… and now there’s a fence …

October 22, 2021
By Marcy Shortuse

BY MARCY SHORTUSE – The question of who owns the beach – and the water, for that matter – along Charlotte Harbor at Hill Tide Estates has been raised again, as there is now a semi-permanent fence at the southern boundary of the gated community … a fence that stretches out into the water during both high and low tide.

The location in question, which the Lee County Property Appraiser lists on their site as “access undetermined,” has been used for decades by beach walkers. In fact, at the public meeting held by Hill Tide Estates developers Seagate Development Group, LLC and BNB Homes, Inc. on November 20, 2015, Attorney Chuck Basinait (an attorney with the Henderson, Franklin, Starnes & Holt firm out of Fort Myers) said they hadn’t “vetted it yet” when asked if the public would still be able to walk that beach. His exact words were, “We haven’t vetted that yet. It’s one of those questions I would love to be able to answer. I don’t know why we would want to cut off access. We will try to work it out. We don’t want to take it away from anyone.”

Apparently, the developers found a reason that they wanted to cut off access, because for the last few months they have gone from posting a security guard and signage at their southern property line to putting up a fence.

According to the constitution of the State of Florida, all beaches below the “mean high-water line,” or the wet sand, are public. Court cases have found that the public has the right to the dry sand parts of beaches in two instances:

• One is if the public has established a “prescriptive easement,” using a particular beach for the past 20 years without objection from private landowners.

• The other is through “customary use,” which is the “ancient,” peaceful use of the beach by the public. This beach definitely meets that standard.

Inquiries to Florida Power & Light Co., the previous owners of the property, plus state and county officials confirmed that the Hill Tide developer Seagate Development Group out of Fort Myers owns the beach next to its property down to the mean high water line.

Betsy Clayton, Communications Director for Lee County, said that while this is a state-regulated issue, fences erected in this county typically need a permit from the Department of Community Development. They were currently looking into whether a permit had been filed as of press time.

The Florida Department of Environmental Protection was also notified about the matter. They are also looking into what permissions were given, if any, to put the fence in place.

We will have more information for you (hopefully) next week.