HOLMES BEACH – Code enforcement board members imposed a fee of $100 per day beginning the date of their hearing, Sept. 12, on tree house owners Lynn Tran and Richard Hazen for failure to come into compliance with city code.
The city’s building department has ruled that the tree house at 103 29th Street was constructed without a permit and encroaches into the erosion control line. In July, the board found the couple in violation and ordered them to remove the violations or demolish the structure by Aug. 28, which they did not do.
The fine accumulates until Tran/Hazen come into compliance. They also have two appeals in the courts. One is an appeal of the code enforcement board’s order, which they filed in July.
Another appeal filed in June, maintains that
the city’s ordinance conflicts with Florida Statute regarding construction within 50 feet of the erosion control line (ECL) and that the tree house is an accessory structure that may be located within 50 feet of the ECL.
“Our next step is to file with the court to stop the fine until our appeal is heard,” Tran said, following the decision. “The city said I have to apply for a permit, but they said they won’t give me one because it encroaches into the ECL. It’s a Catch-22.
“If they could give me a permit with conditions, I’d do that or work with us until we get a decision on the ECL. We need some common sense to try and make it work.”
Motion to stay
On Aug. 26, Tran/Hazen’s attorney, David Levin, filed a motion to stay enforcement of the board’s July decision and he tried unsuccessfully to argue that point before the code board last week.
“Under Florida law, when a final order from a lower tribunal is filed with the circuit court, that divests this board from taking any further action,” he said. “We have the right to have the court consider those issues and either uphold or overturn the decision.”
He said to levy a fine would defeat the purpose of the appeal and pointed out, “Her options are to risk the fine until the court rules or tear it down, and to tear it down would be unfair if the court rules in her favor.”
The city’s attorney, Jim Dye, argued that the board still has jurisdiction and said, “There’s been no compliance with the city’s order, and it’s a significant threat to the city. To impose a fine is the best way to get the owner’s attention.”
The board’s attorney, Michael Connolly, agreed with Dye. Board Chair Don Schroder also agreed and noted, “The court can reverse our decision.”
Schroder asked how long it would take to get to court, and Connolly said at least 18 months
The board voted unanimously to deny the stay.
Levin then requested a 30-day continuance, which also was denied.
Connolly told board members that to determine the amount of the fine, they had to consider three factors: the gravity of the violation, any action taken by the violator to correct the violation and any previous violations. Dye said the third one was not applicable.
Building Official Tom O’Brien testified that Tran/Hazen had not come in to apply for a permit to move or demolish the structure and said the structure poses a risk to adjacent structures and properties. Levin objected and said O’Brien has never been to the property to view or inspect the tree house.
“We don’t just go out and inspect property,” O’Brien said. “When a permit application is filed, then we’ll study the documents with it and the make an inspection of the structure to see if it complies with the documents.”
“The owner did contact the building department in an effort to begin the process, but Mr. O’Brien has not been on the site to determine what portions of the structure are not in compliance,” Levin countered.
O’Brien then said the location is the primary violation and added, “Until we solve the location problem, there’s no point in looking at the documents.”
Levin again objected and said, “Now he says it’s not the building code, but the erosion control line, and we’re hearing the we’ll never be able to come into compliance because of the setback.”
Imposing a fine
Dye said the city’s position is that the structure is in violation, that the owners must go through the permit process to cure the violation and there is no evidence they ever started the process.
He argued that the board should impose the maximum fine because “there is a perception on the city’s part that the property owner is not taking this seriously” and “there is a risk to the surrounding property owners.”
Board member Andy Sheridan made a motion to impose a $250 per day fine from Aug. 28 plus any fines and penalties and the city’s costs of $4,271.40.
Board member Michael Klotz objected to the amount and said, “The violation is not that drastic, and they are first time violators. As much as I do agree they are in violation, I think the city could have done more to get that process started.”
Schroder and board members Dick Motzer and John Wize agreed. Schroder suggested giving Tran/Hazen 10 more days to begin the permit process before starting the fine, but O’Brien said 30 days would be more appropriate.
However, Connolly pointed out, “Someone else would have to decide if the condition has been met. That would be a delegation of the board’s authority. I think the board in a public hearing process needs to make that decision.”
Dye added that it would be a new enforcement action.
The board agreed to proceed with only a fine.
Klotz said if that if there is a fine of $50 per day and it runs for 18 months, that would be approximately $30,000 and added, “We shouldn’t lose control of what this structure really is. It’s a structure in a tree and it’s dangerous and not safe, but we have to be reasonable.”
After a motion of $50 per day by Klotz failed, a motion of $100 per day by board member Ted Geeraerts was approved, which would be a $54,000 fine over that 18-month period.