A history of miscommunication with Lee County: the Promenade

November 15, 2019
By Marcy Shortuse

The controversy surrounding the Promenade – a walkway that runs along the land by the seawall from 1st Street to 4th Street – hasn’t always been so convoluted. 
While county officials are now backtracking and saying private deed restrictions aren’t within their scope of responsibility, answers in the past have been wildly different. 
With so many people taking notice of the issue, we thought a look back at previous articles might explain a lot more about why there is so much confusion regarding ownership of the narrow, short strip of land that means so much to so many. 
According to Robert Johnson, a resident of the island whose family ran pilot boats at Port Boca Grande for generations, people have been trying to stop people from walking the Promenade for more than a decade.
“When I was involved, I thought it was determined that Lee County owned the Promenade,” he said. “I was told it was residual land left over from the road that had run in front of the property that had washed away. That’s why the Promenade was public. 
“This has been going on for at least 50 years, and it is time it stops. The public should have that right of way, and the County should act in the public interest.”
The problem with enforcement at this time, it seems, is that the County isn’t sure whether they should be enforcing the right to promenade or not. On July 1 of this year, Lee County Communications Director Betsy Clayton checked with code enforcement officials who told her, “Per the deed, nothing is supposed to be built or erected in the Promenade. The pathway is supposed to remain clear. Typically we notice that individuals in the community remind each other that private citizens are not supposed to plant plants or place items in the Promenade, but when there is a path with nothing obstructing it, sometimes we do not receive complaints.”
However, just two weeks ago another public information officer asked someone else at code enforcement about the Promenade, and they were told the Promenade easement was a private deed restriction, and that the County would not enforce it. He then addressed the issue of the rocks at 3rd Street that have been placed in the walkway, and said it seemed to be all right for them to be there because a permit was not necessary to place them there. 
This leads to the question for many: If that is the case, can we not just re- arrange the rocks?
On March 16, 2018 we ran a story that gave more specific details as to how the Promenade came about in 1927. 
“From 4th Street to 1st Street, the land along the seawall has been publicly owned since a deal was struck for one dollar in April of 1927. The land ownership document from April 12, 1927 shows an indenture between the Boca Grande Corporation and Boca Grande Associates, Inc., which describes the fact that people in our community have the right to, as the document states, “bathe and promenade,” and that “no fences or other structures of any kind shall be built … ” on the walkway along the beach. The original photographs of the Promenade show a road running along the beach, which correlates with Johnson’s statement about it being an easement.
But it gets stickier. Last year the Promenade was discussed at the April meeting of the Boca Grande Historic Preservation Board after some residents received letters from code enforcement and threats of fines for impeding the path. One family’s home addition was so close to the easement that the wall was considered to be obstructing the Promenade. The Boca Grande Historic Preservation Board addressed confusion over the Promenade. Pat Ball from Ball Construction followed up on a code violation for property owned by his clients, Mr. and Mrs. Fehsenfeld. They had a case that was reviewed by the Boca Grande Historic Preservation Board (COA20145-00114) when they added a family room and elevator. They have since received a violation notice from Lee County Code Enforcement stating they built walls into the Promenade (a 16 foot right-of-way). Ball clarified that he did not build those walls and that they have existed in the Promenade for a long time. Ball stated that he was told to remove the walls where they encroach into the Promenade. In addition, he was told initially that if the matter was not taken care of in 15 days, the owners would be charged a fine of $250 per day.
Ball added that he called code enforcement and they told him not to worry about the letter and the fine.
He followed up with an email thanking them for the conversation and said he assumed it would never be a problem again.
Ball received an email back saying, “Don’t assume anything.”
“So it’s obviously still a problem, and I think it would be appropriate if my clients received a letter stating that the very threatening code enforcement violation was done in error,” he said.
At that meeting, board member Becky Paterson stated she has a client who received a similar violation notice. She requested that a representative from the County Attorney’s office attend the April meeting to discuss this issue. Paterson said she initiated a phone call with Lee County Code enforcement and was told that the department had a meeting with the County Attorney, and it was determined that they no longer had jurisdiction over the Promenade.
On an island which features multimillion-dollar beachfront homes, one could logically think that this agreement might have come into question a time or two. And one would be right.
In 1988 a letter between a client and his attorney (names redacted for protection of identity) addressed this very situation. It stated, “… the deed reveals that the area of land which lies between the western property lines of Blocks 17, 1 and 2 going westerly to the Gulf of Mexico was deeded to the Boca Grande Associates in April of 1927. Note that on page 2, paragraph 2 of the Deed, the subject walkway has been reserved to the use by the owners of lots in Boca Grande and the members of their families and their guests. As a result, the aforementioned people have a right pursuant to a valid conveyance to utilize the walkway area and additionally, even assuming that there were some way to invalidate the deed, it is my opinion that these same people have a relatively strong argument concerning use of the walkway via a prescriptive right. The end result is that there does not appear to be any legal mechanism by which you can close down the walkway area to pedestrian traffic.”
Will the County solidify its decision to stay out of Promenade business based on a private deed restriction, even though it directly affects everyone on the island? Will someone possibly come forward with a suit of their own to help expedite the decision? Stay tuned. We will keep you posted.