‘Dangerous’ seawalls? Naples sues property owners, turns out, City owns them

Over the last three years, hundreds of thousands of tax dollars were spent by the City of Naples to sue property owners along seawalls they said were in disrepair. As it turns out, the City owned the seawalls all along and they ultimately settled.

It’s all about a question that dates back to roughly 2012, six years before it went to court: Who owns these seawalls along Gulf Shore Boulevard North in Naples?

WINK News Investigative Reporter Sara Girard asked people in the area if they could guess.

“The City,” said Anita Makar, a resident for more than 25 years. She and other visitors and residents said they thought it was obvious.

“Because they are maintaining all of the sidewalks, they’re maintaining the parking lot, they’re maintaining the street all the way to the seawall which gives it a sound foundation to better protect the waterways,” said Naples resident Doug Nykolaycuyk.

But the verdict on the street wasn’t cut and dry.

“I’d have to give it to the private property,” Josh Smith said.

“[It belongs to] the association directly associated with the residents,” said Donna King-Nykolaycuyk.

Meanwhile, the City said it had plenty of reasons to think it wasn’t theirs.

“The City did extensive background searches to determine property ownership and determine that, in fact, the City did not own the seawall,” Former City Manager Bill Moss said. “It did own Gulf Shore Boulevard North. But clearly, the seawall was excluded when the City annexed park shore many years ago.”

Moss says those legal reviews came about around the same time as a 2013 sidewalk report that showed city sidewalks were cracking and came to the conclusion a seawall failing might be why.

It’s important to note a seawall isn’t just a wall, it’s an entire system that in this area extends roughly 18 feet inland underneath the public right-of-way.

The City thought more seawalls might start to fail.

“City funds should not be used to repair infrastructure that’s on private property,” Moss said.

Skip ahead to April 2018, the City thought the cost to fix the seawalls could be in the millions.

“If it were all to be replaced what would the cost estimates be for that? That’s where the 7.3-million-dollar number came up,” Naples Director of the Streets & Stormwater Department Gregg Strakaluse said in a presentation to the council on April 4, 2018.

In that same meeting, the city attorney at the time estimated filing suit might cost $25-30,000, maybe a little more.

“Keep in mind that all litigation is subject to what happens on the other side, even more than what happens on yours,” warned Robert Pritt, now former Naples City Attorney.

So in May 2018, the City of Naples sued four property owners: Outlot F Parkshore, Venetian Bay Yacht Club Condominium Association, Venetian Bay North Yacht Club Condominium Association, and Village on the Bay.

The complaint asked the court to declare the seawalls private property. It explained they’re a nuisance, in a “state of disrepair” and the potential damage will be “unsightly” and “dangerous.” And it asked the court to order the private owners repair them immediately. The three counts filed against the private property owners were a declaratory judgement, nuisance and injunction.

Former mayor Bill Barnett said the City was confident.

“We’d have a meeting and say, look, how about if we can settle this amicably. You pick up X percent, we’ll pick up X percent, whatever it’s going to cost,” Barnett said. “And it always ended up no, no, we think you own it, and what have you. So the lawsuits just went on and on.”

It went on until in late 2020, when each defendant fought back, filing sanctions against the City of Naples calling the suit “frivolous” and the City’s expert sidewalk report and expert witnesses “bogus.”

In those court documents, WINK News found that the City had continued on with the lawsuit despite the fact that it had already hired an engineer that year (its second expert) who determined only one of area’s seawalls was actually failing, which was very clearly along the water near Venetian Bay North Yacht Club.

The former city attorney’s office turned down WINK’s request for an interview.

In the end, the arbitrator decided the seawalls belong to the City, and the two sides settled in May 2021. This was all under a new mayor, city manager and city attorney.

In total, the City spent more than $341,000 in attorney’s fees on this case, and now according to the settlement, any costs to “replace, repair, or rebuild” those seawalls are Naples’ responsibility.

“We could have kept arguing or debating or contemplating who was actual owners, and the way that the settlement actually was reached, is we stopped with legal fees and moved forward in putting that money towards those repairs,” said current Mayor Teresa Heitmann, who even before she took office thought the seawalls were the city’s.

She believes settling the suit when the council did ultimately saved money.

“Procrastination and wasting money of the taxpayers is complete,” Heitmann said.

As someone who was there from the beginning, Council Member Gary Price doesn’t quite call a lawsuit a waste. He thinks in the end the council made the best decision it could.

“It’s easy to go back and say it should have been faster, we should have taken different paths,” Price said. “But I don’t ever think that we’ve ever made decisions for anything but the best interest and given the information we have.”

His only remaining concerns, shared by former leaders Bill Moss and Bill Barnett, are about what he says ended up negotiated out of the agreement, involving the installation of an eco-friendlier seawall material called rip rap.

“I thought that rip rap should be a part of it that and we’d be allowed to put rip rap in to improve the water quality, throughout wherever we’re going to fix the seawalls, if we’re going to own them,” Price explained. “And then the other piece was have if we’re going to own the seawalls, then we should be able to have control over access over those seawalls.”

Our reporter asked: “Is there enough wiggle room to where you could work with the property owners or people in the future to get those things accomplished?”

“Yeah, and I think that’s where I ended up. And I think that’s where the council ended up,” Price said.

Mayor Heitman says that’s all part of the discussion.

“We are in the process, the city’s engineer, consulting engineers currently examining that condition of the seawall to see, to give this council advice on how to repair that seawall and the adjoining sidewalk,” Heitmann said.

There’s no clear timeline yet on whether the City can use rip rap, when the seawall area along Venetian Bay North Yacht Club will be fixed or how much it’ll cost.

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