Hearing held on proposed boardwalk
A hearing was held last week in front of an administrative judge, which has members of the community waiting to see if a critical wildlife area will be impacted by a proposed boardwalk.
The applicants, Texas Hold ‘Em and Squeeze Me Inn, applied on July 31, 2015 for a permit from the Department of Environmental Protection to construct a 1,491.5-square-foot boardwalk for beach access over an existing lagoon and dunes. The applicants are at 8150 and 8170 Estero Blvd.
Florida Audubon Society President Julie Wraithmell said there are two rental homes owned by corporations named Texas Hold ‘Em and Squeeze Me Inn. She said the homes are on part of Fort Myers Beach where there is a lagoon immediately behind them and a sandbar ridge seaward to that before it goes to the open Gulf of Mexico.
When the homes were purchased, Wraithmell said they would access the beach by walking through the neighbors’ backyard, around the lagoon and to the beach. When the neighbors started making complaints of trespassing, they now walk five houses to the south before cutting over to the beach.
“They say this is a hardship and they should be allowed to build a 300-foot-long boardwalk from their backyard, not available to the public, to go across the public lagoon and onto that stretch of beach,” she said, which would go into the Little Estero Island critical wildlife area and birding habitat.
According to Department of Environmental Protection, “currently homeowners along this area have created various footpaths through the dune vegetation and lagoon in order to access the Gulf of Mexico. The applicants are willing to further reduce impacts to nesting species in this area by restricting any construction, or maintenance work to outside of the nesting season, this has been made a condition of the permit.”
DEP also states that “the project will create a designated walkover for the property owners minimizing foot traffic through the dune vegetation and the raked beach area to the east that is utilized by various listed beach nesting birds. The proposed project is a piling supported boardwalk located within a shallow lagoon area that is not navigable.”
Wraithmell said Audubon and the Town of Fort Myers Beach intervened two years ago when the corporations applied for the boardwalk.
“This is really vulnerable beach. It’s always shifting. When a storm comes through, the boardwalk will be scattered all over the yard and conservation land and impact the natural resources that are public, not private,” she said.
According to the DEP, the agency issued a consolidated notice of intent on Sept. 29, 2016 to issue an environmental resource permit, as well as a letter of consent easement to use sovereign submerged lands.
An amended petition for an administrative hearing was received on Nov. 4, 2016 to DEP from Florida Audubon Society and the Town of Fort Myers Beach. The petition was filled because “the proposed boardwalk’s traversing the boundaries of the Little Estero Island Critical Wildlife Area.”
The frustration stems from DEP’s intent to permit the boardwalk, Wraithmell said, but the Town of Fort Myers Beach states the boardwalk is not compliant with codes. She said instead of DEP saying, ‘I’m sorry, your application is not complete,’ they will wait to consider it.
“They decided to issue it with a waiver,” Wraithmell said. “When you finally get permission from the town, then you can build your boardwalk. That is not how the permit is supposed to work.”
According to DEP, the applicants, Texas Hold ‘Em and Squeeze Me Inn, submitted revised construction plans on May 10, 2017 to relocate the boardwalk entirely outside, but adjacent to the boundaries, of Little Estero Island Critical Wildlife Area.
Instead, Wraithmell maintained DEP is bending over to give the permit, which is “kind of alarming.”
“I think with everyone worried about the red tide in the Gulf of Mexico, most Southwest Floridians want DEP to be more protective of natural resources, rather than looking for exceptions when applications aren’t complete,” she said.
DEP reviewed the proposed changes and determined the project continued to met the criteria for the issuance of an Environmental Resource Permit and an Easement to Use Sovereign Submerged Lands.
One of the issues, Wraithmell said, is privatization of beaches. Wraithmell said she is not sure why the public and resources that belong to everyone bear the burden of a boardwalk for two private homes that are rental properties.
A hearing was held for the case last week before an administrative law judge. Administrative Judge Gary Early has 30 days to settle on his recommended final order.
According to Dee Ann Miller with DEP, the next step in the administrative process is for the judge to issue a recommended order.
“Once the recommended order is issued, all parties will then have the opportunity to file exceptions to the order, as well as responses to exceptions, which are all considered in the department’s issuance of a final order. A final order is due 45 days from the date of the issuance of the recommended order,” Miller said in an email.
“I’m hopeful we will prevail. If we don’t, the applicant still doesn’t have permission from The Town of Fort Myers Beach,” Wraithmell said. “Even if we aren’t successful, it doesn’t mean the boardwalk is immediately built.”
She gives a great deal of credit to the Town of Fort Myers Beach for standing up for what town officials believe in – realizing the health of the beach is really important.
“By safeguarding the resources, they are protecting the well-being of their entire town,” Wraithmell said. “The Town deserves a lot of credit in this. I think they are standing up the way local governments should for all of their residents. Town residents should be proud of how their local government is protecting their interest.”
Part of the well-being is protecting state threatened species of birds that use the lagoon on the part of the beach where the boardwalk has been proposed. Such species as rosette spoonbills, least terns, black skimmers and snowy plovers use that part of the beach. In addition, federal threatened species, such as the reddish egret, piping plover and red knot use the beachfront in question.
“This larger stretch of beach collectively is one of the most important nesting areas for these rare and declining species. There is a particular concern of the precedent that this sets . The last thing residents want to see is boardwalks running up and down their beach, especially as that beach continues to erode,” Wraithmell said.
The Town of Fort Myers Beach Manager Roger Hernstadt said he could not make any comments due to it being a pending lawsuit.