In split decision, Town Council votes to protect critical wildlife area
After more than three hours of attorneys making their cases as well as a lengthy public comment, the Town of Fort Myers Beach Council voted against a special exception application for an approximately 1,500 square-foot boardwalk over dunes leading to the beach at 8150 and 8170 Estero Blvd.
The case pitted Texas Hold Em LLC and Squeeze Me Inn LLC against the Audubon Society and a host of town residents who worried the actions would lead to irreversible damage to birds who nest there.
The battle involved the question of whether the project was actually in the Little Estero Island Critical Wildlife Area (LEICWA) or adjacent to it. The applicants had received state permits for the work that the town fought, with the latest court decision approving a state permit on the condition that the town has final say over whether to approve an exception to their code for the work.
Council members Bruce Butcher and Ray Murphy supported the application for an exception to the town code to allow the homeowners to build the boardwalk while Mayor Anita Cereceda, council member Rexann Hosafros and Joanne Shamp voted to oppose the application.
Shamp was brought to tears in explaining her case after the vote sat at 2-1 to allow for the exception.
“We as town council here are the final protectors and stewards of this precious beach environment,” she said. “It’s all about the beach and you can’t be about the beach without being all about the animals.
“I stand with the FWC, the Audobon, all of the wildlife stewards,” Shamp said. “This is not the place to build something like this,” Hosafros said.
“You’re putting a boardwalk for a current situation that may not be there in the next storm,” Shamp told the applicants. “My house may not be here in the next storm. This is not a public access. This is a shared private access that serves only the needs of those individuals in those homes to a very temporary current situation or area there that will fluctuate and change at any time.”
Murphy saw things differently. “Although there are perceived negative effects, there are positive effects,” Murphy said. “I’ve seen turtles nesting at walkovers,” he said. “I know it’s a critical area and I know that the wildlife there is protected, very much so. With all of that said, I see the public benefit of keeping people out of that lagoon,” Murphy said.
“These structures are built to encourage all of us to be able to go out there and enjoy the wildlife, to observe the wildlife.”
Shamp cited a statement from the DEP which she said, stated that the construction and use of the boardwalk would significantly disturb the environment. The Fish and Wildlife Conservation Commission, she stated, maintained in a letter that the elevated boardwalk could discourage the nesting of birds.
While the special exception application is new, the case itself goes back to 2015 when the homeowners applied for a state permit to build the boardwalk. The town filed suit in 2016 to stop the work.
The town council hired attorney Martha Collins to represent them but with a new board in place Collins had the task on Nov. 18 of arguing the town’s own case against the project even though the town board could have ruled against her own arguments.
Kurt Kroemer, who owns one of the two homes in question, said he and neighbor Eddie Rood are considering their options in how to response. “We hate to go back to litigation,” he said. Kroemer said he and Rood have spent hundreds of thousands of dollars in legal fees. “That decision was completely opinion and complete emotion,” he said.
“We met each and every one of the requirements for the exception,” Kroemer said. He cited the backing of the town’s local planning agency for the boardwalk. “We’ve got every single (state) permit that is required for this boardwalk.”
Kroemer’s attorney Amy Petrick said “mistaken assumptions have plagued this project.” She and the homeowners claim that the dune walkover they want to build will not be in the LEICWA boundary but is adjacent to it.
For Collins, the fact that the state needed to provide permits for the work was an admission that property is on state land. Collins said the applicants said they own the land from the back of their home to the Gulf “but couldn’t prove it.” The lagoon in the back of their property, she stated, is a state wetland which is why state permits were needed for the work.
Petrick said the issue is also about property values being diminished if those who live at the residence are unable to access the beach. Currently, Kroemer rents out his home for much of the year. “One of your obligations is to protect property values,” Petrick said to the town council.
Brad Cornell, Southwest Florida policy associate for the Audubon Society, said that the critical wildlife area is one of only two major nesting areas for Southwest Florida, the other being Marco Island. The boardwalk, he said, would introduce new threats to birds and turtles who nest there. Cornell said that while boardwalks and crossovers across dunes are acceptable in other areas, as Petrick noted, he said this particular site was not an acceptable place for it.
“It’s a very important case in that it set precedent for what people can do with public land,” Collins said.
Gayle Crabtree-Pergoli lives near the critical wildlife area and gives tours on the beach for the town. She was worried about the precedent that would be set if the town allowed walkovers over the lagoons and dunes which make up the critical wildlife area down along the beach. She saw the application by the homeowners as being about money and not for the benefit of the public.
“They are not going to put a sign on Estero Boulevard saying ‘We have a walkover come on in.’ It’s about them making money on their rental properties,” she said.