code board ruled in July 2013 to fine the owners and order them to comply with code or remove the structure.
The ruling was upheld in the 12th District Circuit Court in 2014 and in the Second District Court of Appeals in 2015.
The U.S. Supreme Court has denied two petitions to hear the case.
Litigation has cost both the city and the treehouse property owners hundreds of thousands of dollars.
A special magistrate updated the code board’s order in 2016 to additionally assess the owners a $50 daily fine that began July 22, 2015.
A magistrate also ruled in April 2021 to fine the owners $125 per day from March 18, 2021, until they obtain a valid vacation rental license through the city for the units at Angelinos.
So far, more than $222,475 in total fines have accrued against the property owners, adding to a litigation bill in excess of $170,000.
However, the property continues to be used as a vacation rental, with a $165 per night cost for a 4-night stay April 28-May 2 in one of its four cottages as of Jan. 28, according to angelsealodge.com.
Litigation has cost the city about $200,000, according to city treasurer Lori Hill.
— Ryan Paice