Part 2: Jupiter Island on a Bumpy Road
Controversy Poised to Explode into a Quagmire
A split opinion nearly a year ago over development of a one-block stretch of Jupiter Island along South Beach Road now has grown to a furor, drawing outsiders into the fray and flirting with national attention.
Just like Martin County’s tempest over the Lake Point Restoration project in 2013, facts are taking a back seat to residents’ emotions. Unsavory agendas hide under an island-wide passion for the environment.
The difference is that the Jupiter Island Town Commission majority, unlike the 2012 Martin County Commission majority, do not seem to be the ones hiding their motives or manipulating their constituents.
Their respect for the law – and a town attorney apparently not worried about keeping his job – may well save them from a protracted legal battle.
Otherwise, they’ll be following Martin County’s path into a courtroom where delayed facts finally prevailed over emotion, costing county taxpayers millions in attorney fees, sanctions, and settlements.
The difference is that the stakes are much higher on Jupiter Island, where individual property values dwarf those of Martin County’s. The average sales price of a home here is $14 million, and prices have jumped by 230 percent over the past year, according to a real estate website, The Real Deal.
Martin County’s estimated $20 million settlement with Lake Point could easily be quadrupled or more, the payment of which would be borne by just 900 residents, rather than Martin County’s 150,000 citizens.
At the center of the Jupiter Island fray is a stretch of undeveloped land on the ocean side of South Beach Road, its last stand of still-wild land.
A resident, M. David Testa, living on the west side of that stretch of land in the 300 block of South Beach Road, along with his wife Adena, have lived there for 17 years. They also own an easement across the 300 block to access the ocean, according to court records.
When David Testa discovered in January 2021 that new residents were about to build beach houses on some of the undeveloped parcels of the 300 block, the Testas protested to the town’s Impact Review Committee (IRC) that they had not been notified of the town’s intention to move the waterfront setback line, which increased the buildable square footage on the oceanfront for the parcels in the 300 block.
The Testas objected to what they called the destruction of sand dunes on a pristine beach intentionally protected by the town’s previous waterfront setback line of 21 years ago that prohibited construction. The town denies the Testas’ allegations.
The IRC comprises residents appointed by town commissioners to weigh residents’ objections to their neighbor’s construction plans. It’s a final step the town takes to manage its growth by putting additional conditions on development applications, or to deny them outright if they don’t meet certain criteria, even if they’ve been approved by the town’s Local Planning Agency.
Since the development application met the town-mandated criteria to allow construction, the IRC imposed restrictions on the design and square footage of the proposed beach house at 310 S. Beach Road to assuage complaints. After reducing its size, the beach house construction was ultimately approved, as was a second application for a beach house at 322 S. Beach Road.
IRC Ruling Prompts Appeals, Temporary Construction Ban, and Lawsuit
The Testas appealed the IRC’s approval of both applications for beach houses, and the town commission initiated a temporary ban in March on further development anywhere on the island.
A third landowner, who purchased his 2-acre parcel for $12 million earlier this year, is waiting in the wings to file his development application in the 300 block, likely to see if he will need to join an as-yet-unfiled lawsuit against the town to protect his right to build on the property he purchased.
The town commission will hear the appeal arguments from residents, applicants, and their attorneys at 9 a.m. on Dec. 13, prior to its regular commission meeting at 1 p.m. in Jupiter Island Town Hall. Since the appeals are quasi-judicial, no public comment will be taken, but the meetings are open to the public.
After the initial IRC approvals, Testa filed a lawsuit in Martin County Circuit Court on June 2 against the town. He alleges that residents had not been properly notified two years earlier about a public hearing in April 2019 to approve Ordinance 376, which moved the waterfront setback line that determines the rear yard setback from either the Intracoastal Waterway on the west side of the island, or from the ocean on the east side.
Testa’s suit contends that one notification of a public hearing by the town is insufficient, and a change in zoning that allowed development on a “preserved” natural area required what is called “a heightened notice” across two columns on a news page of a generally circulated newspaper, instead of within the newspaper’s one-column-wide legal-notices section.
In Town Attorney John “Skip” Randolph’s response to Testa’s claim, he writes that a heightened notice was not required, because no zoning changes were made, the zoning map was untouched, and the residential land use listed for the affected parcels remained exactly the same as it was prior to moving the setback line.
According to Jupiter Island Mayor Whitney Pidot at the Nov. 16 town commission meeting, the town hired an outside legal firm to verify Randolph’s analysis of state requirements for notices, and it confirmed a heightened notice was not required in this instance.
The town also engaged the Greenberg & Traurig firm to review the town’s decision to move the waterfront setback line to ensure their decision aligned with the town’s Comprehensive Growth Management Plan. Attorney Barbara Hall of Greenberg & Traurig confirmed that the town had done so appropriately, according to the mayor’s comments during the Nov. 16 commission meeting.
A Crucial Decision Comes Dec. 17
Circuit Court Judge Jennifer Waters will consider three motions for summary judgment in Testa’s lawsuit on Dec. 17, one by the town, one by Testa, and one by the new 300-block landowners who are intervenors in Testa’s lawsuit.
If the judge does find an error was made by the town in notification and grants a summary judgment in Testa’s favor, he also asks the court to return the setback line to the same location as it was 21 years ago, and to void all permits and applications based on the new 2019 waterfront setback line.
Should that happen, attorney Ethan Loeb, who represented Lake Point Restoration in its 2013 lawsuits against Martin County and environmental activist Maggy Hurchalla, already announced to the town commission that another lawsuit will be filed immediately against Jupiter Island by the the three new property owners in the 300 block of S. Beach Road.
More Revelations Around the Corner
Loeb has lots of practice protecting private property rights from local governmental actions, and uncovering public records in a process that reveals what he calls, “the dark underbelly” of those decisions.
Many of the private communications he’s discovered are now part of the court record, and he told the town commission Nov. 16 he has many more not yet revealed.
In an apparent preemptive move in November to counter Loeb’s allegations and rouse resident passions, the Testas, along with some neighbors, formed a new environmental organization, Jupiter Island Forever.
They are collecting contributions to pay legal fees, retained nationally known and highly regarded Boies Schiller Flexner LLP trial attorneys, and invited an earth sciences professor from Boston University to speak at a private town hall meeting to discuss the environmental impact of the proposed beach houses and to “evaluate” the town’s political leadership.
They seem to be following Scott’s, Heard’s, and Hurchalla’s game plan to shift the public’s attention away from the dry facts at hand to what stirs emotions the most – protecting our environment – in an apparent grasp for political power. Could a New York Times story be far behind?
Tomorrow is Part 3 in the series, Jupiter Island Begins its Bumpy Road
— By Barbara Clowdus, Publisher
Martin County Currents