By a vote of 3-2 the Fort Myers Beach town council voted to reject an offer made by Estero Boulevard homeowners Eddie Rood and Kurt Kroemer. The homeowners are seeking a special exception for a long wooden walkway that would give them access to the beach behind their homes. The town has denied Rood and Kroemer the special exception they need to build the walkway.
Rood and Kroemer say they once had access to the beach. They had to walk behind a neighbor’s home to get to a spot where they could make it down to the beach, but it got them there. Rood and Kroemer say without beach access their homes are worth a lot less.
They, and several other homeowners in that area of Estero Boulevard live on a stretch of Fort Myers Beach that is home to a Critical Wildlife Area. Over time, and with help from Mother Nature, hurricanes and the changing tide, the CWA has expanded and shifted on the beach. And that CWA is playing a crucial role in the battle over this dune walkover.
A group in the community believes that building this walkway would be damaging to the wildlife in the CWA. That group includes the Audubon Society, several members on the council and others in the community. The walkway was proposed just outside the CWA but without the town’s special exception it cannot be built.
The town’s Local Planning Agency unanimously recommended approval. Town staff recommended rejecting the special exception.
In an attempt to avoid a costly lawsuit, Rood and Kroemer made the town an offer to end the fight. Here’s what they proposed to give to the town in return for approval of their special exception request:
#1) Rood and Kroemner will make a one-time payment of $105,000 to the town to offset the loss of a grant that was turned down by the Lee County Tourist Development Council, due to the present uncertainty caused by the COVID 19 pandemic, to provide for public restrooms.
#2) Rood and Kroemer will grant an easement to the seven, similarly affected neighbors, as recommended by the Land Planning Agency, to access and use the proposed dune walkover. Specifically, a ten-foot easement along the waterward portion of the Claimants’ respective properties will be surveyed after the Town’s approval of the Settlement Agreement. The easement agreement for the ten-foot access as well as the agreement providing the seven homeowners the right to access the dune walkover will be executed once the walkover is constructed and the final construction is approved by the Town.
#3) The parties will agree to execute mutual releases in favor of the other party of any and all claims arising from or that could have arisen from the proposed dune walkover.
#4) Each party would bear its own attorney’s fees and costs associated with this matter.
On Monday, Mayor Ray Murphy attempted to sway the council to take the offer, avoid a lawsuit that could cost the taxpayers millions of dollars and save the Critical Wildlife Area. Why would taking the offer save the CWA? Because Rood says he plans to file a quiet title claim which will prove the homeowners own the land where the CWA now sits and that will be the end of the CWA.
Mayor Murphy says he’s been told by state representatives the town has a weak case. “I’m relying on the experts, the professionals at DEP and FWC. This is not giving in. To me this is not worth the risk of exposing the town. I know when to cut bait. It’s now. This is a loser no matter which way you look at it.”
The Mayor believes extending the fight with the homeowners will lead to those opposed to the walkway losing all the land they were trying to protect.
Rood has said if the special exception is approved he has no plans to file the silent title claim to take ownership of the CWA land.
Council member Bill Veach and Vice Mayor Rexann Hosafros are vehemently opposed to giving in. Veach said their case is not strong and he doesn’t believe they ever had access to the beach. “They never had access. There’s no claim to it.”
Both council members Dan Allers and Jim Atterholt were on the LPA when it was unanimously approved. Allers stood with Mayor Murphy on the side of taking the offer.
It was all up to Atterholt.
He kept his comments short: “I’m not going to litigate it here. I don’t believe settlement is in the public interest.”
The town has about 110 days to respond to Rood and Kroemer’s claim. They could make a counter-offer or this could go to court as part of a Bert Harris lawsuit. So far the town has spent over $250,000 to fight this issue. There’s the potential that they could win in court and prevent the homeowners from building the walkway. But at the same time there’s the potential that a court could decide that denying the homeowners the access they say they once had to the beach, devalued their homes, and the taxpayers would have to pay the difference between a home with beach access and a home without.