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Construction of new and larger houses has been chipping away at the tree canopy that used to shade most of Hypoluxo Island.  Many residents would like to see tougher rules to protect the trees. Google Maps 

Related: Lantana: Tales from a Tree City

Related: Editor's Note: With mature trees threatened, the answer isn’t more palms

Related: Delray Beach: Fight to preserve massive banyan at golf course pits city against drainage district

By Mary Thurwachter

Longtime Hypoluxo Island residents fondly remember the binoculared birders who roamed the island in Lantana in the mid-1990s. 

They were Audubon members who came from all over the world to spot birds on the Atlantic flyway, an avian superhighway that ran through the barrier island, designated as a bird sanctuary as indicated by signs leading into both the north and south sections of the island.

Patti Towle and others who have lived on Hypoluxo Island for three decades or more also fondly remember the shade trees where so many birds perched. Over the years, many of the trees have come down to make room for new and larger houses. The bird population has plummeted, too.

“You could hear the birders speaking different languages like German or Finnish,” Towle, a 35-year resident, remembers of that earlier time. 

When Towle noticed that a hardwood tree in her neighborhood was cut down recently, she emailed the Town Council and town manager on Jan. 5, not to complain but with hopes that together they could find a solution for the protection of native hardwood trees.

Towle had been instrumental in helping to draft some of Lantana’s tree protection laws. “These laws are currently shown in our Town Code but do not seem to be enforced,” Towle wrote.

“Over the weekend — when code enforcement could not be contacted — a spec builder removed a large hardwood tree, in the swale area, in front of the property at 505 SE Atlantic Drive,” Towle wrote. “The tree was home to one of the great horned owls who live on Hypoluxo Island. The owl is a desirable bird to have with benefits for conservation.”  

This mature ficus tree was cut down without permit at a spec home job site. Photo provided

The exterior of the house had already been constructed, and the hardwood tree posed no threat to the dwelling or the house’s future driveway, according to Towle. 

The tree was in the swale area adjacent to the street, an area which belongs to the town, not the owner. 

Towle said that last fall she wrote the building department and code enforcement calling their attention to a large, endangered tree at the corner of a new construction site at 717 SE Atlantic Drive, a tree that remains standing. 

“I believe the tree to be a kapok, which is a celebrated tree that other Florida townships protect,” she wrote. “I was informed by our building department that nothing could be done to protect our Lantana hardwood trees. I find that hard to believe, especially when they pose no threat to construction. There has to be a solution.”

Towle says hardwood trees were being removed in significant numbers “because out-of-town buyers are attracted by the lure of palm trees. If the property owner has not obtained a permit to remove the tree, he pays the town a fine and then is allowed to replace a hardwood with one or several small palm trees. Often developers factor these fines in as their cost of doing business.”

Back-and-forth with town

Her plea was slow to receive responses. She first heard from Vice Mayor Kem Mason, who told her he had asked Town Manager Brian Raducci to investigate what is happening at the two locations she referenced. 

“From your description, it is disturbing, but we do have to investigate and get all the facts before we take any actions,” he said.

Towle repeatedly asked the manager for a meeting with her and other residents, and one finally took place Feb. 9.

“Our most important result is the town door appears open, and so far reception has been graciously received,” Towle said. “Let’s see what happens when we follow up with our strong language to strengthen our town’s tree ordinances.”

After the meeting, Towle contacted Town Clerk Kathleen Dominguez about the establishment of a Lantana architectural review committee, a volunteer group used by other municipalities to ensure new construction and landscaping are compliant and the ordinances enforced.

After being reviewed by Town Attorney Max Lohman, that request was denied. Lohman determined that Lantana does not meet any of the narrow exceptions required by the state to enforce such regulations. One of those exceptions requires a board to have been created before Jan. 1, 2020. 

According to Towle, there doesn’t appear to be any accounting for the nearly $107,000 the town collected for the tree removed at 505 SE Atlantic Drive. “The money can be spent anywhere in the town on various and sundry” things, Towle said. “A Tree Fund does not even appear on the town budget. Where the money goes, I have no idea. I had hoped it would be used for replanting more hardwood trees on Hypoluxo Island. Sadly, that is not the case.”

How does it work?

“Protected trees are permitted to be removed if mitigation is provided,” Development Services Director Nicole Dritz told Towle. “If mitigation cannot be provided because of certain factors, such as space constraints, the code allows for payment to be made to the Tree Mitigation Fund. 

“We, of course, always encourage the protection of any protected tree, but it is not a code requirement. There are also state statutes which allow for protected trees to be removed in certain cases, sometimes without a permit from the town entirely.”

Few fines for tree removal

A public records request on how many tree fines had been issued during the past five years showed none. Going another five years back, the search showed that two fines (for $15,000 and $1,000) were assessed in 2019 and one fine (for $2,500) was assessed in 2021.

Dritz’s assistant, Elizabeth Eassa, explained the dearth of fines.

“Trees by code are required to be removed with a permit,” she said. “When they are removed without a permit and code enforcement gets involved, there are two options that we can take. One is fines and the other is mitigation.

“Our preference is to protect the tree canopy so that was always done via mitigation. Either paying into the Tree Fund or replacing trees on their property.  There’s a formula to it. It’s like one and a half of what was removed has to be provided on site. That’s why the number of fines in the past five years was zero. In every situation we went for mitigation instead of assessing a fine.”

The town, Eassa said, is more interested in the tree canopy and replenishing it than to impose a code enforcement fine.

The code does allow for trees to be removed, both protected and non-protected trees. “There are property rights and we have to allow people to take trees down,” she said. “If it is a protected tree, they are required to mitigate for it and there’s list of trees they can choose from and some of them are palm trees.”

In the case of the protected tree removed at 505 SE Atlantic Drive, the tree was where the owners proposed putting a driveway, Eassa said, although Towle says the tree would not have been in the driveway’s path. 

“We have to accept their application, their request, but we can push back and encourage them to keep trees,” Eassa said.  “We prefer them not to remove trees, but at the end of the day, we come to some sort of agreement. In this case it was a large amount of money ($106,400) they paid into the Tree Fund to offset the tree’s removal. That’s money the town can use to replant new trees on our public properties to keep the tree canopy for the whole town intact.”

Property owners, in order to have the tree cut down, “provided an arborist’s report saying the tree had been compromised and wasn’t in the best condition and it wasn’t a great candidate to be relocated,” Eassa said.

The property owners provided their own arborist, although the town now has an arborist on staff.

Eassa said the Tree Fund  (no one could say when it was founded) currently has $185,480 in it. In the past year, Lantana Public Services planted trees in the swale along Marbella Lane and is proposing to install trees on Ocean Avenue and at the tennis courts.

Town Finance Director Stephen Kaplan said the Tree Fund is an account used to track related purchases. “Historically, we adjust this account during the fiscal year through a budget amendment, increasing the budget based on the payments received for that specific purpose,” he said.

The removal of this mature ficus without permit is one case in a growing concern. Photo provided by Town of Lantana

One resident’s initiative

Some residents aren’t waiting for the town to replace or plant new trees. Ellen Schweber is one of them. The former New Yorker moved to the island less than 10 years ago and found the block on which her house stands was “very uninspired,” with none of the canopy trees that made her fall in love with the neighborhood.

“It had been stripped of its old beauty, its jungle-like quality,” she said. “It looked so bare.”

To remedy that, Schweber began buying trees with her own money. Some of her neighbors chipped in, and a little money came from the town.

She asked her neighbor, Media Beverly, if they could start a group to inspire others to plant trees. “It turned out it would cost a lot of money to do it properly, so I did it improperly.”

Schweber began planting live oak trees with the goal of getting a canopy. “I know it’s a slow growing tree, but it’s native and we wanted something that would one day go over the road and be very beautiful.”

Eight trees were purchased for her block and the first ones are coming together. “They are not very lush yet, but they are actually meeting. I’d love to extend the project around the island,” she said. 

Schweber, Beverly and Towle are working on that.

A tree saved

Occasionally, efforts to save protected trees have been successful. 

The large ficus on the curve at 707 S. Atlantic Drive, adjacent to Pelican Lane, survived thanks to the efforts of former island resident Richard Schlosberg.

“The developer was about to saw it down,” Towle said, “having clear-cut the lot to build his house, when Schlosberg intervened and pointed out that the tree was in the swale and belonged to the Island — not the developer’s lot. The tree was spared. And it remains a lovely tree, still standing.”

Beverly called on future homeowners to make mindful choices. “Thirty-five years ago, we chose to live on historically significant Hypoluxo Island, a place of unique architecture surrounded by a lush, beautiful tranquility rarely found elsewhere,” Beverly said. “Sadly, this paradise is being slowly eroded by new huge structures replacing ageless landscaping. I am hopeful that future owners will be more mindful of their precious new surroundings.”

On a bright note, the great horned owl who lost his home in the tree cut down at 505 SE Atlantic Drive, appears to have found news digs — in one of Towle’s hardwood trees.