The tree house has outlasted two building officials and multiple major storms since 2011. It is now over 4 years old, a beach landmark and a joyful view to many. We had hoped to have a happy ending to our tree house saga at the Circuit Court. But after many months of being wrongly accused, waiting in peace and suspense, the local judge issued a ruling unfavorably against us.
Basically, the Circuit Court’s judge upheld the Code Board’s order based on hearsay evidences and the City’s Building Official finding that our beach tree house is in violation of numerous Local Land Development codes. The court wrote “A local government’s quasi-judicial decision must be upheld if there is ANY substantial competent evidence supporting it.” I’m not an attorney, but as a reasonable person, does this sound right and fair? So if the tree house violated one, then the tree house violated all of the alleged codes that the building official cited from the Land Development Code book, whether it is applicable or not? Our tree house is not a house. It is just a two level decks that looks like a Tiki hut in a tree. Is this a Land Development project? Does it therefore needs a Development permit, a Building permit and various other certificates, plans, drawings, and on and on that we are found in violation of? Our attorney explains as simple as this: “If the Building Official, Mr. O’Brien alleged that the sky is green, and didn’t show proof that it is green, and the Code Board says it is green, and the circuit court agrees that the sky is green, even if everyone else knows that the sky is blue, the law allows it as a loophole in favor of the City”
The judge also declared that the local codes prohibits building of tree houses and that the prohibition is constitutional and in line with state laws. So we cannot even get an after the fact permit that the Code Board told us to get !
Finally the court denied our request to allow the tree house to stay. The court’s opinion is that even when the City Building Official make errors causing citizens to violate the code, it is the citizen who will have to pay for the mistake. The judge wrote “It is unreasonable that we rely on the words of City’s Building Official and take his statement as a blanket approval to build any type of tree houses.” Since when has it become unreasonable to rely upon the words of the City Building Officials? What is defined as “Reasonable” so we can gain a better understanding and to know when to rely on city officials words and when not to.
Isn’t the City’s Building Official role is to be well versed in both city codes and state laws and to provide appropriate guidance to citizens? Do taxpaying citizens have the right to rely on their expertise? He consulted with other building officials in the room before he told us that not only there is “No permit required” but also there are “No rules for tree houses, just build it safe.” We also have other city officials, aware that we are building without a permit and observing the building of the tree house the entire time. When you tell someone that there are “No rules”, isn’t that giving them carte blanche and the right and the liberty to be creative and act as one wishes?
The judge wrote “Public policy would not be best served by allowing circumvention of the City’s required, formal permitting process”, condemning us as if we had intentionally bypass the city process, while in fact we initiated the process with the City’s Building Official, and went to his office to ask for guidance. Records clearly show that the City’s Building Official researched the City’s Codes, consulted with his supervisor and told us that “No permit is required” and there are “No rules” in the book for tree houses. These statements are clearly documented in the city code enforcement record in 2011, in local newspapers and again in the testimony during the code board hearing in 2013.
The facts that the Building Official took an informal approach, did not ask us for more information, did not give us any forms to complete, and did not give us any paperwork and specific guidelines is City’s administrative concerns, not ours. We do not know what a City Building Official would need from us to determine permit or no permit, rules or no rules. We merely trust that the City Building Officials know their own procedures, rules and codes. Should we and citizens like us not believe and trust any word that they say from now on? Should we always hire legal experts to double-check and triple check everything?
The Court has not issue a ruling on our pending petition to grandfather the tree house with a public vote. The City has stopped this petition from moving forward due to a conflict with State law. My understanding is that State law prohibits petition over “Development Permit” and the city claims that the tree house needs a development permit 2 years after the fact. Again we got caught in retroactive, inconsistent state laws vs local codes, confusing terminologies and requirements after we had spent thousands for the petition and hours in the summer heat collecting signatures.
After reading the court’s judgment, we felt terrible. It is so unfair. However, upon further analysis of the city’s records, transcripts of the testimony and the judge’s ruling with our attorney, HOPE comes back! We believe the facts and laws are for the tree house, along with public support. Therefore our attorney has filed a Petition to the District Court of Appeal. A copy of the Petition is available at the link below. The main points to our appeal are:
1. The Court erroneously believed that the City Building Official had made 3 inspections of our property and the tree house and that his alleged violations and hearsay evidences are competent based on these inspections. Testimony and city records reveal that he never stepped foot on the property and that neither he nor anyone else in the City Building Department took any measurements to document the alleged violations. If he inspected properly, he would not cited us for building the tree house on dead tree trunks, nor cited us for public facilities, kitchen and utilities that the tree house does not need or have.
2. Despite the fact that City’s Land Development Code requires a permit for ALL buildings and structures, both City Building Officials testified that in practice, the city does not require permits for ALL buildings and structures, and that it is up to the building official to decide whether or not a permit is required, and that the Building Official has the authority to do that and to tell the citizen to do without a permit.
3. The Court incorrectly believed that Richard did not inform the building official of the beach location, while in fact the record clearly shows that he did. He loves the beach and is very proud of his beach property so he tells everyone he lives on the beach.
4. Our attorney, an expert in environmental and coastal laws, maintains that the City’s coastal setback codes are unconstitutional as they conflict with Florida state statutes. This issue is fairly complicated so to gain further understanding, you can read his explanation in the case filings to the District Court of Appeal. Bottom line is the State statutes allow a wide range of structures minor and major while the local codes prohibits all except for a few. These structures include elevated piled support viewing decks, gazebos, and lifeguard stations and so on.
5. The Circuit Court stated that per law, a City can be equitably estopped from enforcing violations of its codes if a property owner (1) relied in good faith; (2) upon some act or omission of the government; (3) and as a result expended substantial sums of money such that it would be unfair to penalize the property owner for such reliance. Even though the court did not find us acted in bad faith, and acknowledged that we have relied upon acts and omissions of the City and have expended large sums of money in reliance of those acts and omissions, the court nevertheless refused to apply the law of equitable estoppel in our tree house case.
6. There was no testimony or evidence presented at the Code Board Hearing that the tree house was unsafe and harmful to others, and the Circuit Court did not make such a finding either.
Our tree house is not a real house. It is a well-built decorated two level deck for viewing. It brings smiles to many faces and benefits many through its worldwide publicity. It was featured on HGTV Best Ever Tree House show, on NBC Today show and many others. We think it is the only tree house on the Gulf Coast of Florida and not sure but may be even the only one on the coast of Florida. We built this tree house as a private getaway, and have never expected this long of a struggle to keep it from destruction.
If you believe in goodness and fairness, please ask the Holmes Beach City’s Commissioners to dismiss this case to save attorney fees and let the tree house be. Destroying the tree house that many are fond of is not good public policy. Fining us and making it so expensive to the point where we have to destroy it is just simply cruel. Really, since when do we destroy property, hard work and work of art created in good faith, based on trust? All is not lost for our tree house.
Proverbs 24:16 “for though the righteous fall seven times, they rise again”