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Fort Myers Beach Council to walkover: No deal

August 18, 2020
Nathan Mayberg ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

After a half hour of arguments from councilmembers over whether to end a years-long battle over a proposed dune walkover, Councilmember Jim Atterholt settled the discussion with 15 words.

"I don't believe the settlement offer before us is in the public interest - my position," Atterholt said.

Atterholt was referring to the offer from Kurt Kroemer and Ed Rood to pay the town $105,000 and drop a notice of claim in exchange for a special exception to construct a 298-feet long walkover behind their properties near the Little Estero Island Critical Wildlife Area that has also been described as a lagoon walkover and boardwalk.

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Kroemer and Rood applied for a special exception to construct the walkover but were denied by the town council at a hearing last year and a re-hearing earlier this year. The denials followed a protracted legal battle whereby they received conditional approval from the state to construct the walkover if the town determined it would meet its code. Concerns for the impact to the Little Estero Island Critical Wildlife Area which is adjacent to the site in question behind 8150 and 8170 Estero Boulevard have stood in the way of the walkover.

Kroemer and Rood filed a Bert J. Harris Private Property Rights Protection Act notice of claim against the town over what they claim is the devaluation of their property by not being able to build a walkover and gain access to the beach. Rood acquired his property at 8150 Estero Boulevard in 2011 and retains ownership through Texas Holdem LLC. Kroemer acquired the 8170 Estero Boulevard property, which he rents out, in 2012 and owns it through Squeeze Me Inn LLC. The pair pulled out of the FLUEDRA mediation process back in June before it was scheduled to begin.

They offered to drop their notice of claim and pay the town $105,000 if the council approved the walkover. The duo would grant a 10-foot easement for seven neighbors to access the walkover.

By rejecting the settlement, the council directed Town Attorney John Herin Jr. to proceed with defending the town from the claim including the process of obtaining an appraisal of the land.

Councilmember Dan Allers called on the council to allow the dune walkover, which he supported on the Local Planning Agency (LPA). Councilmember Bill Veach argued against the approval, calling it a "bridge" and "a lagoon walkover" and that its intent was to cross the water, not the primary dune which is further away. The shifting nature of the area has altered a historical access to the beach, the applicants claim.

"This is not a dune walkover," Veach said. "It's not a dune walkover by intent. It's not a dune walkover by design."

Allers made it a property rights issue. "For me, this is a case of a property owner's rights and I would stick up for their rights just like I would stick up for anybody else's rights," he said.

Vice Mayor Rexann Hosafros said the LPA's recommendation to approve the walkover was flawed as not all sides were noticed to attend. "I'm going to discount the LPA at this point because they didn't have both sides presented to them fairly," Hosafros said.

Allers said that one of the arguments against granting the special exception was that it didn't contain a public benefit. Allers said he hasn't been able to "find a definition of public benefit. What exactly is public benefit? I can't find it and nobody can supply it to me."

Veach used an example of a condo with a pool, which benefits "a lot of people" but is not a public benefit. The public means "anybody," he said.

"This is not going to benefit the public," Hosafros said. "I am not going to be able to go down there and cut through somebody's yard and go to the beach. It's not for the public."

Mayor Ray Murphy said "the brass tacks" is "it's no secret that I've been talking to these people (the walkover applicants) about it" and that "they are going to file suit for quiet title for that property."

Murphy referred to Florida Department of Environmental Protection officials who he has previously stated have indicated potential issues with defending state ownership of the Critical Wildlife Area. The Critical Wildlife Area is the purview of the Florida Fish and Wildlife Conservation Commission.

Veach said he believes the Bert J. Harris claim is not strong. "They are claiming damages that we took something away from them, that we didn't take away, that they never had," Veach said. "If you give in to something that has this little basis to it than you are opening yourself up to everybody and their brother charging you."

Murphy said his position was based on information from the state agencies. "To me, it's not worth the risk," he said. "I just think it's throwing good money after bad at this point. I truly believe it's a loser."



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