The proposed conversion of an unused railbed into a public trail between Bonita Beach and Alico roads has developed into a tug-of-war between trail proponents and homeowners along part of the proposed route.
The latest tug came when property owners near the proposed Bonita Estero Rail Trail were advised they may be eligible to receive compensation by suing the federal government -- if the project is approved.
The Lewis Rice law firm of St. Louis held informational sessions recently in Estero for those directly affected by the rail trail. That means anyone whose land runs adjacent to the tracks or for communities the tracks intersect.
The 14-mile linear park, which would replace the Seminole Gulf Railway between Bonita Beach and Alico roads, partially bisects the golf course at The Vines and Estero Country Club, a gated community off South Cleveland Avenue. The trail also would partially run through the backyards of homes between Matanzas and Iris roads in San Carlos Park.
Recreation proponents says the rail-trail also could tie into the Fort Myers John Yarbrough Linear Park at Six Mile Cypress.
Some residents opposed to the park have called for a smaller 12-mile trail, diverting trail users down Estero Boulevard just south of these communities.
Attorneys Lindsay Brinton and Meghan Largent said their firm contacted about 150 property owners to inform them of their rights under state law and the Fifth Amendment to the U.S. Constitution.
“This is not authorized under state law,” Brinton said. “But federal law can come in and preempt, or trump, state law. That’s what’s happening here.”
Florida law states that when a railroad easement discontinues its designated purpose, the railroad right-of-way terminates. If the easement was obtained from the landowner at the time the railroad was built, the property reverts to the current landowner.
Eminent domain, however, allows the government to seize the land and use the right-of-way for public use. But the Fifth Amendment states, in part, that the government cannot take private property for public use “without just compensation.”
“Unfortunately, they don’t just roll over and pay people,” Brinton said. “They have to actually sue the federal government to receive this compensation.”
The federal government does not provide notice to landowners of these conversions. Instead, it reports it in the Federal Register, a journal that contains public notices.
“In the 15-plus years that I’ve been doing these cases, no one has actually ever read the Federal Register,” Brinton said.
Last month, the Metropolitan Planning Organization (MPO) — an entity that helps Lee County with transportation development — approved the rail trail to go forward with a project development and environmental study. At the meeting, residents submitted their opinions to the planning board.
“How do us elderly golfers avoid hitting these trail users with our miss-hit golf shots, being as the railroad goes right through the middle of our golf course,” Vines resident Norma Eves asked in one such opinion.
Another Vines resident addressed the risk of security issues by having a trail enter through the community.
“My daily walks would no longer feel safe in my own neighborhood,” Jane Sotebeer said. “Walking alone in the evening would stop for fear of not knowing who might have gone ‘off trail’.”
The Surface Transportation Board (STB) is the federal agency with jurisdiction over railroads in interstate commerce. Owners of the rail line must file a petition with the STB to declare it abandoned before the tracks can be sold. Once abandoned, the door opens for a trail sponsor to come in and begin negotiations for a rail trail. Brinton said the deal is “blessed” at that point.
“What we’ve seen now, most recently, is that the trail use agreement has already been reached,” Brinton said.
But Largent said the most difficult aspect of this case is that ownership rights are not the same for every property owner on the right-of-way. If the rail line obtained rights to the land through a deed, or permission from the landowner, the current property owner has a right to the soil under the tracks.
Brinton contends that the property value will decrease after the rail trail is built, and some homeowners agree.
Denise Scheck, a homeowner in San Carlos Park, said the trail borders her backyard. Safety is not her only worry.
“I am also concerned about the negative impact this will have on the value of my property,” Scheck wrote in her email she submitted to MPO. “I love my home and cherish a quiet private sanctuary in my yard. Please don’t take that away from me and all of my neighbors.”
“Please leave San Carlos Park alone,” she added.
“Based on my experience as a realtor and land developer in Indiana, I fear this project will hinder the value of our homes at the Vines as well as discourage future potential residents from buying,” Vines resident Helen Wolfe wrote.
Ron Gogoi, the transportation planning administrator for MPO, said studies show otherwise.
“You’ll see articles on trails and how they benefit homeowners and that it increases the property value,” he said. “The property values within like a mile of the corridor increase more as you go towards the trail.”
According to a 2001 study done by the Pinellas County MPO, property values increase for homes located near trails.
“Property data indicate that trailside residential property values are increasing by two to three percent annually over countywide residential properties,” the study concluded.
To assess damages, the value is determined by what the property would be worth without the easement. That could include removing the ability to add a pool to that property or to expand the house. It also considers the dirt value of the strip of land the easement is on.
Brinton said most attorneys' fees are also reimbursed directly from the federal government and that past landowners have recovered 75-80% of these fees.
Diana Ackerman and her husband, Bruce, live at The Vines, and they attended the Lewis Rice informational session as representatives for their community. Diana Ackerman said she and her husband have made no decision on whether to engage Lewis Rice.
“All we’re doing is getting all of our ducks in a row so that, if we have to, we are at least prepared to know how we’re proceeding forward,” she said. “But until then, we’re hoping that everyone comes together and works cooperatively and creates a trail that benefits all and harms none.”
Seminole Gulf Railway still is negotiating to sell the tracks, but filing the lawsuit will have no impact on the rail-trail project, if approved.
Lewis Rice has represented property owners in Sarasota County affected by the 18.5-mile Legacy Trail. In 2021, they negotiated a $1.4 million settlement for 30 landowners, with 40 more currently in the final stages of the lawsuit. The firm has represented about 150 cases nationally, involving thousands of landowners.
“Meghan and I always say we’re trail neutral,” Brinton said, referring to Largent. “Whether you’re pro-trail, anti-trail, the reality is, you have a constitutional right to be paid for the taking.”