Judge’s rulings settled little

The town, property owners win in court, but so what?

Intractable battle lines are being drawn on Jupiter Island, and the ensuing war will not be settled anytime soon, either in court or in the meeting hall.

The apparent hope of the vocal minority – who claim they are the majority – is that they will take control of the town commission in March 2023, when four of the five-seat commission will be up for grabs.

If Town Commissioner Michael Brooks’ comments during the Jan. 13 town meeting indicate the opposition’s intent, then upholding the law is not a priority in the effort to control who lives on Jupiter Island.

And, according to uncovered emails, their concerns are not about the environment, although that’s what they claim publicly. In their private emails, it is who the outsiders are, where their wealth comes from, and whether they’re “too glitzy” for membership in The Jupiter Island Club, according to court records.

Brooks, at least, seems willing to use government regulation to take the rights of property owners to build their homes on their own property, although their approved site plans meet the town’s growth management laws, and despite the fact that the action violates town, state, and federal laws.

During the Jan. 13 town meeting, Brooks said he wants the town to establish new zoning rules for the 300-block of South Beach Road that reduces the size of building footprints, even those of development applications already approved by the town and even permitted by the Department of Environmental Protection.

“It should be equally applied,” he said, “without exceptions.”

Attorney Ethan Loeb, who represents five landowners in the 300-block, warned the commission at that meeting that if they continue  down that path of forcing new regulations on landowners, reducing the buildable area by as much as 65 percent, considered a regulatory taking of their property, “…there will be dire consequences.”

The most logical way to accomplish attracting more residents to their cause is to keep the controversy alive, keep fanning the flames of residents’ passions about the island, and position the newcomers and their attorneys as enemies bent on destroying the island.

The best way to do that is to keep the contentious lawsuit in the courts – even when a judge rules against them. And that’s exactly what’s happened.

It does not matter that the town prevailed Jan. 14 in the rare lawsuit filed against it last summer in Martin County Circuit Court by Jupiter Island resident David Testa. The town’s position that it had, indeed, followed all state laws pertaining to public notice of governmental action was vindicated in court.

Judge Gary Sweet’s ruling that granted summary judgment to the town verified the legality of what has become common practice in Stuart, Martin County, and Indiantown, among other local governments: Public hearings postponed from an advertised meeting date to another date certain, as happened in the town’s adoption of Ordinance 376 that changed the location of the island’s waterfront setback line, do not require an additional public notice, as long as the meeting is continued.

Their evidence for a lack of adequate notice turned frequently on a statement by Town Commissioner Penelope Townsend made during an October 2021 commission meeting.

“The intent of the law is to notify residents,” Townsend is quoted as saying. “Yes, we had nine meetings. Yes, we talked about it. Yes, it was in newsletters, but didn’t address the information that we didn’t have.”

She was referring to the increase in the size of the building envelopes of the parcels in the 300-block of South Beach Road. The director of the Planning, Zoning and Building Department, Ruben Cruz, reminded commissioners at their Dec. 13 meeting that he had, indeed, included that information in a report to commissioners in 2019.

A more detailed analysis with precise measurements was the result of a geographic survey by town consultants in 2021.

The judge’s ruling is supported by Florida case law, according to the town’s attorneys and attorney Ethan Loeb, representing five property owners in the 300-block of South Beach Road, the affected landowners.

Testa’s attorneys disagree – still disagree – and are now arguing with the judge. They claim that the demonstrative presentations produced by Loeb and the town in support of the evidence were inaccurate and misrepresented the facts.

They have re-argued Testa’s position in a Jan. 18 filing with the same evidence used during the Jan. 14 court hearing, setting the stage for an appeal.

The entire 300-block of South Beach Road at the center of attention had been zoned for residential use for decades, allowing construction of single-family homes. It was not a new zoning classification, according to Loeb, in support of the town’s position.

Since Testa’s motion for summary judgment was denied, the threat of an injunction that would have returned the waterfront setback line to its 2000 location and void all development applications based on the 2019 line, was eliminated – if only temporarily.

The circuit court judge also granted summary judgment to the intervenors in Testa’s lawsuit, ruling that Loeb had demonstrated successfully that the plaintiff’s delay in filing the lawsuit was unreasonable and hurt Loeb’s clients.

Loeb presented the timeline in court testimony showing that the Testas knew a development application had been filed in January 2021, yet their lawsuit to stop the development was not filed until June 2021.

Loeb also presented public emails from Adena Testa, a tax attorney and David Testa’s spouse, showing that she and her neighbors would be okay with the new beach house if the size of the building was reduced from two stories to one story.

In private emails uncovered in public records requests, however, Adena Testa, her neighbors, as well as Commissioner Brooks, revealed their deliberate intention to delay the development approvals, “to cause headaches,” and even to encourage lawsuits to cause further delay, none of which was known by the property owners.

In the meantime, to meet the town’s demands in good faith, the property owner at 310 South Beach Road incurred $200,000 in additional engineering, architectural, and landscaping fees to alter their original plan, and the other landowner at 322 South Beach Road incurred an additional $160,000 to update his plans to meet the town’s demands.

In Testa’s court filing Jan. 18, his attorneys disagree with Loeb, claiming the lack of notice as the primary reason for the delay, again citing Commissioner Penny Townsend’s claim of “don’t know what we don’t know,” and that Loeb had mischaracterized David Testa’s testimony in Loeb’s successful attempt to have a portion of Adena Testa’s affidavit stricken from the record.

Adena Testa testified in her deposition that her husband’s testimony (that he had been notified around March 2019 that the waterfront setback line was being discussed) was “unreliable” due to his faulty memory.

In their summary judgment motion to the court, the intervenors also asked that they not be subject to further restrictions or to new laws that would prevent or impede the construction of their beach houses. With skyrocketing construction costs, the landowners’ costs – in addition to their legal fees – are escalating daily, Loeb added. The judge apparently agreed by granting them summary judgment, as well as the town.

The Testas filed an administrative challenge to the Department of Environmental Protection’s permit for 310 South Beach Road with the state Dec. 27. The state DEP issued a permit in late October, over the Testa’s objections, saying that no sand dunes, no vegetation, and no turtle nesting sites would be damaged by construction of a beach house at 310 S. Beach Road, according to the permit.

The Testas disagree, substantiating their argument with the testimony of an ocean engineer. Without the DEP permit, a building permit for the beach house cannot be issued by the town.

The prospect for additional lawsuits seems highly likely.

A special meeting will be held Jan. 31 by the town commission at 9 a.m. in the Jupiter Island Town Hall to discuss the town’s construction moratorium, due to end that day unless extended by the town commission.

Town Manager Michael Ventura, who worked out a formula to reduce the size of buildable lots east of South Beach Road without reducing buildable square footage overall — applicable to all split parcels on the island — will give an update on his work. The only exception to Ventura’s plan would be for the 600 block, which has its own special zoning rules.

Mayor Whitney Pidot asked at the last town meeting that Ventura also present the cost of his proposal, considering that it would need to entail compensation to current landowners, and be thoroughly reviewed by the town’s legal consultants prior to a recommendation to the commission.

Pidot also asked that Jupiter Island residents interested in an appointment to fill the remaining one-year term of Commissioner Hank Heck, who resigned Dec. 30, send a letter of interest to the town manager at:  [email protected]. The commission will discuss, nominate, and appoint a new commissioner at its Feb. 16 meeting, with a swearing-in ceremony at the town’s March meeting.