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The Marco Island City Council met in a special called workshop to hear City Attorney Alan Gabriel review issues surrounding the ongoing $8.5 million improvements to the Smokehouse Bay Bridge and the impact it had on The Esplanade 1 property owners and The Esplanade Marina Association.

Gabriel provided a matrix of eight separate issues that he and the legal representative for The Esplanade had been discussing. He was quick to describe the discussions as amiable and productive.

Esplanade property owners have maintained that the city encroached on condominium property and took away some riparian rights. The owners hired an attorney who has been looking into the city’s actions, said John Arceri, former council member and a resident of the condo facility.

When contacted for comment about the ongoing discussions, former council member Bill Trotter, president of The Esplanade 1, declined comment, saying he would comment when all discussions are complete.

When The Esplanade PUD was originally drawn up between the developer and the city, the original paperwork called for a Permanent Maintenance Easement, which would have provided for the city’s access to some of the property owned by The Esplanade for the purposes of maintaining some of the city’s infrastructure such as roadway, bridges and sidewalks areas, city staff said.

However, further inspection found the original paperwork was never recorded with the appropriate agencies, therefore necessitating the need for a Temporary Construction Easement, which was never applied for.

Items 1 & 2 of the report by Gabriel dealt with these issues and a recommendation by Gabriel to compensate $6,750 for the Temporary Construction Easement and compensate The Esplanade 1 Association $8,450 for a Permanent Maintenance Easement to ensure safe access for repairs and maintenance to the bridge, its approaches and ancillary items. Item 3 as presented to the council was directly related to the first two items and called for the city to restore the landscaping to its original condition. The Esplanade had already accepted the city’s proposal and both utilize the same landscaping service.

Council was receptive to Item 4, which called for the city to help minimize the visual impact of the retaining wall for the approach lanes for the southbound lanes of the bridge. Councilman Joe Batte was receptive to helping to mitigate the visual aesthetics of the wall and was joined by several other members. Public Works Director Tim Pinter had proposed utilizing some of the anticipated landscaped materials being bid later in the week for use in the medians on either side of the bridge to help minimize the financial impact to the overall project.

Item 5 dealt with a small loop sidewalk that no longer has a purpose due to the realignment of the original seawall and the new sidewalk that will parallel the roadway. The Esplanade wants the city to pay for the removal of that sidewalk and restoring the area to “blend in with the other areas.” The city would consider either doing the work or reimbursing The Esplanade for the project.

Gabriel suggested the Item 6, which is directly related to the easements in Items 1 and 2, should be merged. The Esplanade was requesting the city pay them for a “5 foot Sidewalk Easement” at an original price of $5,200, but were willing to accept $4,368. Gabriel was suggesting $3,120 and leaving it at a 10-foot width to conform with the remainder of the walkways.

One of the most contentious issues lay with the Item 7 concerning the claims of a loss of riparian rights being claimed by Esplanade Marina Association. They were originally requesting to be paid a total of $60,000 to compensate for the loss of about 30 feet of seawall due to the reconstruction of the seawall area under the bridge.

Gabriel had originally thought that a figure closer to $30,000 might be more in line, but that was before his office had received an opinion from Cunningham and Durance, a consulting engineering firm from Tallahassee that specializes in such matters, with fees paid by the city.

Stuart Cunningham wrote in a memo dated June 17 that the city was, in fact, the owner and not The Esplanade.

That sparked a considerable debate amongs council members. Councilman Victor Rios voiced concern that he believed Gabriel was going to seek out a legal opinion and not one from an engineering firm.

“I was led to believe you were going to get a legal expert’s opinion,” said Rios.

Gabriel did point out that these were the experts and that he had consulted with their own team of attorneys who deal in eminent domain issues, but that the head of that division was involved in a trial and he couldn’t get his sign off.

“I’m concerned about negating riparian rights for anyone in a canal,” commented councilman Larry Honig. “I’d rather not go down that road.”

Council members Joe Batte, Bob Brown, Ken Honecker and Larry Sacher joined to suggest that before moving forward they first hear from the team leader in Gabriel’s office on the riparian rights issue. Regarding attorney’s fees, Gabriel was unclear what the number for The Esplanade attorney might be, but estimated somewhere between $18,000 and $25,000.

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