Council Again Says No
In a case of Deja vu all over again, the Town Council of Fort Myers Beach on Tuesday, February 18, before a packed Town Hall Chambers that spilled over into the lobby, held the “Request for a Rehearing of the Special Exception to the Land Development Code (LDC) in the Environmentally Critical (EC) Zone for a Dune Walkover and Boardwalk for Texas Hold ‘Em LLC and Squeeze Me Inn LLC at 8150 & 8170 Estero Boulevard.”
Town Staff previously advised Council to deny it, the 7-member volunteer Local Planning Agency (LPA) unanimously recommended its approval with conditions in October 2019, and Council refused to grant the Special Exception three months ago to the date by a 3 to 2 vote, with Mayor Anita Cereceda and Council members Rexann Hosafros and Joanne Shamp voting to deny. This time, when the matter ended nearly three hours later, Council again refused the Special Exception by the exact same vote by the exact same members, with Vice Mayor Ray Murphy and Council member Bruce Butcher in support.
“This item comes back to you at the applicants’ request,” began Town Attorney John Herin, Jr. “The applicant must first demonstrate to you that they meet the criteria for a rehearing. If you agree, they must persuade Council to vote to approve their request based on new evidence since the original November 18, 2019, hearing or that you misunderstood something at that hearing that caused you to reach an incorrect decision. If they cannot persuade you, then Council will vote to uphold that original decision to deny the Special Exception. Your decision is based only upon what you hear today and no other information.” Herin then asked for all who planned to testify at the perspective rehearing to rise for the swearing-in and about half the room did so!
New Evidence or Misapplied Law
Amy Petrick of the Lewis, Longman & Walker Law Firm spoke for the applicants. “Thank you for the opportunity,” she said, “and I will make this as brief as possible.” Petrick called as her first witness Shane Johnson, the Senior Ecologist for Passarella & Associates, but halfway through his answer to Petrick’s first question, Hosafros interrupted. “We are limited to new issues of fact since the prior hearing or a misapplication of the law from the testimony from that hearing,” she said. “Please phrase your question so we understand what is new or not discovered previously. This does not fall within the purview; do my fellow Council members have any objection to this?”
Petrick stated, “This information has never been heard or seen before, so it will all be completely new information that we had no opportunity to provide at the original hearing,” but Cereceda cautioned her “to make this relevant.” Johnson testified, “The dune walkover will be beneficial to residents, to create a path to the beach where there is no fixed path, to create less impact on the dunes,” but Hosafros interjected once more: “Again, this is not new; this was all discoverable at the time of the original hearing. I am all about you getting a rehearing but you need to limit your testimony to new information,” with the Town Attorney adding, “or a misinterpretation of previous evidence.” Cereceda advised, “please limit yourself to new information.”
Petrick dismissed Johnson and called realtor Douglas Grant, but again halfway through his first answer, Cereceda asked, “What relevance is this?” Petrick responded, “We believe this will address evidence not understood at the last hearing,” but Cereceda stated, “We understand our Code, but thank you for that! Do we have to hear this?” The Town Attorney opined, “Not if it is not related to the criteria for the Special Exception application.” The clearly-frustrated Murphy forcefully commented, “We discussed the process twice as much as the case; let’s get on with this! I blocked out my whole day for this, as this is our last crack at this before it moves on to a court case!” “I respectfully disagree,” said Hosafros; “we can only allow a rehearing for a specific set of circumstances.” “I agree with the Town Attorney,” added Cereceda. “Mr. Grant can make his comments in ‘Public Comment,’” and Petrick dismissed him.
Petrick next called Kurt Kroemer, co-owner of Squeeze Me Inn, who cautioned Council, “We did not want to make this information public and wanted to keep this to ourselves but we uncovered information four years ago that the Little Estero Island Critical Wildlife Area (CWA) did not receive the approval of the upland owners of Fort Myers Beach. It was not our intent to challenge the CWA and the court will most likely dissolve it as the likely outcome. That is not where we want to go; all we want is a minor structure to gain back our access to the Gulf!” Hosafros noted, “You were in possession of this at the last hearing and did not present it, so this is not new,” with Cereceda agreeing, “you could have presented this and you didn’t.” Murphy cautioned, “We are forfeiting our right here on Fort Myers Beach to make this decision.”
Petrick called no further witnesses, concluding, “We ask you to consider what your LPA members indicated. The Special Exception goes right down the line with everything your Code requires. You may not like the Dune Walkover but it does meet the letter of your criteria for a Special Exception.” Cereceda asked Town Staff if they had a report. Community Development Director Jason Green said, “We can only present new material and there is nothing new.” Pamela Jo Hatley of The Collins Law Group that represented the Town and Audubon Florida throughout the entire legal proceeding since September 2016 added, “There is nothing new to bring forward, and I want to point out that there was nothing new brought forward by the other side at this hearing.”
Twenty-two people spoke during Public Comment, with twelve in favor of granting the Special Exception and ten against. Sally Page urged Council to approve the Special Exception: “I am in favor of the footbridge. Birds come and go, and have been gone for several years. The footbridge is not unreasonable and is a simple request backed by years of approval by various governing bodies, so let them build it and prevent an unnecessary lawsuit.” Barry Monroe added that the applicants “went through everything and got the permits. Birds will sit on the rail and do their thing, so I am in favor of Council giving them their Special Exception.”
Penny Jarrett, however, thanked Council “for denying this Special Exception. They say they want to only build a small structure but this is the length of a football field! It will obstruct pristine wildlife habitat, disrupt the paths the birds fly and bring more predators, all so a small group of people can have their own private access.” Brad Cornell of Audubon Florida reminded, “This habitat is unique, as there are only two places like this in Lee and Collier Counties, where so many birds nest. The Town made the correct decision to deny this boardwalk and I encourage you to confirm that again.”
The President of the adjacent Castle Beach Club Condominium Association at 8300 Estero Boulevard made perhaps the most interesting comment, reminding everyone that they granted a public beach access on the west side of their property in 1992 “that is just a short walk from your site” and invited Texas Hold ‘Em and Squeeze Me Inn to use that at any time.
Motion to Deny
Cereceda made the Motion to deny the Special Exception request “because in my opinion, I do not believe it is in compliance with the Land Development Code and Comp Plan.” Hosafros stated, “This matter before us asks to build a structure in the EC Zone and no one has that right, so I vote to deny.” Murphy however noted, “They received a Department of Environmental Protection (DEP) permit in 2016; a 2017 Florida Fish & Wildlife Conservation Commission permit, and in 2018 a DEP construction permit. In October 2019, our very own LPA approved the structure with conditions by a unanimous 7 to 0 vote! We have a fiduciary responsibility to our residents and so far this has cost $90,000 in hard legal costs, not counting Staff time, so I will vote the same way as last time.”
Shamp stated, “I voted last time to deny the Special Exception based on their entire body of evidence and they presented no new facts or misinterpretation of the law today to change my vote, so I deny.” Butcher stated, “As I look through the Special Exception criteria, I find it meets that argument, so I agree with Ray.” Cereceda called the vote and announced that Council again denied the Special Exception Application 3 to 2.