One treehouse case is branching off from the federal to the county courthouse.
A month after the city of Holmes Beach removed the case to the U.S. District Court-Middle District of Florida in Tampa, the treehouse owners dropped their federal claims and are poised to push the case back to the 12th Circuit Court at the Manatee County Judicial Center.
Owners Lynn Tran and Richard Hazen, represented by Sarasota attorney David Levin, of Icard Merrill, filed a new pleading July 16, followed by an “unopposed” motion — having consulted with the city’s representatives for the case, the law firm of Trask Daigneault of Clearwater, who agreed to remand the case to state court the next day.
The case was one of two treehouse cases in federal court as of July 26. Two similar cases are pending in the 12th Circuit.
Tran and Hazen live and operate four short-term rental units at 103 29th St., where they built the beachfront structure in an Australian pine tree without city or state permits.
In the latest federal complaint — leading to the move back to state court — the owners are continuing to challenge a city setback as preempted by state law, but “deleted all allegations and references to the U.S. Constitution, leaving only allegations pertaining to state law claims,” according to the owners’ motion to remand.
Attorney Jay Daigneault of Trask Daigneault said he would not oppose the move back to state court.
“The case was removed based on federal questions. Now it’s purely a matter of state law. There’s no sense in being obstinate,” Daigneault said July 25.
The treehouse litigation, dating back to 2013, centers on the structure’s location within the city setback for the state erosion-control line. The line was established to divide public and private property based on the high-mean tide line.
A permanent high-tide line was established by the state in 1992 prior to a beach renourishment project.
The owners claim the setback is an unconstitutional property rights taking. The city contends the issue was already decided and cannot be relitigated based on a legal doctrine known as the finality of judgments or res judicata.
In state court earlier this year, 12th Circuit Judge Edward Nicholas ruled he would hear the state constitutional challenge — the to-be remanded case — before a city-initiated case to enforce 2013 and 2016 code board and magistrate decisions calling for the structure’s removal and fines.
The dispute began in 2011 after an anonymous complaint alerted the city to construction on the beach. The city referred the complaint to the Florida Department of Environmental Protection, which came back to the city for a letter of no objection.
In July 2013, the code board ordered Tran and Hazen to remove the structure, a decision that was revisited by a special magistrate who, in 2016, fined the owners $50 a day dating to July 2015 — now at more than $73,250.
Judge Janette Dunnigan, now retired, upheld the code enforcement decisions against constitutional challenge.
She ruled against the owners’ arguments on the unconstitutionality of the city setback and reprimanded city officials for giving bad advice — although there were no building plans or applications — before Tran and Hazen built the treehouse without permits.
The owners opened another front in state court in 2013, petitioning for a citywide vote to grandfather the treehouse, which was lost on appeal to the U.S. Supreme Court. In January 2018, the high court declined to review a circuit court decision based on a state statute that prohibits referenda and initiatives relating to development orders.
In addition to the pending constitutional and city code enforcement cases, ongoing treehouse litigation as of July 26 involves two cases opened by the owners — without an attorney — in 2018.
In a state court case, an amended verified complaint alleges negligence and violation of rights and seeks injunctive relief and unspecified money damages against the city and DEP.
In that case, Judge Charles Sniffin is expected to hear city and DEP motions to dismiss Sept. 10 at the Manatee County Judicial Center, 1051 Manatee Ave. W., Bradenton.
On the owners’ third amended complaint, alleging similar claims against the city in federal court, a city motion is pending. That motion claims the latest pleading tries to advance claims that were or could have been litigated in previous cases and, “in the interest of finality,” asks for dismissal with prejudice.
U.S. District Judge James Moody is expected to rule on that motion without a hearing.
Tran told The Islander in a July 26 email she plans to continue her fight to protect her treehouse and property rights and will continue challenging what she calls the city’s unreasonable fines.
She also promised, “More soon.”
Having gone through the arduous, lengthy, and expensive process of building a home within the coastal construction line I feel no sympathy for someone who skirts all laws ad building codes and builds a “treehouse” without permits. I have had to pay surveyors, DEP consultants, engineers and designers to accomplish what they thought was possible with a passing conversation at the building department! Certainly a right thinking person would have brought some sort of plan to the building department before constructing this structure. I can actually see where a building official might sign off on a tree house that a few ten year olds with six 2 x 4″s and some rope might throw up in an Australian pine, but what they built was NOT THAT!
E.D. (I know what that stands for,) you’ll do NOTHING, except continue to be an armchair politician! Just sayin’!
When is enough, enough? Break the laws and keep battling as if they are in the right. NOOOOOO, they are not! If I have to read much more about the obstinate nature of these two selfish people, I am going to start looking for someone with a giant chainsaw. Just sayin’!
Maybe there was a guy who worked for Holmes Beach in the building division that thought it would be ok and said so. People in the building department say and do all kinds of things and people who meet with them hear and think all kinds of things too. If he gave it to them in writing, which is what permits are, they would be in good shape in court. I have never heard of that being the case here. They never win in court. It’s about time to enforce the intent of the law before everyone else decides to build one too. Although they must have a pretty good lawyer to have dragged things out this long.
“Tran and Hazen live and operate four short-term rental units at 103 29th St., where they built the beachfront structure in an Australian pine tree without city or state permits.” My wife and I have been staying at “Angelino’s” since before the treehouse was built. The year that it was finished, we were told by Ms. Tran and Mr. Hazen that they went to the Building Dept. At the time the head of the Building Dept. said that as there were no rules pertaining to such a structure it would be OK for them to build the treehouse. Soon after the gentleman retired and the new head of the Building Dept. started this issue of the treehouse being built w/o city or state permits. In the meantime, it has withstood any and all storms and structurally will continue to do so.
Dear Pollyana: Obviously, you’ve heard one side of this story from the treehouse peeps and have not caught up on past court decisions — against them at every juncture. The city of HB does not approve building any sort of structure (windows, solar power, decor, furniture) based on a casual question from a citizen passing through a hallway. It requires engineering, site plan, drawings, and it needs to meet code. No drawings, sketches or plans were shown to the building official when his off-hand comment was elicited. It’s all costing taxpayers — property owners — too much. Should two selfish citizens outweigh the greater number who abide the law? — Bonner