Waiting for Word
Judge to rule on treehouse issue

By Maybelle G. Cagle

City officials and a Clinton couple are preparing for a long court battle, no matter what a Circuit Court judge has to say about a controversial treehouse. Circuit Judge Tomie Green heard oral arguments Monday afternoon and is expected to rule next week. “The issue is whether the mayor or the board acted arbitrary and capricious (an action not based upon consideration of relevant factors),” said Green. Both sides had filed briefs (written legal arguments), but Green set oral arguments to have all of her questions answered. The case has been on appeal since the city turned down requests to let it remain a year ago. Scot Welch began building the treehouse at 218 Kitchings Drive in 1997 for his children. The family moved to the house in 1996. The treehouse in the family's front yard allegedly violates the city's ordinance specifying no accessory buildings are allowed in front or side yards. An amendment to the ordinance in 2002 added side yards.

The Welches were ordered by the city to remove the treehouse last summer, after they appealed Ward's initial action. The Planning and Zoning Commission refused to make a recommendation to the city regarding the treehouse.

Aldermen at the city hearing also denied the Welch family's request for a conditional use permit, a special exception or a nonconforming use permit.

Steven Smith, who represents Scot and Mary Welch, and Ken Dreher, who represents the city, are to file additional papers (findings of fact and conclusions of law) with Green by today.

Smith said it is believed the matter would be a “Case of First Impression” if it is appealed to the state Supreme Court. A first impression is defined in legal dictionaries as a novel, new or undecided legal question that comes before a court.

“It would be the first time they have heard such a case and dealt with it. It might add substantially to the body of law,” said Smith in a telephone interview after the hearing.

Smith had previously said to the Clinton News that the case would be appealed if the Welch family lost. Mayor Rosemary Aultman said after the hearing the city will appeal if it loses.

“I am pleased the judge had reviewed the case and had the issues framed,” said Smith.

The city first learned of the treehouse after an anonymous phone call was made to Zoning Administrator Gary Ward. According to Ward, he still doesn't know who the call came from.

The Welches asked the late Julian Lowther, who was building inspector, if a

building permit was needed. Mary Welch said previously she was told a permit was not necessary.

“Our position is that the city cannot come back five years after the fact based on a new ordinance,” said Smith.

Smith said it is “our position that Mr. Lowther (by this authority) lawfully made the decision.”

He told Green that “equitable estoppel” should be applied in the case.

Legal dictionaries define “equitable estoppel” as preventing one party from taking a different position at trial than was done at an earlier time if the other party wold be harmed by the change.

Green noted the ordinance does not “regulate what is between heaven and earth” and that trees are legal structures.

“If a tree is legal, how can anything attached to it be illegal?” said Scot Welch in an telephone interview Monday afternoon.

He added, “If it's difficult for a judge and the zoning committee to make the decision, how is a homeowner supposed to know?"

Dreher, who acknowledged the tree was in the yard before the treehouse, told Green that “originally it was the hope of the city we could figure out a way to leave the treehouse legally. “There still may be,” replied Green without making further comment on how this could happen..

According to Dreher, the city couldn't define everything in drafting the ordinance regarding accessory buildings. Dreher noted the city's goal in the ordinance was to prevent people from building structures in their front or side yards.

“The city attorney (Dreher) told Judge Green the city wanted to keep the treehouse if it was found legal. This statement is in direct conflict to the mayor's statement (on television) that they will appeal the decision,” said Welch.

In an e-mail statement Tuesday, Aultman said, “We'll wait for the judge's ruling, of course, but should she rule against the city's Zoning Ordinances, then I would recommend to the Board (Aldermen) to move forward with an appeal.”

Aultman added, “The long term ramifications are too far reaching for not only Clinton, but all cities across the state, who have zoning ordinances, not to seek a clarification from the Supreme Court.”