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.

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