• Fourth District Court of Appeal
  • 4D13-2566
  • Jan 29 2014 (Date Decided)
  • Judge Robert M. Gross


Case No.: 4D13-2566

Date: Jan. 29, 2014

Case type: environmental, code enforcement fees

Court: Fourth District Court of Appeal

Author of opinion: Judge Robert M. Gross

Lawyers for petitioner: Thomas J. Baird and Ashlee A. Richman, Jones, Foster, Johnston & Stubbs, Jupiter

Lawyers for respondent: Ronald E. Crescenzo and Gregory S. Kino, Ciklin Lubitz Martens & O'Connell, West Palm Beach

Panel: Gross, Chief Judge Dorian K. Damoorgian and Judge Carole Y. Taylor

Originating court: Palm Beach Circuit Court

At first glance, the town of Jupiter lost a high-stakes environmental case in the Fourth District Court of Appeal.

The Fourth District adopted a lower court opinion that threw out the town's $1.635 million fine against Roger and Myrna Byrd for removing 109 mangrove trees from their riverfront property and nearby land. Only the state Department of Environmental Protection can enforce mangrove regulations, an appellate panel of the Palm Beach Circuit Court decided.

"We agree with the circuit court's detailed legal analysis on this point and incorporate it in this opinion," Fourth District Judge Robert Gross wrote in the Jan. 29 decision.

Town attorney Thomas Baird argues for a second glance. A companion ruling affirming that the Byrds must pay $58,000 for costs sets a precedent that will be welcomed by cities all across Florida, he said.

Jupiter's code includes the big-ticket item of attorney's fees as an eligible cost recovery in the prosecution of code enforcement. The Byrds fought hard to avoid paying the town's attorney and special magistrate fees, and lost.

Now others will be deterred from choking the code enforcement system with weak cases that require lengthy hearings, said Baird, of Jones, Foster, Johnston & Stubbs in Jupiter.

"So the public is served by deterring those who would work the system without feeling that they have any exposure financially."

Gregory Kino, of Ciklin Lubitz Martens & O'Connell in West Palm Beach, declined to comment after conferring with his client Roger Byrd.

A river view

The Byrds, who live in Jupiter Farms, bought the Riverside Drive property for $1.2 million in 2010. The seller was Bill Wood, a former town attorney whose family built the house on land beside the Loxahatchee River.

They respected the mangroves, which provide the environmental benefits of nurturing sea life, filtering water and minimizing erosion.

Wood took pictures of the mature, 20-foot trees right before the closing "because he had a bad feeling about Mr. Byrd," Baird said. Byrd had tried to get the price reduced, asserting the mangroves obstructed his view of the river, Wood testified at the code enforcement hearing.

"Bill told him [Byrd] that mangroves were protected and he had a permit to trim them, but you can't remove them entirely," Baird related.

Neighbors testified that in December 2010, Byrd had the trees destroyed and dumped a load of sand over the stumps to cover them.

The town assessed fines for 109 trees, at $15,000 apiece, but an expert said there had been hundreds. It was hard to tell exactly how many.

In early 2011, the Byrds refused to allow representatives of the DEP and the town onto their property. Baird said he was forced to obtain an administrative search warrant.

The code enforcement hearing before a special magistrate, typically a 15-minute session, looked more like a trial, with long-winded expert witnesses, cross-examinations and rebuttal testimony that lasted five or six days.

No wonder. "There was a lot at stake for both sides," Baird noted.

When the hearing was over the magistrate approved the $1.635 million fine for the trees and $58,000 in costs. The town had jurisdiction to enforce state law protecting mangroves, the magistrate found.

The circuit court disagreed. Jupiter could have applied for a delegation of state authority under the Mangrove Trimming and Preservation Act, but didn't.

"It is clear that, absent a delegation of authority, all regulation of mangroves by local governments is preempted," said the opinion by Judges Glenn Kelley, Catherine Brunson and Meenu Sasser.

"To be clear, this Court does not condone the [Byrd Family] Trust's behavior," the opinion says. "In flagrant disregard of State law, the Trust removed and destroyed protected trees and vegetation. The Issue is who has jurisdiction to address, and remedy, this violation of State law."

The state's response

In fact, the DEP did take steps to punish the Byrds, fining them $35,600. Roger Byrd, a chiropractor, personally replanted 280 mangroves on the property, according to Baird.

The Byrds also paid Palm Beach County $9,000 to plant mangroves on Jupiter's Fullerton Island, future site of an aquatic preserve.

So why, some people asked, did the town council decide to appeal the fine issue to the Fourth District?

"The problem is, from our experience, that the remedies for the DEP, certainly in this case, were wholly inadequate," Baird said. "The DEP personnel said to us, we fined them the most that we can under the statute, and we said, that's a pretty poor trade-off for the destruction that occurred."

Plus, the Byrds told the town they were appealing the fee ruling.

"The town took the position of, if they're appealing anyway, why not take a shot at the $1.6 million? What have we got to lose?"

The appeal cost less than $5,000, Baird said. "We'd already briefed the issue, so all we were doing was updating our brief. It was really a minimal cost given the potential upside. What we were really after was the costs, and we didn't have a choice [about that]."

But in the end, it wasn't so much about money, he said.

"I felt like the case on the fines was marginal from the beginning, but the reason that the council wanted to pursue it—and it was a good decision—was that the community was really outraged that someone would come into an aquatic preserve and rip out, on the weekend and without a permit, hundreds of mature mangrove trees."