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Town vacates Canal Street beach access

By Staff | Mar 18, 2020

This beach access off Canal Street will eventually be closed to the public after the Town of Fort Myers Beach gave up its right-of-way to TPI for its Margaritaville project. NATHAN MAYBERG

The Fort Myers Beach Town Council voted unanimously to vacate portions of Canal Street in the town’s right-of-way and portions of Crescent Park Plat at its most recent meeting to pave way for TPI’s Margaritaville project.

The move will eventually eliminate the public’s access to the beach from that point despite longstanding opposition from town resident Chris Patton, who has challenged the town in court on its approvals of the Margaritaville project.

A Fort Myers Beach resident since 1958, Chris Patton stood at the microphone in front of the Town of Fort Myers Beach Council March 13 and decried the town’s actions. She said she has used Canal Street to access the beach for more than 60 years and expressed her opposition to the town council giving up that access to TPI for its Margaritaville project.

“I do not want to give up my continued right to use Canal Street to access the beach. My kids and my grandkids, three generations, use this access. Once again, I object to vacations of streets that provide my access to the beach and bay. Our code says the city recognizes that it is unlawful to vacate public rights of way solely for private purposes,” Patton stated.

“Canal Street was established for use by the public forever,” Patton said, citing a historic document. “People of Fort Myers Beach should be up in arms with the town taking away our easements to benefit private purposes and changing our code to make it easier to do so island-wide.”

Patton, who lives on nearby Primo Drive, accused the town council of changing the rules so TPI would be granted the easements to move Margaritaville forward. “You changed the rules so you could vacate these easements to TPI. When this council and other future councils use this code to take away public easements,” beach and bay access will be lost, she said. “This council wants to get this passed before Tuesday’s election but let’s take the time to get this right.”

Patton’s attorney Ralf Brookes said a municipality should vacate roads by ordinance, not by resolution. He argued that there should also be a disclosure of the names of the owners behind TPI, who he said are receiving the benefit of the easement. He said the current disclosures are deficient.

Brookes said the historic plat for the property where the easement rests, states that the streets and avenues are dedicated to the public forever. “These are supposed to be for the public forever. You’re not supposed to give them to a private developer to develop a private project where the roads would be,” Brookes said.

TPI attorney Russell Schropp said that the terms “forever or in perpetuity” doesn’t prevent the council to “dispose of the property or vacate it.” He argued that municipalities “have a wide degree of discretion” to do so.

“Even though land is held in trust and you are trustees of the public, the land is held in trust for the public by the municipality. Vacation is permitted.” Schropp said there is “public interest” facilitated through the vacation.

Town attorney John Herin Jr. said state statute allowed the town to vacate roads by resolution “which have not become highways necessary for use by the travelling public,” he said.

Herin said if the right-of-way was not needed for a public purpose, it was acceptable for the council to vacate it.

The council voted unanimously to approve the vacation of portions of Canal Street and Crescent Park Plat to TPI.

Mayor Anita Cereceda said the town council was obligated to approve the vacation of the property as part of its 2018 vote which approved the Margaritaville project. The board voted unanimously on March 13 to approve vacating the property.

As part of the vacation, TPI will be responsible for removing all driveways and street connections at the intersection of Canal Street and Estero Boulevard. “Sidewalks will be constructed to connect existing sidewalk sections to create a seamless and consistent sidewalk across the vacated right-of-way and property,” according to the resolution.

The properties in question are part of a 12-foot-wide right-of-way adjacent to the Pierview Hotel, a portion of Canal Street and portions of Crescent Park Plat.

The right-of-way stops short of the beach and requires the crossing of private property to serve as a public beach access point, according to the community development staff report.

TPI will be constructing a new access to the beach as part of the property swap. A temporary beach access will be maintained during the construction period of the Court Street beach access, from Estero Boulevard to the beach.