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  • Writer's pictureJoe Capozzi

Jupiter board blocks construction plans on historic waterfront land, forcing a reckoning with past

Updated: Mar 6, 2023



ON A BRIGHT winter day, Charles Modica took in the view from a grassy mound overlooking the confluence of the Loxahatchee and Indian rivers at the mouth of the Jupiter Inlet.


“Location, location, location. It’s a beautiful spot,” he said, using the old real-estate adage to explain why his development company paid nearly $16 million in 2013 for the 10-acre waterfront plot with the prominent mound rising some 12 feet above the inlet’s southwest shore.


Location, location, location is also what attracted the same piece of land’s previous inhabitants — from the early Native Americans whose remnants created the mound thousands of years ago, to the late 19th-century pioneers who cut the Celestial Railroad through the mound and built a winter home on top of it, to the trailer park that occupied the spot for more than 70 years until 2016.


These days, it’s one of the few undeveloped privately-owned tracts of prime waterfront real estate in town. But Modica, the developer of the nearby Love Street marketplace, has plans to change that.


He wants to build 67 condos, five townhouses, a restaurant and a 125-room boutique hotel that he might call “The Inlet Inn.” He says he can build it all in a way that will protect the remnants of a prehistoric Jeaga settlement and pay homage to the origins of modern Jupiter.


“He wants to develop it as a legacy to this community,’’ said Philippe Jeck, Modica's attorney.


But that vision for the land’s future is stuck in the mud, literally, because of a formidable obstacle — the land’s past.

William Henry Jackson, whose photographs influenced the establishment of Yellowstone and other early national parks, photographed these Seminole Indian men, ca 1891, on a Celestial Railroad pier on Jupiter land that developer Charles Modica bought in 2013. (Jupiter Inlet District)

In an extraordinary decision that’s almost certainly headed to court, the town of Jupiter’s Historical Resources Board on Feb. 16 rejected Modica’s plans because of concerns that construction on the site of Jupiter’s first town center will destroy the archaeological remnants, including possible gravesites, of the town’s earliest inhabitants.


Although the question before the board dealt with Modica’s request to build on 2.5 acres of a 4-acre archaeological area within the 10-acre site, the board rejected town staff’s recommendation to allow construction on a small 1.7-acre piece of the archeological zone.


Instead, the board voted to preserve all 10 acres, including the site of the Celestial Railroad’s northern terminus, and to ask the Town Council to purchase and convert the land into an historical educational center for the public.


Red area shows 10 acres Charles Modica wants to develop.

The board’s ruling, after three public hearings in late 2022, represents much more than just an emphatic statement for historic preservation. It’s a rare and uncomfortable public reckoning about the lack of sensitivity shown by the town’s first pioneers to indigenous cultures that had been living on the land thousands of years before the first Europeans arrived.


That broader lesson was not lost on Debi Murray, chairperson of the Historic Resources Board, in remarks before the board’s first unanimous vote in December, ratified in February.

“I sort of would like to apologize to the developer,’’ Murray said before pausing to take a deep breath as Modica and his attorneys stood on the opposite side of the Town Hall chambers from local preservationists and members of Florida’s Seminole and Miccosukee tribes and the American Indian Movement.


“All of our society’s guilt about how people were treated in the past is coming to a head right here, but it has to stop somewhere and I think this is what we have to do,’’ Murray said.

Preservationists, who have voiced concerns about the land since at least 2015, declared victory. But Modica, who said he was “dumbfounded” by the decision, promises the battle isn’t over.



“They have essentially taken the property by eminent domain,’’ he said, claiming the board, while having “the best of intentions,” overstepped its authority. “The whole thing is pretty absurd.’’


He said that when he bought the land in 2013 he was given assurances by town staff that it was “developable’’ with archeological oversight.


He hired prominent Florida archaeologist Bob Carr and revised his project several times to address concerns about protecting the sensitive remnants in the ground. He said he moved the buildings as far as he could to the land’s perimeters and set aside for preservation the most valuable waterfront real estate on the site, the mound.


Although part of the mound would be used for tennis and pickleball courts, enraging Native Americans, Modica says those courts would act as a protective buffer on the surface of the midden, with impacts similar to the trailer pads and house that covered the mound for the previous 100 years.


“We aren't being treated fairly, even though we are giving way more than one (developer) has ever given in an application before you,’’Jeck told the board in November. “The more Mr. Modica gave, the less he could get. There was no compromising.’’



We aren't being treated fairly even though we are giving way more than one (developer) has ever given in an application before you.'' — Modica attorney Philippe Jeck

The board's decision, which Modica plans to appeal to the Town Council, raises some vexing questions about private property rights.


Should a developer in 2023 be penalized for decisions that were deemed acceptable at the time they were made generations ago?


How can the town not allow development on land that has already had some development on it, with excavation for underground utilities and a swimming pool for the Suni Sands Mobile Home Park?


And why should Modica be treated differently than other developers who in recent years were given permission to build on nearby land with known historical roots?


Jupiter Oxbow, approved in 2019 but not yet under construction, is a mixed-use project (designated by the "4" on the map below) on a 0.7-acre tract with a midden and part of the Celestial Railroad alignment across. It's just across State Road A1A from Modica’s land ("2" on the map). To the southeast of Jupiter Oxbow is Inlet Waters ("6" on the map), a 3.7-acre townhouse community built on parts of the old railway.



“I know I am in a position where I gave as much as I could in good conscience and they have taken a stance that eliminates any reasonable approach to this,’’ Modica said in an interview. “The only solution is a lawsuit. Or if the town wants to pay fair value for it, they can.’’


He doubts the town can afford to buy the land.


Jupiter’s town manager is getting appraisals for the 10 acres, but Modica said an indicator of what he thinks the land is worth can be found in the recent $100 million sale of the Regency Condominium on 2.2 oceanfront acres in nearby Tequesta.


Approving his development plan, Modica said, will not only save the town the cost of purchasing the 10 acres but also generate lucrative tax revenue and enhance the Jupiter Inlet Village district.


“I'd like to develop it, get it on the tax rolls and preserve the mound,’’ he said. “It's such a no-brainer that I'm concerned about the way they are thinking about it, quite frankly.’’


 

Artist rendering of entrance to Charles Modica's proposed development at Suni Sands in Jupiter. (General Store Development)

Modica is no stranger to the Jupiter waterfront. Two years ago, he was applauded when he opened Charlie & Joe’s at Love Street, a $30 million marketplace of four eateries, with partner Joe Namath, the retired football legend.


The Love Street development is two short blocks west of Modica’s disputed 10-acre site, which is referred to in town planning documents by the land’s historical names, the “Sperry property (aka Suni-Sands).”


Modica’s fight to develop the “Sperry property” is different from other battles that have been waged against Florida municipalities over the years by developers paving over the last remnants of Old Florida, almost always with no sensitivity to the Native Americans who lived there first.


For one, some board members and local preservationists don’t portray Modica in that light.


When he bought the land 10 years ago, his initial development plans called for a $100 million Key West-style community with a 200-room hotel, a dozen cottages, retail space and underground parking.

Preservationists said he deserves credit for revising those plans and setting aside prime waterfront land to preserve the mound, concessions most developers would not offer.


Those efforts, however, don’t go far enough, they said, to adequately preserve a unique piece of land directly rooted in the town’s origins.



“It is a remnant of the past, but it's not just that. It was the beginning of the town of Jupiter,’’ Assistant Planning Director Stephanie Thoburn said at a hearing for Modica’s request for a certificate to dig. “It is worthy of protection.’’


Suni Sands is one of three remaining archeological sites known to have existed around the Jupiter Inlet. Ten others have been destroyed. Only Suni Sands, Dubois Park and the Jupiter Lighthouse remain relatively intact, said Christian Davenport, the Palm Beach County archeologist.


Today, the intact midden extends approximately 560-by-260 feet, forming an ovoid area covering about 3.3 acres.


It’s “one of the least understood archeological sites in all of South Florida,’’ he said. “Just because there were trailers and a house on top of it at one point does not diminish the site in its importance.’’


Modica wants to build on 2.5 acres in the archeological zone, including excavating about 2 acres and impacting another half-acre with a road and tennis and pickleball courts on top of the mound.


A series of archeological digs were conducted off and on from 2014 to 2021, a requirement before Modica can request a development order. They uncovered human remains, including seven teeth and a patella (kneecap), evidence that town planners said suggests the Sperry site may have been used as a burial ground.


Also found were fauna material of extinct animals and tools made from stone not found in Florida, suggesting the land was part of a larger prehistoric Jaega settlement on both sides of the Jupiter Inlet whose inhabitants may have engaged in trade with tribes from Alabama to New York.



Archaeologists already have established that indigenous people occupied the land from 500 BC to 1200 AD. But shards of a particular fiber-tempered pottery found at the Sperry site could be 5,000 years old, based on similar shards found around the inlet, indicating a much older history of inhabitation, according to a town report.


“To contextualize this time depth, people have potentially been living in Jupiter longer than the pyramids in Egypt have stood,’’ Davenport said in a 2021 letter to Thoburn.


The earliest documented disturbance of the mound came in the 1880s when land on the west side of the 10 acres was excavated for construction of the north terminal of the Celestial Railroad. The 7.5-mile narrow-gauge track offered service south toward the Palm Beach Inlet from 1889 to 1895 before it went out of business in 1896, two years after Henry Flagler built a segment of his Florida East Coast Railway just west of the Celestial Railroad.


In its heyday, the railroad’s north terminal included a train station, telegraph office and a wooden wharf that served as a landing for steamboats and fishermen. On the other side of the inlet from the wharf was the Jupiter Lighthouse, first lit in 1860.


“The terminus of the Celestial Railway was the original center of town. It became a gathering place for everyone in town,’’ Thoburn said at hearing. “People tied up rowboats, kids swam, men fished and just about every visitor had to have his photo taken with the lighthouse in the background. It sounds kind of like today.’’



In the late 1890s, Wall Street financier Edwin S. Hooley and pioneer Harry Dubois were among the first to build homes atop mounds along the inlet’s southwest shore. In 1904, after suffering financial losses, Hooley sold his home to William Sperry, whose family was the “S” in S&H Green Stamps, which customers from 1896 to the late 1980s collected at grocery stores and gas stations and redeemed for everything from lawn furniture to books to shoes.


Sperry expanded the place into a boarding house and winter resort for the town’s earliest snowbirds. His wife Emily called it “Suni (pronounced sunny) Sands,’’ according to the Loxahatchee River Historical Society.


A mobile home park opened on the land in the 1940s. The old Sperry home was torn down in 1964. The house’s only remnant today is a concrete staircase on the mound’s escarpment leading to the edge of the water where the original Sperry boat house stood until it was torn down in 2016.


The site has been vacant and closed off ever since the last mobile home residents left in late 2016.


The significance of the Suni Sands property has been known for over 100 years through oral histories. It was scientifically documented in state archives for the first time in 1992 with the recording of the archaeological site and the staircase and boathouse.


Now, town officials have a rare chance to preserve it.



“You've got something that for at least the past 500 years of recorded history, every person who ever saw Jupiter saw this mound in some shape or form,’’ Bryan Davis, Palm Beach County’s principal planner, who oversees historical and archeological resources in the county, told the historical board in November.


“To preserve that, that's critical,’’ he said. “You're talking about the essence of Jupiter almost in one site. It's probably the most iconic site in terms of importance as probably the lighthouse is.’’


While Modica doesn’t dispute the significance of the land's history, his development team reached a different conclusion about the archaeological findings, conducted with 286 “shovel tests.”


Although Modica archaeologist Bob Carr found seven human teeth and a human patella (kneecap), that doesn’t necessarily mean the site was once used as a burial ground, the developer argued. Not a single full human skeletal remains was found.


“No graves were encountered. No cemetery,’’ Jeck told the board. “This is not to diminish what we found, but just to understand what it’s not.’’


If he builds the project, Modica promises to carefully extract any archeological remnants found on all 10 acres and transfer the artifacts to the Loxahatchee River Historical Society.


“We don't believe any more human remains will be found, but our archaeologists tell us you just don't know,’’ Jeck said.




If human remains are found, he said, they would be reburied in a designated plot on the site in consultation with the Seminole Tribe of Florida.


Those overtures fell flat to preservationists, who told the town it had a unique opportunity to do what previous town leaders did not — protect Jupiter’s earliest remnants instead of trampling on Native American belief systems.


“Once these resources are gone, we don't get them back. It is the town’s best link to the ancient past,’’ Davenport, the county archeologist, said in a letter to Thoburn.


Betty Osceola (Facebook)

“Yes, the entire site could be excavated and construction allowed, but having 2,000 boxes of artifacts at the Loxahatchee River Historical Society is not the same as having the site which has stood in that location for thousands of years.’’


As for Modica’s claim that the pickleball and tennis courts will act as a protective buffer for the midden, Florida tribe members considered that insulting.


“Just because it doesn't have headstones and markers and pretty gates doesn't mean it's not any less significant than any other type of, in your words, a cemetery,’’ Betty Osceola of the Miccosukee Tribe of Indians of Florida, said after a meeting in December.


“If you go to Arlington cemetery and say let's put a condo over it, everybody would be appalled because they understand the significance of Arlington cemetery,’’ she said.


“Everybody's ancestors should be protected and considered sacred, regardless of who they are, but unfortunately when it comes to indigenous people it's the thought, ‘Well, we have this mound over here and it’s OK to build on this.’’’



Native American burial customs deserve the same respect shown to other cultures, said Glenn Bakels of Loxahatchee Battlefield Preservationists.


“Would the same proposal even be entertained if the description was a potential African American, caucasian or Jewish burial site instead? Why then is it acceptable to build on top of such a potentially significant Native American site?” Davenport wrote in a letter to Thoburn.


“In this era of land acknowledgement statements, the optics for the developer and the town to build on such a site would not be good. …’’


At public hearings in November, Florida tribe representatives offered warnings about disturbing the land.



“There are some things you don't do to our ancestry when they're in the ground because if you do then you’re going to lift up their spirits and you will be haunted by them,’’ said Martha Tommie of the Seminole Tribe.


Modica’s development proposal does not guarantee full public access to the mound and Celestial Railway site. Residents of the planned townhomes and patrons of the restaurant and inn would get most access.


“There is so much rich history there. It'd be a shame to lock it up just for the people who can afford it and not the locals,’’ said Brad Mayo, the board’s vice chair, whose father was the town’s first police chief.


Modica said he has turned down offers for the property. (He said a partner pitched a plan for an upscale Airstream RV hotel park.) He believes his project has the potential to be a vibrant destination and he wants it to be his legacy to Jupiter.


Preservation advocates at Jupiter Historic Resources Board meeting Feb. 16, 2023 (Joe Capozzi)

If he wants a legacy, he should scrap the development plans and build an historical center for the public, said Murray, chief curator of the Historical Society of Palm Beach County.


“Why not interpret this site, allow access and education through a visitors center and tell the story of the earliest inhabitants and continue that story into the town of Jupiter’s beginnings and the Celestial Railroad?” Murray asked.


That story would include a chapter on how Jupiter’s earliest pioneers were the first to disturb Native American lands, even if they weren’t aware of the long-term consequences.

“We can't go back and criticize the people who lived on that property (generations ago) because they didn't have the same standards that we do,’’ Murray said.


Modica said he hopes to find a solution that allows the development to proceed without having to go to court, which could keep the project in limbo for another 10 years.


“If they ever (want) a developer who wants to preserve the very mound they are concerned about,’’ he said, “I'm here.’’


Charles Modica rubs his chin as Jupiter Historical Resources Board debates his proposal Dec. 19, 2022. (Joe Capozzi)

Some historical review board members sympathized with Modica to a degree, noting now “the goal posts kept changing” in the 10 years he has owned the land and how he had offered to set aside nearly a quarter of the land for preservation.


But the greater concern, they said, is the potential damage to the archeological remnants from what would be the first intense modern development on the 10 acres. Heavy equipment would roll across the land. The buildings would have varying heights — the inn and restaurant would be 4½ stories — with a possible maximum of 35 feet, possibly crushing whatever’s in the land beneath.


“The whole area quite frankly is archaeologically significant,’’ board member Christine Pinello said Dec. 19. “As much as possible should be protected and not just the areas that have material coming out of the ground.’’


“If they ever (want) a developer who wants to preserve the very mound they are concerned about, I'm here,’’ Charles Modica said.

The debate forced board members to think about other nearby historical and archeological sites lost over the years to development.


“Even the properties next to this property, if we could go back in time, should have been saved,’’ said Mayo.


In his testimony to the board, Davis, the principal county planner, shared a favorite quote from the late John Sawhill, a former Nature Conservancy president, who said: ‘‘In the end our society will be defined not only by what we create but by what we refuse to destroy.’’


The quote is, in essence, the very message the Historic Resources Board is trying to send: Jupiter’s present-day leaders have a unique chance, and an obligation to do whatever they can, to preserve what’s left of the town’s earliest settlements.


“We are not trying to right all the wrongs of the past, but I think we need to protect this site,’’ Murray said. “We can't change what was done, but we can better protect what might be on this property.’


Preservationists celebrate Feb. 16 after the HRB rejected Modica's development plan. (Joe Capozzi)

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About the author

Joe Capozzi is an award-winning reporter based in Lake Worth Beach. He spent more than 30 years writing for newspapers, mostly at The Palm Beach Post, where he wrote about the opioid scourge, invasive pythons, the birth of the Ballpark of the Palm Beaches and Palm Beach County government. For 15 years, he covered the Miami Marlins baseball team. Joe left The Post in December 2020. View all posts by Joe Capozzi.









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