After a vote failed (3-2) Monday to issue Eddie Rood and Kurt Kroemer their permit for a special exception that has already been approved, the Fort Myers Beach Town Council made the issue an agenda item for their September 25th meeting.
Rood and Kroemer believe their permit is being held hostage by the town after the town council approved a special exception for them to build the 293-foot structure back in March by a vote of 3-2.
Town attorney Becky Voss told the council Monday there is no law prohibiting the council from issuing the permit. The reason the town hasn’t yet issued the homeowners their permit is because in April the Audubon Society filed a lawsuit against the town (and Rood and Kroemer) trying to halt the construction of the structure which would be built on the edge of the Critical Wildlife Area behind Rood and Kroemer’s homes. The permit was being withheld on the advice of the previous Town Attorney John Herin who this council recently replaced.
Town Attorney Voss told the council that there was an indication there could be a lawsuit filed against the town by the homeowners if they did not issue a permit for the special exception that they previously approved.
Rood and Kroemer sent us a statement after the decision made by the council Monday: “We really don’t have a strategy to file more lawsuits against the town at this time. Although the process gives us that option, as the Town Attorney confirmed. Kurt and I are hoping the council follows their attorney’s advice when she stated there is no legal precedent to hold the permit. We believe the Town Council made the right decision for our neighborhood and the Critical Wildlife Area with the past vote to approve the permit. As has been stated, the DEP has supported and defended our projects permits. We and our neighborhood want to forge a positive relationship with the Town that benefits the environment and the wildlife on our beach going forward.”
Rood and Kroemer have said they are willing to sign and indemnification letter with the town which would hold the town harmless if the Audubon were to win their lawsuit and the walkover needed to be taken town. Voss said, as part of any indemnification agreement, if the town was forced to take down the walkover for some reason, the town would be able to put a lien on Rood and Kroemer’s property for the cost to remove the structure.
The Town Council voted to put the item on their September 25th agenda to allow attorney’s for Rood and Kroemer and representatives from the Audubon Society to attend and provide any additional input they might have on the issue. Voss told the council there was no downside to making it an agenda item on the 25th.
The Audubon is alleging that the Town Council ignored its own staff and did not follow the rules of its own charter by approving the walkover. Prior to Town Council approval, the Local Planning Agency voted in favor of the dune walkover by a vote of 6-1.
There’s no indication when the lawsuit will even come up on the docket of the court in which it’s filed. Rood and Kroemer believe the lawsuit should have no bearing on their permit. The town voted to issue the special exception to build and they want their permit delivered as promised.
In the lawsuit the Florida Audubon states that “the proposed bridge/dune walkover will significantly harm imperiled listed species of migratory and nesting shore and seabirds, and their habitats, which are adjacent and near to this proposed structure.”
Rood and Kroemer were hoping to start the process of constructing the walkover when turtle nesting season ends next month. For years they have claimed that they lost direct access to the beach, behind their homes, due to the constantly shifting Critical Wildlife Area. They say they had access to the beach when they bought their properties.