Court rules for village in Babylon treehouse battle

A Babylon Village resident's five-year battle to save a treehouse he built for his children appears over after a federal appeals court ruled the village didn't discriminate against him when it declared the structure illegal.

In 2018, John Lepper began building a treehouse in a pine tree in his yard for his two children, then 5 and 6 years old. The FDNY firefighter, now 49, said then it was to help them play safely after he found a medical syringe on their Cockonoe Avenue property.

But village officials, who cited liability concerns and complaints about the treehouse’s size and proximity to the street, said he needed a permit and had to submit a professional survey and architectural drawings.

Lepper refused to pay for the drawings and continued to build without a permit before the village fined him and ordered the structure's removal.

Lepper appealed the fine and in 2019 a state appellate court reversed the village judge's decision, saying Babylon failed to show in summonses that the treehouse was a building under village code.

Separately, in 2018 Lepper and his wife, Noelle, had filed a federal lawsuit alleging village officials were "punishing" them and violating their First Amendment rights after they drew attention to the syringe. 

They claimed the village’s zoning code was unconstitutional, they hadn't been treated as other treehouse owners and that the treehouse was under 90 square feet and therefore didn't require a permit under the code.

U.S. District Court Judge Joan Azrack dismissed those claims last year, along with a second lawsuit the Leppers filed in 2021 seeking $3 million in damages. Her decision noted an engineer found the treehouse had a lot area of 111.7 square feet.

Lepper appealed — without his wife — but the 2nd U.S. Circuit Court of Appeals ruled Thursday he failed to show he “was treated differently” from other treehouse owners and upheld Azrack's ruling. 

Chief Judge Debra Ann Livingston wrote that Lepper’s arguments were “unpersuasive."

Lepper's attorneys said Monday neither they nor Lepper could comment due to a gag order. "We have been ordered by a judge not to say anything on this matter," attorney Victor John Yannacone Jr. added.

Multiple online listings show the Leppers' three-bedroom, three-bathroom house is currently listed for sale for $950,000.

Babylon Mayor Mary Adams said in a statement Monday she was pleased with the decision and believes the village now can require the treehouse's removal.

“From Day One, the Village of Babylon was willing to work with the property owner as we do with all our residents. The property owner chose not to," she said.

Terence McSweeney, a Babylon Town councilman and FDNY firefighter who lives near the Leppers' property, said Monday that village officials were right in trying to protect taxpayers in case of liability.

McSweeney said the battle — and large lawn signs Lepper posted about it — attracted gawkers who drove down the street to get a glimpse of the treehouse, which remains in place.

“I am happy this case is finally behind us,” the councilman added.

By Denise M. Bonilla

denise.bonilla@newsday.comdenisebonilla

Denise Bonilla has worked at Newsday since 2003 and covers the Town of Babylon, including the villages of Lindenhurst and Amityville.