BRADENTON – It was a win and a loss for both sides during a Jan. 8 hearing in Judge Edward Nicholas’ courtroom on the tree house case.
New to the case, Nicholas dismissed the City of Holmes Beach’s motion to default, an attempt to push the case to a trial, and the tree house owners’ motion to abate, saying the move wasn’t warranted at this time. Both sides of the years-long case will have the opportunity to have their motions reheard, including a declaratory judgment request filed by attorney David Levin on behalf of owners Lynn Tran and Richard Hazen in 2013, and not pursued by either side until now.
During the Jan. 8 court proceedings, Levin argued that the declaratory judgment needs to be ruled on before the case can go to trial. On behalf of the city, attorney Jim Dye argued that the case has gone on long enough, since a code enforcement hearing in 2013, and the city wants to “go to trial and get a resolution as quickly as possible.” He also said that with different hearings and rulings happening in the case since the submittal of the request for declaratory judgment, the complaint is obsolete and would need to be redone to take into account all of the facts of the case in the previous five years.
The March 5, 90-minute conference will allow the court to consider the nature of discovery, if any, needed for a trial, determine if the declaratory judgment needs to be resolved before going to trial and allow both sides to tell their stories to the new judge on the case. If the case goes to trial, it will be to receive a ruling on the city’s request for injunctive relief and motion for default. These would either require Tran and Hazen to pay more than $65,000 in code enforcement fees and remove the tree house themselves or allow the city to forcibly remove the structure.
The tree house has been the subject of much debate in the city since it was built in the last half of 2011. The two-story structure is built partially in an Australian pine and supported by telephone poles designed to look like trees.
Tran and Hazen argue that they went to city hall before building the tree house to ask if they needed a permit and were told ‘no’ by a building department staffer. City leaders have previously argued that a permit was needed, that the tree house is potentially hazardous to neighbors in a storm, and that the tree house was built partially over the erosion control line on public land. The owners maintain that the structure is entirely on their property and within required setbacks from the erosion control line.
While the owners applied for after-the-fact building permits from the city, Building Official Jim McGuinness found that the supports for the tree house were not deep enough in the sand, the structure could not be made ADA compliant, and to bring it up to code would require tearing it down and rebuilding it, which could happen only if the owners could get a permit from the Florida Department of Environmental Protection.
The tree house case is back in court on Tuesday, March 5 at 9 a.m.