First issue: The Building Officials said “There are no codes for tree houses”… but the City said since it is a structure, it violates the City’s Land Development Codes. In the December 2014 response to the Higher Court, the City concluded that the Building Official made a mistake and it cannot ignore its duty to enforce its codes. The City said that City’s employees cannot bind the city. The City also said that even a formal written permit issued in error can be revoked without liability and does not bind the city.
- In the spring of 2011, Richard Hazen went to city hall and asked the City’s Building Official Robert Shaffer what he needs to do to get permit to build a tree house. Mr. Shaffer said “There is nothing in the book for tree houses. No permit is required.”
- So my husband and I spent thousands of dollars to build our tree house (a 2 level, 250 square feet viewing deck) in the giant Australian pine on our beachfront property. We informed our city commissioners living in the neighborhood. We wanted to make sure that it is fine to build our tree house without a permit as there are no codes for tree houses. They smiled as they come and see our building progress. We thought, how wonderful, government reduction of paperwork act and less burdensome regulations for minor Do It Yourself project!
- At the end of 2011, an anonymous caller questioned the city about our tree house with no permit. Mr. Shaffer told the press and Code Enforcement Officer Dave Forbes that he approved to build without a permit, but he assumed it was a child’s tree house.
- Then two years later in July 2013, at the Code Enforcement Board hearing, he testified that he only remembered a phone call telling Richard “The City of Holmes Beach has no regulations involving construction of a tree house.” He also said he discussed with his supervisor, Mr. Joe Duennes, back in 2011 and they are in agreement.
- In the hearing record, City’s Building Official Tom O’Brien also testified that “There are no codes for tree houses.” Then the statement is confirmed by City Attorney Jim Dye “There are no codes for tree houses. That is correct.” But because the tree house is a structure and the City’s Land Development Code stated that “Any structure requires a permit”, they concluded that it needs a permit and it violates the majority of the permitting requirements without ever stepping foot into the tree house to see if these codes are applicable.
- However, the hearing record also shows that Mr. O’Brien stated: “In the LDC, it is as it states: it regulates land development. It doesn’t regulate construction.” He also testified that not all structure require a permit and the Building Official has the authority to determine permit or no-permit. He stated that “I go to the code… and my reading may differ from one another…“
So which is which, there are no codes for tree houses or are there? Clearly the tree house is NOT a land development project. What is the definition of a tree house versus a land development? The city said we cannot rely on Mr. Shaffer’s statement as that is bad faith. Well, all we know is Mr. Shaffer is not the only official stating “there are no codes for tree houses”. So he can’t be all that wrong.
Next week, we explore the tree house definitions, bad faith versus good faith.
If you love reading legal documents, here they are:
City’s Answer Brief (00196637) on December 22, 2014
Reply To City’s Response DCA on January 26, 2015