Eddie Rood and Kurt Kroemer believe they should have access to the beach from their homes on Estero Boulevard. All they need is a special exception from the town so they can build a long structure that would take them there. The Fort Myers Beach Town Council will not approve that special exception.
A little history
Rood and Kroemer did have access to the beach at one time. 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, Kroemer 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.
Another issue that plays a role in this fight is how property lines are determined behind each home on the beach. That ownership is determined on the mean high-tide line which is recalculated every 14 years by the state. The most recent update determined that the mean high-tide line was a lot further away from the homes than it used to be when the tide would come right up to seawalls built behind each structure.
Remember that neighbor’s home Rood and Kroemer were walking behind to get to the beach? With much more property now in his possession, he built a fence, effectively closing off access to the beach. Add to that, the Critical Wildlife Area, over the years, had expanded so far it was now behind Rood and Kroemer’s homes. No more beach access.
Rood and Kroemer worked with the state to get the permits needed to build their walkover. It was adjusted to skirt around the Critical Wildlife Area and they went to the previous town council for the special exception. Denied. They appealed, claiming they had new information. Also denied.
Rood says the town is claiming they are attempting to stop the project to protect the environment and the endangered nesting birds. He says that’s just not true. “It was determined in a state court that our walkover will not disturb the environment and there are no endangered nesting birds in the proximity of the project. This ruling by the state court was a result of multiple lawsuits filed against Kurt and I that the town lost. It was actually determined at the state court hearing that our walkover would be a benefit to the environment and wildlife and the permits that were issued by the Florida DEP and Fish and Wildlife were justified because our project was a benefit as determined by those agencies. The town’s actions are no different than the opposition attempting to stop the TPI project. They are both manipulating the legal system in an attempt to stop a project that has been determined by the State Court to be rightfully deserved. The bottom line is the Town staff simply does not want it, just like the opponent’s of TPI don’t want it, they just don’t want it. Unfortunately, just not wanting something won’t hold up in a legal battle.”
Another piece of this puzzle is who actually owns the property inside the Critical Wildlife Area. The new mean high-tide line, which determines how much of the beach the property owner owns, is now on the outside of the CWA. Rood also contends he has evidence that the CWA was drawn up illegally and shouldn’t even exist. That’s evidence he has not shown to anyone yet. Some of the current town council members have taken that as a threat suggesting if Rood doesn’t get his way he plans to take ownership of that CWA property behind his home.
Rood and Kroemer say they bought their homes, in part, because of the access to the beach. And while the town has every right to deny the special exception, they do not have the right to devalue their homes, which they claim is exactly what happens without beach access. They are moving toward with what is called a Bert Harris lawsuit, which, if they win could cost town residents millions of dollars. Residents would have to pay the difference in the values of the two homes without beach access. They may also have to pay attorney’s fees.
Following the most recent election, Mayor Ray Murphy appeared to want to avoid both litigation and the possibility of losing the Critical Wildlife Area. New council members Dan Allers and Jim Atterholdt were both on the Local Planing Agency, which unanimously approved the dune walkover. Allers appears to be ready to end this fight. Councilman Bill Veach is vehemently opposed to approving it and Vice Mayor Rexann Hosafras is also opposed. The town attorney has advised the council he believes they have a strong case if this reaches the Bert Harris lawsuit stage.
The town has already spent at least $250,000 on this issue. If it goes to a Bert Harris lawsuit the town will need to hire outside council to help Herin.
Last week 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.
The town has a little less than 150 days to respond to the offer.
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