Town editing code in wake of boardwalk project dispute
In the wake of a dispute that began two years ago over a proposed boardwalk project through a Critical Wildlife Area, the Town of Fort Myers Beach is working on changes to its Land Development Code.
The edits pertain to sections regarding land use in Environmentally Critical areas.
There are currently several lawsuits on this matter awaiting a final ruling.
Kurt Kroemer, one of the property owners involved in the litigation, claims the town is threatening property rights with their edits to the Land Development Code.
“Ordinance 18-19 is in process of removing all language referencing “by right,” and thus removes all beachfront property landowners’ rights to access the beach unless they apply for a Special Exception with the Town of Ft Myers Beach,” he wrote in a Dec. 10 email to Council.
During a discussion of the code changes at a management and planning meeting on Dec. 6, Councilmember Bruce Butcher asked, “Are we changing anyone’s rights, to what they previously had the opportunity for, anywhere in here?”
“I think the goal of this is not to do that. The goal of this is to clarify the process so people don’t think they are allowed to do something by right when they’re not,” Town Manager Roger Hernstadt replied.
Councilmember Cereceda questioned what precipitated these changes, and Hernstadt told her it was already an issue when he started working at town hall in April 2017.
“With all due respect, your answer to Bruce on, does this affect any current pending project, to me sounded like, maybe,” she said.
“No, it’s not maybe,” Hernstadt said. “If you have a pending application in, you’re under the code the way it’s written. And if you’re in dispute with the town over the code, it’s the way it’s written. “
Cereceda remarked that the LPA had serious concerns about the code changes, and added that the town was right to do everything they could to protect their Environmentally Critical areas.
Council then decided to push the issue to the next M&P meeting on Jan. 17.
Kroemer has requested that the town table the discussion until after the judge makes his ruling, or send him an official statement that their application will be processed under current code if the court upholds his permitting from the Department of Environmental Protection.
Kroemer, who owns Squeeze Me Inn LLC, along with Edward Rood of Texas Holdem LLC, requested a permit from the DEP in 2015 so they could build a 1,500 square foot walkover through a Critical Wildlife Area in order to access the beach behind their properties.
The DEP issued a notice of intent to grant that permit on Sept. 29, 2016, triggering administrative action by the Town and a petition against the permitting by the Florida Audubon Society.
A year later, the property owners revised their initial proposal, relocating the boardwalk outside the limits of the CWA and making it shorter and smaller so that it would have less of an impact on shorebirds.
The Town and Audubon Society submitted another set of petitions to challenge the revisions.
According to court documents, they claimed that the DEP did not properly follow rules and procedures when reviewing the permit application, and that the walkover would adversely affect wildlife.
This would in turn have economic impacts on the tourism industry, as the Little Estero Island Critical Wildlife Area is a draw for tourists.
Nancy Douglas, southwest regional species biologist for Florida Fish and Wildlife, testified that the structure would “fundamentally change the character of the landscape there. As it stands now, there are no other structures of this nature in this area.”
She stated that the FWC “still has concerns in regards to the latest proposed project.”
Nesting shorebirds look for wide open spaces where predators can’t ambush them, and generally don’t nest near large structures, according to Douglas.
“I really appreciate that the applicants lowered this structure and removed the handrail. I think both of those things helped reduce the impacts, but as – no matter how you build this thing, it’s going to disrupt wildlife flow and use of the area,” she testified.
The DEP claimed “all sides agreed that the current vegetative state of the LEICWA has dramatically reduced its use by nesting seabirds”, and that the area in the immediate vicinity of the proposed boardwalk was already not a suitable habitat for the imperiled bird species in question.
Shane Johnson, an ecologist, testified that “vegetation and especially ground cover is too thick to be considered optimal habitat for nesting”.
Dr. Rob Young, who holds a PhD in Coastal Management, testified that as the LEICWA is a constantly changing habitat, the long term impacts of a structure like this are impossible to project.
A final administrative hearing between all parties was held on Sept. 19-21 of this year.
All recommended orders were submitted on Dec. 10, and they are currently awaiting a final ruling from the judge.