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Dune walkover rejected again

February 26, 2020
By NATHAN MAYBERG (nmayberg@breezenewspapers.com) , Fort Myers Beach Bulletin, Fort Myers Beach Observer

With an overflowing meeting room at town hall leading to seats being laid out in front of a screen in the town hall lobby to watch the meeting, the Town of Fort Myers Beach Council once again voted against a proposed dune walkover adjacent to the Little Estero Island Critical Wildlife Area at a re-hearing Feb. 18.

The council had already rejected the proposed 298-foot dune walkover at 8150 and 8170 Estero Boulevard in November by a 3-2 vote during a hearing on the special exception request. The applicants, Texas Hold 'Em LLC and Squeeze Me In LLC (Kurt Kroemer and Eddie Rood) have been in litigation with the town for several years on building the walkover, or boardwalk, from the back of their property across the water and through vegetation to connect their properties to the beach with the Gulf of Mexico.

They claim that the lagoon in the back of their land, which used to flow into the Gulf, was disconnected by a sandbar. The town's attorney on the litigation, Martha Collins, has stated that the land and water in question has shifted over the years and will continue to change, and that a 298-foot boardwalk would result in potential negative impacts to birds which nest in the adjacent Little Critical Wildlife Area and who rest in the connecting water and land.

Article Photos

The land behind 8150 and 8170 Estero Boulevard.

NATHAN MAYBERG

The property owners had requested a re-hearing while they put in motion another lawsuit against the town to challenge the council's November decision. As a result of the prior legal battles, the town was granted the authority to have final say over whether to allow a special exception for the walkover if it met the town's code.

A re-hearing is only supposed to cover new evidence or a misapplication of the law according to the town council and its attorney John Herin Jr. At the re-hearing Feb. 18, Mayor Anita Cereceda and Councilmember Rexann Hosafros told Kroemer and Rood's attorney Amy Petrick that testimony she was providing with witnesses, including the importance of property values, was not germane or new evidence. Petrick said that preserving property values was a public benefit. "Please don't underestimate our understanding of our code and our situation here," Cereceda said. "I don't see the relevance," Herin said, "how public benefit deals with property values."

The attempt by Petrick to seek a line of argument arguing that the property owners had a right to the walkover as a means to their prosperity brought a response from Herin that this was a private value, not a public benefit. The board voted once again 3-2 to reject the latest bid by Kroemer and Rood to be granted the special exception. The majority of the board did not believe that any misapplication of the law had been made in the previous hearing.

Voting against the dune walkover were Cereceda, Hosafros and Councilmember Joanne Shamp. Once again, Vice Mayor Ray Murphy and Councilmember Bruce Butcher voted to allow the dune walkover, which has been strongly opposed by the National Audobon Society's Florida chapter. The organization considers the Little Estero Critical Wildlife Area one of only two major nesting areas for birds in Southwest Florida.

Due to the proximity of the walkover being adjacent to the Little Estero Island Critical Wildlife area and the property that would be crossed not being private land, the circuit court that last heard the case required that the property owners seek a special exception from the town in order to obtain permits from the state to build the walkover.

"No one has the right to build a structure in the EC (environmentally critical) zone unless they get a special exception," Hosafros said, citing the town's code. The town's code has a series of factors that have to be met to obtain a special exception, which she said the applicants did not meet.

The walkover would involve the removal and clearing of vegetation, Petrick said. Petrick and Kroemer threatened to litigate the validity of the Little Estero Island Critical Wildlife Area itself.

Cereceda said "there was no new evidence presented in this hearing, in this re-hearing that compels me to change my position and I do not believe it is in compliance with our land development code or our comprehensive plan."

Vice Mayor Ray Murphy, in his support of the applicants, cited favorable rulings for state permits to allow the creation of the walkover, provided the town council also went along with the construction of the structure. Murphy also cited the 7-0 vote by the Local Planning Agency to approve the walkover, which included a provision that several neighbors would also have access to the walkover.

With Kroemer and Rood vowing to continue litigation against the town, the outcome of the March 17 election for the council could prove decisive in the case as Butcher is running for re-election, while Cereceda is term-limited and Shamp will not be seeking re-election. Two members of the Local Planning Agency who voted in support of the walkover, Dan Allers and Jim Atterholt, are both running for town council seats.

 
 

 

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