Parties have been told to be set for a June trial in the case that will determine who owns the property where the Critical Wildlife Area sits on Fort Myers Beach.
The trial between the State of Florida and homeowners Eddie Rood and Kurt Kroemer will take place in Lee County Circuit Court. Who owns that property could prove to be very important.
The suit was filed by Rood and Kroemer against the state so it could be determined who owns the property. And, the suit stems from the Town of Fort Myers Beach denying the homeowners a special exception to build a walkover due to the proximity of the CWA. Rood and Kroemer say the walkover is needed after they lost access to the beach when a neighbor built a fence (legally) blocking the only access they had behind their homes. The town has spent hundreds of thousands of dollars fighting the walkover.
Both sides have submitted a list of survey and mapping expert witnesses to the court they hope will convince the court of ownership. Rood and Kroemer believe they have the documentation to prove they own the land and they have the money to push their case as far as it needs to go.
Testimony from Richard Malloy should be interesting. Malloy is the Chief at the Bureau of Survey and Mapping Division of State Lands for the Florida Department of Environmental Protection. He’s being called as an expert witness by both sides which indicates he may have been involved in communications between the parties in determining who owns the land.
The Town of Fort Myers Beach Town Council is divided about this issue. Mayor Ray Murphy and Councilman Dan Allers would like to grant the special exception and stop the town from spending money on the matter. However, Vice Mayor Rexann Hosafros, Councilman Bill Veach and Councilman Jim Atterholt oppose the walkover for environmental reasons. They believe a long walkover would be a detriment to the birds in CWA. There are others who say that’s not true, that the birds would not be harmed.
At one point along the way there appeared to be a compromise in the works, if Rood and Kroemer would allow the public to use their walkover. They rejected that idea due to the potential for liability on their privately owned property
A monkey wrench was thrown into the issue earlier this year when Mike Poff the President of Coastal Engineering Consultants, dropped a multi-million dollar bombshell on the town council. Poff put together a comprehensive plan for the entire 6.5 miles of shoreline that would renourish critically eroded areas of the beach. Poff said if the state owns the CWA the state would pay 100% of the beach renourishment costs because some of that area has been deemed as critically eroding. If it turns out the homeowners own the land in which the CWA sits that could run the town portion of the total bill up by millions of dollars. The length of shoreline within the Little Estero Island Critical Wildlife Area is approximately 5,662 feet.
Also in a recent court filing Rood and Kroemer have asked the state to either admit (or deny) these 12 points so they are on the record. They believe if the state admits to these requests it will help them build a stronger case against the town.
1. Admit that the disputed property is non-navigable in character.
2. Admit that the disputed property is nontidal and is not affected by the tides of the Gulf of Mexico.
3. Admit that the current condition of the disputed property is the result of land accreting onto or within the disputed property, a portion of which has been designated as a Critical Wildlife Area.
4. Admit that the state does not own title to the land immediately east of the eastern boundary of the Critical Wildlife Area.
5. Admit that the state does not own title to the portion of the disputed property lying immediately east of and excluded from the surveyed boundary of the Critical Wildlife Area.
6. Admit that the state does not own title to the dry portions of accreted land within the disputed property surrounding the Critical Wildlife Area.
7. Admit that members of the public and Plaintiffs cannot access navigable waters from the disputed property without crossing the Critical Wildlife Area or crossing private property.
8. Admit that the disputed property is located entirely landward of the current mean high water line.
9. Admit that the mean-high water line has been relocated to the south of the disputed Property, adjacent to the open waters of the Gulf of Mexico.
10. Admit that the mean-high water line is seaward of the Critical Wildlife Area.
11. Admit that the Plaintiffs have riparian rights to the Gulf of Mexico, west of the Disputed Property.
12. Admit that Plaintiffs are riparian property owners.
The state has until December 20th to respond to the 12 points above.
Rood and Kroemer have always claimed they would not have staked any claim to the land if the town simply granted them a special use permit to build a walkover so their neighborhood could access the beach from their homes.
Even if it’s determined that Rood and Kroemer own the land it’s unclear if they could do anything to the CWA other than remove the border which is on their portion of the land. And it doesn’t mean they can build a walkover. Without the town granting the special exception it doesn’t matter what the state decides. Where it will most likely make a difference is in a Bert Harris lawsuit.
If the homeowners file a Bert Harris lawsuit they would fight the town for the monetary difference in what their homes are worth with access to the beach, compared to what they are worth without access to the beach.
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