Palmetto Bay

Despite losing appeal, Palmetto Bay official continues fight against environmental suit

Palmetto Bay Vice-Mayor John DuBois continues to fight a county lawsuit against him, ongoing since September 2012, which alleges he illegally trimmed mangroves and filled wetlands on his 8-acre bay-front property.

“No single violation has been proven as far as I can see. I’ve been making that claim since the beginning in my meetings with the head of DERM and everybody else,” DuBois said on Wednesday. “There’s a legitimate statutory explanation for everything, for all of the mangrove trimming that was done on the property.”

State and county laws protect mangrove trees because they are vital to the ecosystem and protect the shores from erosion. Property owners typically have to apply for permit to trim them, although the state does exempt some trimming from permit requirements. Jurisdictional wetlands – allegedly filled on the DuBois property – are typically regulated by the U.S. Army Corps of Engineers.

In March, a Miami-Dade circuit judge ordered that required DuBois to hire environmental consultants to assess the extent of the environmental damage done and recommend a remediation plan.

DuBois immediately filed an appeal with Florida’s Third District Court of Appeal, which he lost in June.

With the case back in circuit court, the county filed a motion to enforce the remediation order in late July. DuBois responded by filing a motion to modify the order, arguing it was impossible to comply.

“What our motion said was that it is not possible to comply with the order because the factual basis of the order is incorrect,” DuBois said.

His motion takes issue in particular with the order’s reference to jurisdictional wetlands, and argues that no such wetlands were ever actually established on the property.

The order states in part that assessment of damage should “include the re-establishment … of … jurisdictional wetland boundaries as depicted in the Defendant’s pre-construction survey and site plan submitted to Miami-Dade County as part of the building permit process.”

But DuBois’ motion argues that the so-called pre-construction site survey and site plan – the motion argues there was only a “Location Sketch” – made reference to jurisdictional wetlands by mistake.

It points to the Environmental Quality Control Board hearing held on the case, and quotes environmental expert Steve Carney, who testified that the jurisdictional wetland delineation referenced in the sketch occurred when a land surveyor included in his site sketch a line Carney had spray-painted onto the ground to keep construction workers and equipment away from vegetation.

The line was “meant more as a navigational aid, a keep-away mark, for the contractors and their heavy equipment not to wander into the vegetation,” Carney testified.

The county has agreed to let DuBois’ motion be heard first, and a hearing date has been set for Sept. 2.

On the same grounds, DuBois has also filed a notice to the county under state statute 57.105, which allows for sanctions against litigants and their attorneys in suits determined to be frivolous. His notice argues that the county and its lawyer at the time knew there were no jurisdictional wetlands on the property, and demands the county withdraw the suit outright and reimburse legal expenses.