FMB Attorney Weighs in on Dune Walkover

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Fort Myers Beach town attorney John Herin has weighed in on the case between the State of Florida and Estero Boulevard homeowners Eddie Rood and Kurt Kroemer. The town is not a party in that lawsuit, however the outcome is extremely important to the town. There are millions of dollars on the line.

Rood and Kroemer are suing the state of Florida over who owns the land behind their homes where the state designated Critical Wildlife Area now sits. The homeowners claim they had access to the beach, and as the CWA shifted over time, they lost access, when their neighbor built a hedge blocking that access.

Rood and Kroemer requested a special exception to build a wooden walkover to the beach around the edge of the Critical Wildlife Area. The previous town council denied their request. The current town council is still one vote short of approving it. More on that, later in our story.

The state filed for ownership of “Little Estero Island” back in 1981 and has decades of aerial pictures showing how the area has grown and shifted. For many of those years the area was determined to be part of the Gulf of Mexico (submerged land) because the water was completely attached. However, due to accretion and the shifting, the water from the Gulf of Mexico is no longer attached to the CWA. That area is now designated as a lagoon.

The state contends that not only could that lagoon connect to the Gulf of Mexico again in the future, due to the dynamic shifts in that area, it also owns the lagoon, because it was created from the Gulf of Mexico. The state also argues that Rood and Kroemer cannot claim ownership of the land now because it is not the product of accretion that originated from their own land. “The dry lands are Little Estero Island that migrated towards Estero Island ultimately attaching east of the plaintiffs’ properties. This is not accretion. The lands were sovereign lands and did not lose its sovereign character once it attached to Estero Island. The lagoon is still the waters of the Gulf of Mexico and remain sovereign land to this day.”

The state argues that Rood and Kroemer only own property to the lagoon and nothing further, that all land from the lagoon to the Gulf is owned by the state. Rood and Kroemer believe they own the land to the high tide water line of the Gulf, on the other side of the lagoon.

As we reported on June 14th, the State of Florida has filed a motion to dismiss the lawsuit, called a summary judgment. Town attorney John Herin updated the town council on the issue yesterday because so much Fort Myers Beach taxpayer money rides on this decision. Here’s what he told them: “A motion for summary judgment is filed when the moving party is confident that it can prove there is no genuine dispute of any material fact in the case and the moving party is entitled to the judgment as a matter of law, or as stated by the Florida Supreme Court: “[A] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

As we pointed out on June 14th, Rood and Kroemer plan to respond to summary judgment motion. Herin told the town council that Rood and Kroemer also have an opportunity to file their own summary judgment.

There are two sidebar issues that will be impacted by this case. The first is the $32 million beach renourishment issue slated to begin in the summer of 2023. That project will be funded by the state, Lee County and the town of Fort Myers Beach. If the state owns the land where the Critical Wildlife Area sits, the state pays 100 percent of the expense for beach renourishment in that area. If the state loses its case to Rood and Kroemer, that expense moves to town taxpayers.

The second possible financial issue is a potential Bert Harris lawsuit the homeowners plan to file against the town for denying their walkover. Of course, that also includes more litigation. The homeowners, who are already into this issue for millions of dollars, would argue that their homes are worth a lot less money without access to the beach as they are with access. And, that the town council is denying them access to the beach. Even if Rood and Kroemer win their lawsuit the town does not have to grant the special exception for the walkover. Rood has also filed an ADA lawsuit against the town about this issue.

Interestingly enough this town council appeared to be ready to approve the dune walkover with the condition that the public be allowed to use it. Rood and Kroemer nixed that idea due to the possible liability. They are willing to allow the homeowners in their neighborhood to use it.

Another factor now in play is the election. The town council will lose one vote preventing the approval of the walkover when Rexann Hosafros leaves office. At least two of the new candidates would vote to approve it. We’ll find out tomorrow how Karen Woodson would vote.

Herin advised the town council that the state’s motion for summary judgment will likely be heard at the end of August. There is also non-binding arbitration scheduled for August. Herin advised the council that if the case continues to a trial, that would be held in October.

16 COMMENTS

  1. Hello, Folks. As a property owner in FMB for many years I have followed this matter with interest. And let me emphasize at the outset that I have no dog in this fight. But I do have a couple of questions, the answers for which I have not been able to ascertain from the news coverage.

    First, when the current owners purchased their property, was the lagoon already in place? If so, this sounds similar to the case of the individual who gets a good deal on a house because it is located at the end of an airport runway, and who then tries to close down the airport to increase the property value. Alternatively, if the lagoon materialized after the property owners made their purchase, it would seem that there is a strong case for granting them some relief.

    Second, if as the state claims the property line ends at the lagoon, then presuming the lagoon is tidal it would seem that anyone could walk below the high water mark to access the beach. So I am puzzled about how a neighbor could deny access.

    It would appear that one compromise to settle this would be to allow those on the lagoon to build a crossover that is available to all those with property on the lagoon. I can understand why the current owners are reticent to allow the general public access, as it would turn that access into a public highway. But it would also seem appropriate to make sure that all property owners on the lagoon had deeded access to the walkover to make sure that access could not be denied in the future. We see these types of deals all the time, for example, when vacation cottages in remote areas share a single well and where access is deeded but all those involved are required to contribute financially to the upkeep.

    Anyway, one hopes that this is resolved amicably sooner rather than later.

    • Keith, thanks for your comments and lots to discuss. To your first question, yes, the lagoon was already in place. The deed I bought with my property says my southern property line goes to the Gulf of Mexico. This is the Mean High Tide Line. With this deed, comes riparian rights. Those rights (FS 253.144) give egress and ingress to navigable waters. The lagoon is not navigable per a ALJ ruling brought on by a FMB town lawsuit, which the town lost. Thus, simply put, beach front property owners have a right to access the Gulf from their properties.
      Second, in the same lawsuit, the ALJ judge ruled the lagoon is not tidal. It has completely closed off from the Gulf, thus the ownership transfers to the upland property owners. The lagoon is non tidal and non-navigable, which is our argument with the State.
      Third, during our Special Exception permitting process, we had to go before the FMB LPA committee. To get their approval, we agreed to let seven other neighbors have access to the walkover, thus, accomplishing exactly what you suggest. However, even then, three council members denied our permit after all seven LPA members approved. We did our best to be accommodating, time will tell how this ends.

  2. A expensive mess at the cost of every other taxpayer on Fort Myers Beach.
    I see no harm
    In a boardwalk like every other walk way in a natural area.
    I don’t believe anyone will use this other than neighboring houses as there is no parking anywhere and you can get to the beach multiple other ways if you are a visitor.

  3. As pertaining to protecting wildlife why then is it okay to build and use elevated walkways in nature preserves all over the state but somehow a walkover in this location is so horrible? It makes no sense. I say all of the elevated walkways should be removed — let’s start with the newly renovated walkways at the Matanzas Pass Preserve.

  4. Lee — Aren’t there nature preserves all around SW Florida and throughout the state that have elevated walkways for pedestrian traffic??

    • Steve, true, but those lands have no ownership issues.
      This case appears to attach tightly to the question of whose land it is. My guess is the state has attached its position on the land being sovereign land to its right to protect a CWA on its lands. It certainly has remained firm on both issues.
      It seems to me if the state wins it is not up to the town to allow a boardwalk but the state.
      I think the state is right on both issues. I am not a lawyer of course. I just always side with protecting soverign lands and CWAs.

      • Lee, we are trying to protect the CWA also, that’s the purpose of the walkover the Town of FMB is denying. Walkovers are the FDEP’s preferred method of protecting environmentally sensitive ares all over the state of Florida just as Matanzas Pass on FMB. They are a good thing, that’s the reason the FDEP approved the permit. The Town of FMB has forced our hand in the ownership issue by denying our local permit. Kurt and I are also in favor of protecting state lands and the CWA, but not at the expense of our personal property rights. Please consider if you were the beach front property owner that can’t get to the beach and paying beach front property taxes.

  5. The state decided long ago there should be wildlife protection areas. Once it decided that it was the state’s responsibility to protect them. That’s what the state is doing here. Good for it.

  6. If/When the judge rejects the States’ Summary Judgement, I will tell you that the needle of winning will be pointing to the homeowners. The Judge rejecting the States stated facts means the issues are not so clear.
    The State and the homeowners agreed years ago to keep the land ownership issue out of the walkover permitting process. FDEP and Army Corp of Engineers all permitted the walkover while leaving the CWA intact. Unfortunately, it is the opinion of a few council members who are requiring us to prove ownership to maintain our access rights to the beach.

  7. The state of Florida’s summary judgement is only their side of the argument, it is their story about how they believe. The opening line should be “Once upon a time”. Rood and Kroemer will also tell their side of the argument, their story about what they believe. It also could be “Once upon a time”. Both sides present their story supporting what they believe. The judge will consider both stories equally. This process is a formality of the legal process. This will go to trial if it is not settled by arbitration. The judge will not throw this case out, it is a very complex issue with far to much evidence and expert opinion to be argued on both sides. It will probably be one of the most interesting cases he will preside over.

  8. What a super gigantic, self inflicted mess this is. All because 3 councilors don’t want the homeowners to build an elevated walkway over a lagoon that no one can or would see anyway. The town lost its argument once they agreed to approve the walkover if they agreed to public access. If the walkover is bad for the CWA and bad for the environment then wouldn’t it still be bad if the public had access to it?!

      • You mention 2 points in the article,
        1. “The town is not a party in that lawsuit, however the outcome is extremely important to the town. There are millions of dollars on the line.”
        2. “Town attorney John Herin updated the town council on the issue yesterday because so much Fort Myers Beach taxpayer money rides on this decision.”
        Councilman Jim Atterholt said on one of your shows that no part of this lawsuit will cost the FMB taxpayers anything, win or lose. Help us understand why you claim this lawsuit against the state, not the town, will cost local FMB taxpayers so much tax dollars. I don’t think your comments are accurate but please share how local taxpayers will be financially affected, win or lose?

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