Will The Critical Wildlife Area Be Wiped Out?

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Beachfront property owners Eddie Rood and Kurt Kroemer, who’ve been asking the town to permit a dune walkover, for access to the beach from their properties, have filed a lawsuit against the state of Florida challenging the state’s claim of ownership of the property behind their homes.

The suit will confirm whether the property owners own the accreted land that has formed behind their properties over the last twenty years. Should they win the lawsuit, the current CWA borders might be dissolved and the land could become private property.

Rood and Kroemer tell Beach Talk Radio News, “Through this entire process, we have tried to keep the question of land ownership out of the legal discussions and we have had no desire to own the accreted upland property behind our homes, however, the town has now forced the issue.”

The homeowners say there were discussions with the Department of Environmental Protection early on in the State permitting process concerning their desire to own the accreted land and that both sides agreed there was no reason to upset the work of the FWC or change any boundaries to the CWA.

They have said their only interest was to regain beach access from their properties. Kroemer and Rood had communicated to town council, that ownership of the accreted land would be the next step in the process if Kroemer and Rood’s offer to settle the dispute over the walkover was declined.

When there’s a dispute over the ownership of land, a “Quiet Title” suit is the legal process used to resolve the conflict. On Oct. 1st, 2020, a lawsuit was filed in the 20th District Court of Lee County by Kroemer and Rood. The next step is for a judge to hear from both sides. No date has been set for that hearing as of yet.

Rood says the laws surrounding riparian rights of accretion are pretty clear. “Through our research over the past few years, our attorneys have discovered various FDEP documents which indicate the FDEP has concerns about their ability to defend the state’s ownership of the accreted land if the ownership is challenged in court. We shared some of this information with members of the current town council. Mayor Murphy took the time to contact the FDEP’s council, who confirmed that our information is accurate. The Mayor in turn attempted to convey the FDEP’s message to the other council members at a special meeting last June in an attempt to head off the ownership challenge and possible loss of the CWA, but it fell on deaf ears”.

Rood goes on to say that he and his attorney’s are confident they own the land behind their beachfront homes. “We are sorry it has come to this. We love the CWA and it is important to us also, after all, it is our backyard. The Town is jeopardizing the very thing they sought to protect just to stop a project that helps an entire neighborhood.”

Rood and Kroemer say they had direct beach access but lost it over time to the growing CWA and the fact that their neighbor blocked off access from behind his home when he discovered he actually owned land that people were using as a cut-through to the beach.

The Fort Myers Beach Local Planning Agency approved the Dune Walkover unanimously when it came before them. Jim Atterholt and Dan Allers, now town council members, were on the LPA at the time. Atterholt, Bill Veach and Rexann Hosafros are against granting a special exception to Rood and Kroemer. Allers and Mayor Ray Murphy are in favor of granting it with part of their reasoning being that they do not want to see the CWA dissolved.

One of the reasons councilman Atterholt has decided now not to grant the dune walkover is because he’s been told by town attorney John Herin that the town has a good case in the Bert Harris lawsuit.

It appears as if we’re all about to find out.

You can read the entire 307 page lawsuit filing HERE

14 COMMENTS

  1. If folks want to see both sides of the story first hand as all hearings on this case is public record. You can watch it on YouTube or on the town website. Maybe Ed will post links to all 3 hearings these fellas lost. You will also see first hand their bullying tactics as well as their attorneys bullying tactics. It’s almost entertaining the lengths they all took to instill fear…and it didn’t work cause they don’t own the land. Great job Jim, Rexann and Bill. Jim, I wouldn’t even respond to these guys. Let them continue their fight in court!!

  2. This story has become very boring! Jim did the right thing as did Rexann and Bill. It’s in the courts hands. Why does Eddie and Kurt feel the need to air their dirty laundry and continue to feel the need to plead and justify their case? WE DON’T WANT TO HEAR IT, AND WE DON’T WANT TO HEAR YOUR CONTINUED THREATS!! Fight your battle in court and if you’re so confident you’re going to win, why are you still trying to debate this and get the public involved? Go for it fellas, we will see you lose one more time…once and for all. THANKFUL THAT OUR COUNCIL DOESNT SUCCUMB TO THREATS AND ARN’T FEARFUL OF BULLYS WHO DON’T GET THEIR WAY! How’s the weather in Texas y’all? BTR, hope your future newsletter contains more interesting stories, please stop boring is with the Eddie and Kurt show! Thank you.

  3. On April 26th of 2017 the Town of Fort Myers Beach filed a similar lawsuit complaint in the same 20th Circuit Court of Lee County to resolve the ownership question between us and the FDEP under the direction of attorney Martha Collins ESQ. The lawsuit ended up being thrown out of court, as the town does not have standing, meaning, the town does not own this land. While we fully believe we do own this land, the FDEP was willing and defended the building permits for this walkover, located outside the CWA, without proving ownership. Contrary to Mr. Atterholt’s request below, the purpose of putting the dune walkover outside of the CWA is to help keep people from walking through the CWA. Currently, the public walks along all three sides of the CWA, which would be no different than us walking along the south end boundary.

    It has been clear since the November council meeting that the special exception was denied for personal opinions verses the special exception requirements and the facts as argued at the administrative hearing. Before voting to approve or deny, we assured each member of the LPA and each member of the Council had a copy of the judge’s orders, so they could read for themselves. They had an opportunity to research or call anyone for additional information. (Note, a copy of the judges orders are attached as an exhibit in the Quiet Title suit, available in the link of the main story above.)

    Personally, I am in disbelief that this council would put the FWC’s – CWA under risk, for land which they do not own, based on permitting already approved by the Department of “Environmental Protection.” When has a commonly built walkover in a dune environment ever had “impacts to the environment.” On the contrary, the purpose of the dune walkover, per the FDEP is to protect the dune and dune system environment. It is my opinion that boardwalks are beautiful in any beach environment. Eddie and my only objective continues to be pursuit of direct access to the beach, from our beach front properties, using a walkover as defined under the town’s ordinances. We have followed all the requirements of the Special Exception. As the town continues to deny our special exception due to reasons associated with the CWA, then it seems logical our next step is to confirm who owns the property holding the CWA boarders.

  4. Fair points Tom. Ed and Kim have been generous in the past in allowing me to appear on their show and I always welcome that opportunity. I am not sure that is the best place to litigate this matter. The Town is preparing to defend against litigation and it is not advisable to show one’s hand in advance. You are correct in that the “dune walkover” technically is not in the Critical Wild Area. I would argue that is just semantics as the proposed “dune walkover“ abuts the Critical Wildlife Area and it’s impacts on the environment are the same. I would like to address my vote on this issue when it came before the LPA. There was a unanimous vote in support but what is often forgotten is that only one side showed up to present. Do to problems in notification, the LPA only heard from the proponents of the “dune walkover.” When the matter later came before the Town Council, both sides were present and advocated for their respective positions. The Council therefore had the benefit of hearing from both sides.

    • I apologize, it’s hard for me to read Jim’s reply’s, so I feel compelled to point out just a couple fallacies in his response. First of all, if it matters that the walkover abuts the CWA, then what about all the homes and condos that abut the CWA? Jim’s reply will most likely be that the homes and condos are not in the Environmentally Critical “EC” area. What difference does that make, they all abut the CWA and would have the same effect and there is far more human traffic “in” the CWA created by the condos that abut the CWA than from this walkover which is not in the CWA. The CWA does not know what structures are in the EC and what is not.
      As far as Jim’s comment about the Audubon not being present at the LPA hearing where he joined all the other members for a unanimous vote to approve the walkover, I took the liberty of contacting every LPA member except Jim two months ago in August, and asked them if they knew then, all the info that has been presented since their vote last Oct 2019, how would they vote now? Only one LPA member said they would change their vote. So as of August this year, if the LPA vote were taken again, it would be 5 approve and 2 deny.
      Also, I have to ask at this point, if walkovers are the preferred method to protect the Environmentally Critical areas all over Florida by the DEP, including being used by the Audubon, why is this walkover different and “bad”?
      As far as not thinking that being on Beach Talk Radio is a good idea because of litigation, I would like to point out, there is no current lawsuits between the Town of FMB and Kirt and I. The new litigation over the ownership of the property is solely between the State of Florida and us, the Town has no involvement in this litigation, so I don’t know what “hand” Jim is revering to exposing? It would not have anything to do with the litigation between us and the State.

  5. Although I love Beach Talk Radio News, I hope your readers will reserve judgement until both sides of the story are told in court. Ed has powerfully described the position of the advocates of a “dune walkover” intrusion into our very pristine Critical Wildlife Area. I believe an even more convincing argument will come forth from the other side when both parties have their day in court. In the meantime, I encourage your readers to walk along the beach through the Critical Wildlife Area and make their own determination as to if a “dune walkover” would actually enhance this special preserve and therefore be in the public interest.

    • Can I suggest that Mr Atterholt give the other side of the story to Beach Talk Radio News so the readers don’t have to reserve judgment as he suggests. I am sure the readers would love to hear Mr Atterholt’s side of this. Also, it is my understanding the “walkover” is not located in the Critical Wildlife Area. Is it possible Mr Atterholt does not know this? I am only suggesting that “risk management” be applied and consider if a walkover is worth the risk of losing it “all”, as any successful business would do.

  6. I guess I am confused, Atterholt voted in favor of the walkover while he was serving on a different committee, and now he is voting against it because the Town attorney told him the Town has a good case in the Bert Harris lawsuit. Also, what does the Town attorney’s claim of the Town having a good case in the Bert Harris lawsuit have to do with the State possibly losing the Critical Wildlife Area in this Quiet Title lawsuit? The Town is who is ultimately losing the CWA if the State loses the lawsuit. Who cares about the Bert Harris, it is just over money that can be replaced. If the State lost the land and the CWA with it, that cannot be replaced. It would be a devastating blow to the Town of FMB, not so much for the State. Seems there is a lot at risk in this for the Town and not much to gain. Atterholt should reconsider his position.

  7. Seems like a lot to risk just to “find out” and I have read or heard that it is for the whole neighborhood? Why would the Town deny this walkover and take this risk and deny something that helps several property owners? Does this make sense?

  8. Only time and the court’s ruling will determine who actually owns the land between their back yards and the gulf’s high tide line. Should the court rule in favor of Rood and Kroemer it will have been a very risky, costly and unnecessary gamble by the town attorney and the three council members that voted the exception down.

  9. We never hear about “the neighbor who blocked off access”. Was that legal ? Seems to me the neighbor could solve this problem. Mary

    • Yes. Totally legal. He owned the property and people were using it to walk through to get to the beach.

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