Dune walkover battle returns
The Town of Fort Myers Beach Council agreed Jan. 21 to hold a re-hearing Feb. 3 for the proposed 298-foot long dune walkover which it rejected in November after years of legal wrangling. The vote followed arguments among councilmembers as to whether the issue deserved a second hearing and whether it matters since the case could be headed back to the courts anyway.
Kurt Kroemer and Ed Rood, the owners of homes at 8170 and 8150 Estero Blvd. respectively through Squeeze Me Inn LLC and Texas Hold’ Em LLC requested the re-hearing. They have been at odds with the Town Council since they applied for a state permit in 2015 to build the boardwalk which has been proposed adjacent to the Little Estero Island Critical Wildlife Area. The latest decision from the state last year cleared a path for the walkover to be built if the town found that the project met its code. But the town council voted 3-2 against allowing the dune walkover in November.
On Jan. 21, Kroemer and Rood asked the board for another hearing and after some argument (minus an absent Joanne Shamp) the board agreed. Kroemer and Rood said they have already set in motion a separate legal challenge to the November decision.
Meanwhile, there seems to be little agreement on what to call the waterway separating the beach from the backyard of the property owners to the vegetation over which which the boardwalk would go. Kroemer and Rood say the waterway used to be a lagoon that connected to the Gulf of Mexico but say a sandbar has cut off their access. The Audubon Society and environmental advocates worry that the construction of such a dune walkover could affect birds in the Little Estero Island Critical Wildlife Area, which is directly adjacent to it.
The previous hearing resulted in a 3-2 vote by the council to reject the walkover with Mayor Anita Cereceda joined by council members Rexann Hosafros and Joanne Shamp in the majority. Council members Bruce Butcher and Ray Murphy voted for allowing the walkover. Kroemer and Rood have noted the Local Planning Agency’s unanimous vote for the walkover. Cereceda said that three members of the LPA are “very concerned” they received a different presentation than the one the town council had on the issue.
Town attorney John Herin said Kroemer and Rood have started a FLUEDRA legal motion which will lead to a mediator settling the dispute through a public hearing process or sending the case back through the courts.
Murphy argued vigorously to support a re-hearing and fervently supported the applicants at the November hearing.
“I say we vote today and see where the chips fall,” Murphy said. “What difference does it make delaying it?”
Butcher supported the motion.
Cereceda said the vote should be delayed until all five councilmembers are present.
“They have to show us new evidence,” Hosafros said. “There is no new evidence.”
The other requirement, she said, for a new hearing is if the council overlooked or misunderstood points of law, which she said the council didn’t do.
“This will put the town under a tremendous lawsuit, a tremendous costly lawsuit,” Murphy said. “For what?”
One of the main issues involves ownership of the land where the walkover would go. Attorney Martha Collins has represented the town in court during the case and said “this is not private property.” Decisions at the state level have found that the limited liability companies don’t own the area from the water and past the vegetation.
Collins says the walkover was moved several feet away from the LEICWA where it was originally proposed but that won’t stop the birds from being attracted to the spot where the walkover is.
A ruling by the DEP last year referred to a decision in which “The ALJ concluded that the preponderance of the evidence demonstrates that the lagoon is not tidally connected to the Gulf of Mexico, but is, rather, a feature that experiences no tidal ebb and flow and is, under normal conditions, disconnected from the Gulf of Mexico.”
“This is basically a sand bar,” said Collins of the barrier between the waterway bordering the property owners and the Gulf of Mexico. “They are trying to build a bridge to a sandbar.”
The decision also refers to threatened bird species that have been observed in the general vicinity of the Little Estero Island Critical Wildlife Area such as snowy plovers, American oystercatchers, black skimmers and least terns.
Due to the impact the walkover would have on vegetation, the applicants have proposed the purchase of saltwater forested mitigation bank credits and saltwater herbaceous mitigation bank credits in the Pine Island Mitigation Bank to offset the disturbance.
While the walkover may not be in the LEICWA, Collins said “it’s not like the birds know the difference.”
A tale of two beaches
Rood said the walkover will not interfere with birds feeding and claimed the property is not used for nesting. Rood, who runs a construction business in Texas, said the case is about “injustice.”
Rood says they had beach access before the sand disrupted their access to the Gulf of Mexico.
“This sand has grown every year. It has never stopped. It continues to grow,” he said.
There is the beach that goes from the back of his property out to the water with mangroves that go out to a boat dock. On the other side of that water is vegetation that Rood and Kroemer want to cross.
Kroemer said the environmental issues cited at the November hearing in front of the town council are no longer at issue.
“Those have been put to bed,” he said. “The town has ordinances. The question is do we meet those?”
Kroemer and Rood told the council a re-hearing was needed because “pertinent information was left out” of the agenda packet in November. Herin denied that was the case. Rood said there should have been a compromise solution.
“Why would the D.E.P and the U.S. Fish and Wildlife, why would they do all these studies and compile all this information over a period of a couple of years and end up issuing us permits when they are the very agencies the state has organized to protect the wildlife?”
“The DEP has given the town full authority to deny this project,” Collins said. “This is a town code decision and the town code doesn’t allow for this type of building.”
“They think they have a right to the barrier island,” she said. Collins said it would set a dangerous precedent whereby property owners could begin building bridges to the beach past land they do not own. “Private landowners do not own sandbars off their property,” Collins said.
The Feb. 3 town council meeting begins at 9 a.m. at town hall.