(OPINION) The Dune Walkover. The Best Path Forward?

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(By Steve Duello) Regardless of whether people approve or disapprove of the homeowners building their dune walkover there are significant financial and environmental repercussions to consider.

To this point the Town of Fort Myers Beach has chosen to oppose the walkover and several lawsuits are pending or on the horizon. Fort Myers Beach Mayor Ray Murphy’s statement during the June 4, 2020 Town Council Meeting has been lost in the shuffle. Go to YouTube HERE and watch the segment starting at approximately the 51:20 mark where Mayor Murphy speaks about losing the CWA after speaking with FDEP’s head council Justin Wolfe.

Conventional wisdom says Rood and Kroemer may very well prevail in their lawsuit claiming property ownership to the mean high water line; If so the town is at risk of losing the Critical Wildlife Area, and be accountable for legal and financial costs approaching in my estimation about $10 million dollars, including:
* The town’s litigation fees estimated in excess of a half a million dollars and still mounting.
* Further litigation could drag on for years creating a situation where beach renourishment cannot move forward. Keep in mind the Leonardo Arms property drastically needs immediate beach re-nourishment.
* Further litigation could drag on for years resulting in additional legal costs to the town.
* The Town of FMB may need to pay the 1.3 million cost for the island’s south end re-nourishment because they will run out of time waiting for a court decision on the ownership.
* In pending litigation the Rood/Kroemer Burt Harris lawsuit is hanging over the town’s head and could result in damages of approximately 1.5 million in devaluation to the two properties due to the town’s denial of the walkway.
* In a possible second phase of litigation where the other 7 property owners affected by the town’s denial of the walkover filed lawsuits to challenge property ownership and subsequently filed their own Burt Harris lawsuits — could result in approx 700k/$750k in damages per property from devaluation due to the Town’s denial of the walkover.
* Finally there is the 1.5 million claim for discrimination in the Rood ADA lawsuit.
All in all, the total financial exposure to the Town of FMB could approach 10 million dollars(or more) to stop a walkover. A walkover that would be a tremendous value to the community of 9 homes and is a reasonable accommodation per the State Administrative hearing the Town has previously lost.
And very importantly the possible loss of the Critical Wildlife Area.

No one knows how the lawsuits will end but it is prudent to weigh the benefits and risks of either scenario and consider the possible consequences to the Town and it’s taxpayers.

What is the best path going forward? Continue the fight to deny the walkover and hope for the best? Or vote to approve the walkover and avoid the significant risks?

At the very least shouldn’t the topic be placed on the meeting agenda for discussion and a re-vote? Town Council Members need to be on record, voters need to know the details and they need to know where the council members stand.

Steve Duello is a resident of Fort Myers Beach and can be reached by e-mail at sduello@charter.net

9 COMMENTS

  1. I don’t believe that particular fact has been lost. Or that it matters. Stay tuned, watch how the lawsuits turn out and decide then what’s what.

  2. During BTR first interview with Rood, he was asked if his property had beach access when he bought it. His response was beach access through a neighbors private property, so basically not directly from his own property. This simple fact seems to have been lost in the noise.

  3. It is important to know that we are asking for nothing more than what is allowed to us by law. The FMB ordinances allow and support walkovers and we have not asked for any deviations. We have been open to design changes and we are allowing our neighbors to use the walkover per the LPA request. Beach front property owners have a riparian right to access the Gulf from their land. (Florida Statute Chapter 253 Section 141). It is sad this council is willing to give up the CWA for us to prove this point.

  4. Perhaps this case isn’t as complicated as some believe.
    Public lands and critical wildlife areas have a huge relationship with the concept of the public interest, which certainly may be, should be, an important piece of this case.
    Steve does a good in presenting the risk. But the people who pay the freight at Town Hall should hear their legal team’s conclusions on the law and its relationship to this case. That would allow residents to decide for themselves the degree of risk
    Yes, Florida law allows legal strategy in a government case be discussed with public boards in private. But strategy is one thing, explaining the government’s position, and why, by the public’s legal team of specialists in this type of law is another.
    Let’s hear from them.

    • Good comments Lee and I will address Barb’s comment below. One fact is that the Town does not own this land. For 5 years, the FDEP and us have left the ownership issue out of the walkover permitting requirements. We received all building permits from the FDEP, except the 1 required from the town. It was the town saying we cannot have a permit, because the CWA is too close. The property ownership in the coming litigation will come down to laws of accretion. If the ruling says we own it, (which I truly believe), then the CWA boundaries will no longer exist. Sure, the FDEP could move the CWA boundary, but they will have the same issue with the neighbor next door, and the next and the next. As Steve said, time will tell, however, this is litigation that does not need to happen, if the town just approved our permit on land they do not own.

  5. Who owns the property where the proposed dune walkover would be built? Who owned the property at the site of the walkover when the plaintiffs purchased their property?

  6. Time will tell. Who knows, the town may prevail making my concerns moot. It’s an opinion piece Lee, with open ended questions and possible scenarios.

  7. Sounds like the attorney for the plaintiffs.
    How about we hear from the town’s legal team.
    You know, balance. From the folks versed in the law.

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