Editorial: In support of MERTF, walkover building permit shouldn’t be issued during ongoing litigation
At a time when a steady drumbeat of Fort Myers Beach residents, businessowners and town officials say that delays in permitting are the biggest challenge to the island’s rebuild – one permit has gained special attention.
That is the special exception permit for a 298-feet bridge bordering the Little Estero Island Critical Wildlife Area at 8150 Estero Blvd. and 8170 Estero Blvd., which would cross state lagoons that feed into the critical wildlife area.
While the permit was controversially approved by the town council in a 3-2 vote in March despite years of opposition from previous councils that included two votes rejecting the permit and numerous lawsuits, the building permit has not been issued due to litigation from Audubon Florida challenging the council’s decision.
That could change. New Town of Fort Myers Beach Attorney Becky Vose brought the building permit issue back to life at a council meeting Sept. 11 for discussion in which the council voted 3-2 against issuing the building permit. Councilmembers John King and Karen Woodson voted to issue the permit while Mayor Dan Allers, Vice Mayor Jim Atterholt and Councilmember Bill Veach voted against doing so. Yet the matter will again be on the council’s agenda Sept. 25. The council could potentially issue the building permit despite the court case.
The decision will rest on Allers, who voted in March in favor of the special exception permit but who has supported waiting to issue the building permit in light of the ongoing litigation from Audubon Florida. That’s standard practice in most lawsuits challenging government decisions.
Mayor Allers said he wanted the item discussed Sept. 25 to give all sides a chance to speak on the issue. Vose said Sept. 11 that she had contacted the attorney for the permit applicants but not Audubon Florida.
In a recent exchange with the Fort Myers Beach Observer, Allers said “our biggest challenge we face today is getting our permit process fixed.”
Building a 298-feet boardwalk next to a critical wildlife area would not seem to be as important as permits for those rebuilding their homes or businesses.
Fort Myers Beach Vice Mayor Jim Atterholt said he was surprised the building permit issue was raised again since “nothing has changed” regarding the litigation, which is awaiting action from a circuit court judge.
“An inordinate amount of time has been spent on this issue,” Atterholt said. “I continue to feel this dune walkover is not in the public’s interest.”
Audubon Florida challenged the issuance of the permits over concerns for the bridge encroaching on wetlands and disturbances to the nearby nesting sites of threatened and protected birds such as snowy plovers, least terns, black skimmers and Wilson’s plovers. Former town attorney John Herin Jr. warned the council of the risk of being held liable for damages to the area if it issued the building permit despite the active litigation. There could be double damage to the sensitive environment if the bridge was installed and then ordered to be removed.
Town staff recommended denial of the special exception permit in March for not being consistent with the town’s comprehensive plan or local development code (the bridge would be placed in the town’s environmentally critical area) yet the council persisted in approving the permit. Councils since 2016 have opposed what they saw as a threat to the fragile ecosystem in the area. Audubon Florida considers the Little Estero Island Critical Wildlife Area to be one of only two such imperiled shorebird and seabird nesting areas of its magnitude in all of Southwest Florida. The critical wildlife area is home to more than 60 wintering, nesting and foraging coastal birds according to the Florida Fish and Wildlife Conservation Commission, including federally protected migratory American oystercatchers and piping plovers.
We believe the town should wait until all legal challenges from Audubon Florida challenging the council’s approval of the special exception permit have subsided before a building permit is issued for the bridge. Once ground is broken at such an ecologically sensitive area, it can’t be reversed. In a poll of 77 of our readers online this week, more than 84% of respondents shared this view.
MERTF
The recent push to issue a building permit for the walkover coincides with a social media campaign against sitting members of the town’s Marine and Environmental Resources Task Force (MERTF), which has opposed the issuance of the permits.
Three members of the advisory committee are up for reappointment – Vice Chair Dr. Gregory Fossum, Wendy DeGaetano and Mary Rose Spalletta. Fossum and Spalletta are longtime veterans of the committee. DeGaetano and Spalletta are retired teachers who have helped the Fort Myers Beach Elementary School with environmental projects and have extensive knowledge in the committee’s subject matter. Spalletta is a volunteer for Turtle Time and DeGaetano is a Florida Master Naturalist.
The campaign to replace them was orchestrated by those friendly to the efforts of Kurt Kroemer and Ed Rood, the applicants for the boardwalk permit. At a council meeting this summer, John Cameron – one of several neighbors who stand to gain access to the boardwalk, called on the council to remove members of MERTF during a tirade that lasted more than five minutes during public comment. After going over his three minutes of time to speak – Allers told Cameron to “take his time” during which Cameron continued to denigrate the volunteers of the task force.
Ms. Woodson would follow-up by calling Cameron’s comments “brave” and said she agreed.
Why? Because MERTF opposed the special exception permit and building permit for a walkover in an environmentally critical zone? MERTF exists to remind the town council of the marine and environmental resources issues and the town’s environmental codes.
We are concerned the town council may choose to replace members of MERTF with those who may have opinions that align with the majority of the town council.
Of the five people (excluding the three members who reapplied) to apply for the MERTF seats, only two are registered voters in the town and one of them is Mr. Rood. Rood unsuccessfully sued the town in federal court claiming the denial of the walkover violated his rights under the Americans with Disabilities Act. Rood even challenged the legality of the state’s ownership of the critical wildlife area – a case currently on hold.
Appointing Rood would represent a cynical and dismissive view of the committee.
Asked whether he could consider appointing replacements to MERTF, Allers said he “will review all submitted applications and give them equal consideration.”
The town’s code relating to its advisory committees does not treat all candidates equally though. Preference is given to registered voters or property owners. The code also states that consideration should be given to those with expertise and experience in the subject matter – that would give the sitting members of the committee a clear edge.
We spoke to several former mayors and councilmembers who served multiple terms on the town council going back to its founding in 1995 and only one could cite a specific instance where an advisory committee member seeking reappointment was replaced.
All three MERTF members up for reappointment are registered voters in the town with vast experience. Replacing them would signal to the community that this council is not interested in hearing from opposing views or interested in protecting the environment.
Fort Myers Beach Observer Editorial