Like the classic ketchup commercial, the tree house is making us wait.
If pending motions are heard in the 12th Circuit Court, a judge may have the final say in whether voters will be allowed to determine the fate of a beachfront tree house in Holmes Beach.
A recent letter from the owners’ civil rights attorney indicates the tree house also may branch into federal court.
On the other hand, a settlement could be in the works.
Owners Lynn Tran and Richard Hazen have spent three years trying to save their beachfront tree house and spent more than $100,000 in legal fees. They say they spent $30,000-$50,000 building it.
Tran said she and her husband are footing the bill.
However, people have told The Islander they have made “donations” to the tree house cause, either to save the tree house or save the tree.
City treasurer Lori Hill reports that as of December 2015 the city has $37,506.46 in legal costs.
City attorney Patty Petruff and her partner, Jim Dye, of Dye, Deitrich, Petruff & St. Paul of Bradenton have represented the city on the matter.
In 2011, Tran and Hazen built the tree house in an Australian pine tree — with two elevated observation decks, removable windows and solar paneling on the beachfront where they own and operate a “lodge.”
The Hazens have resided at the property since 1999 and operate four vacation rentals on adjoining parcels as Angelinos Sea Lodge, 103 29th St.
The tree is about 89 inches in diameter, 120-feet tall and believed to be still growing. The tree house also is supported by four pilings.
Before construction, Hazen inquired of a city official and was told there were no regulations for constructing a tree house, according to court records.
If the court allows the citizen vote, Tran hopes it will turn around a July 2013 Holmes Beach code board order to remove or demolish the tree house.
The owners exhausted their appeal of the code board decision after courts upheld it in 2014 and 2015. The Florida Department of Environmental Protection reviewed the case and denied a permit in January 2014.
The latest court battle rekindles the September 2013 city-initiated litigation.
The city contends the petition concerns a development order and, under a 2013 state law, can’t be put to a vote, and the city clerk should be excused from putting it on the ballot.
In February, the owners’ attorney, David M. Levin, of Icard, Merrill, Cullis, Timm, Furen & Ginsburg of Sarasota, piggybacked on the city complaint, asking the court to rule, albeit for the tree house owners.
With a 17-page motion, he argued the tree house is an ancillary structure and, as such, the initiative is not about a development order. He also contends the city should carry out its charter and place the question on a municipal ballot.
Dye responded on behalf of the city with a Feb. 29 motion to strike the owners’ motion.
According to Dye, Levin’s motion and Tran’s supporting affidavit “are so intertwined with material from outside the record, and in violation of basic summary judgment standards, that it is impossible for plaintiff to respond to it.”
On March 1, Levin filed a 197-page notice, including court decisions, legislative history and provisions of the city charter.
On March 7, the city asked the owners for documents related to the DEP file.
The case was previously assigned to Judge John Lakin, who retired in March.
A senior judge or another circuit judge is expected to be assigned when a hearing is set.
In preparing for the anticipated tree house proceedings, Dye asked building official Jim McGuinness to inspect the structure.
On Jan. 28, HBPD Chief Bill Tokajer, code enforcement officer JT Thomas and McGuinness visited the property.
Thomas said he hopes the owners realize the damage the structure could cause in hurricanes and comply with the July 2013 code board order.
McGuinness performed the inspection, including inside the tree house, and issued a report.
The Islander requested the inspection report but was denied based on the Sunshine Law attorney-work-product exemption.
In March 2014, a judge halted code board fines of $100 a day during the owners’ appeal.
In addition to the court hearing, a city magistrate proceeding may be set to consider the re-imposition of fines for the tree house, as the appeal case has been exhausted.
Tran said the penalties the owners face don’t give them much choice — but to fight.
“We don’t want to destroy our property. This tree house isn’t hurting anybody. It’s always been our liability,” she added.
Holmes Beach warned of
2nd tree house lawsuit
“Danger, Will Robinson! Danger!” Or so the line goes from the 1960s TV comedy, “Lost in Space.”
In this case, a Tallahassee attorney for beachfront tree house owners in Holmes Beach has threatened a federal court battle against city officials for performing “official acts.”
In a March 26 letter, attorney Bruce Minnick of the Minnick Law Firm notified city clerk Stacey Johnston the city allegedly committed federal civil rights violations, injuring Lynn Tran and Richard Hazen or their property.
A six-month prior notice for the suit is required, according to Minnick, who quoted from a state sovereign immunity law.
He described the dispute as being “at the center of enormous public controversy for at least the last two years.”
The notice will give city officials time to investigate “and hopefully find an amicable solution to this unnecessary dispute before very costly federal court litigation is undertaken,” Minnick wrote.
Should it stay or should it go?
Will the voters decide?
If the infamous Holmes Beach tree house goes to a vote, the ballot question would ask voters to weigh in on the tree house based on a proposed city ordinance.
In April 2013, the tree house owners, Richard Hazen and Lynn Tran, started an informal petition — not aimed at voter signatures — that gathered 5,000 supportive signatures.
In June 2013, a petitioners’ committee submitted a proposed ordinance.
City clerk Stacey Johnson certified the initiative petition as “sufficient” in August 2013.
According to the city charter, the commission was required to consider the proposed initiative ordinance. Failing to adopt it without change within 60 days, the commission was to submit the proposed ordinance to the voters, but instead sought court review.
The proposed ordinance states:
“A. Notwithstanding any provision contained within the city of Holmes Beach code of ordinances to the contrary, the city commission does hereby authorize the construction and maintenance of the so-called tree house upon 103 29th St., Holmes Beach, Florida.
B. The tree house shall not be used by customers of Angelinos Sea Lodge.
C. The owners shall be required to record in the public records of Manatee County, Florida, a full release or similar document, indemnifying and holding the city of Holmes Beach harmless from any and all claims for injury and/or property damages resulting from the construction and use of the subject tree house. Failure to record such a release or similar document within 60 days of the effective date of this ordinance shall cause the automatic repeal of this ordinance.”