ISLAMORADA -- A couple who successfully pushed for the village to abandon an unimproved bayfront right-of-way on Upper Matecumbe Key in 2011 for environmental reasons is now building a home on that property.
John Kocol and Martha Edwards, who conjoined the 8,785 square feet of property they obtained in the abandonment with an adjacent property they already owned, are building a three-bedroom, 2 ¬½-bathroom home with a pool on the former right-of-way at the end of List Street.
They obtained the new property, which is located near mile marker 82, free of charge in the abandonment.
Though protecting public access to the waterway is often a sensitive issue in the Keys, the abandonment of the List Street waterfront right-of-way, which the Village Council passed in a unanimous vote on Dec. 15, 2011, was the end of a multistep process that generated little public debate.
By the time of the abandonment hearing, the council had already passed the required changes to Islamorada's comprehensive land-use plan and its land development regulations with next to no controversy, despite the fact that the changes were put forward clearly in meeting documents as necessary groundwork for the potential abandonment.
However, throughout the multiyear process, the public discussion about the proposed abandonment featured little, if any, talk about Kocol's and Edwards' intent to build a home there. Rather, Kocol concentrated his arguments on the environmental benefits of closing off that shoreline to the public. Planning department reports recommending the abandonment did the same.
In interviews last week, four of the five council members who voted for the List Street abandonment said they didn't know Kocol and Edwards planned to build on the site.
The fifth, Don Achenberg, said he doesn't recall knowing but isn't sure.
"If that was their intention, they should have disclosed that," Mayor Ken Philipson said. "Can we stop it? Probably not. Should we stop it? Probably not. But I think we have to learn our lessons."
Kocol, however, says council and staff members knew about his plans from the beginning.
"The whole thing was predicated on building a house," he said.
Indeed, in the abandonment application he submitted in August 2011, Kocol listed "residence site," as one of three uses he was proposing for the right-of-way.
But that document wasn't included in the report the planning department provided to the Village Council and made available to the general public ahead of the abandonment hearing.
What was included was the far more expansive statement Kocol made in an attachment to the abandonment application. There, he wrote that the reason he was proposing the move was to stabilize the shoreline of the right-of-way, which was eroding due to stormwater runoff. Erosion was also taking place, he wrote, because people were using the public access point to anchor dinghies and had illegally removed mangroves and trampled young mangroves that were growing in the gaps.
Kocol said last week that the idea of the abandonment came about with the assistance of Village Manager/Planning Director Ed Koconis. The two, he said, met 11 times between 2008 and 2010 to discuss what could be done about the eroding shoreline, especially in light of he and Edwards' desire to knock down and replace their then-existing home.
He also emphasized that as conditions of the village's abandonment of List Street, the shoreline portion of the right-of-way was put under a permanent conservation easement, and he and Edwards were required to install a fire hydrant on the nearby roadway.
The home they're now building, Kocol said, will include a rooftop cistern, a permeable driveway and a stormwater swale, all of which will improve the erosion problem.
He said if his and Edwards' plan to build a home at the end of List Street wasn't aired in public meetings, or in the agendas for those meetings, then the planning staff is to blame.
In response, Koconis said he assumes his planning staff simply focused on Kocol's detailed application supplement when putting together that agenda package and not on the one-sentence in the cover page where "residence site" was mentioned.
Koconis said he knew Kocol and Edwards planned to knock down their home and build a new one, but he doesn't remember whether they discussed locating the home on the abandonment property.
Still, said Koconis, once the village abandons a property, it shouldn't be a surprise when the adjacent property owner puts it to use.
"It becomes their property," he said.
A second go-round
List Street isn't the village's first experience with abandoning a waterfront right-of-way. In 2003, as part of a legal settlement, the council voted to abandon the unimproved oceanside footprint of DeLeon Avenue, near mile marker 83.
The vote was taken even though village code at the time prohibited giveaways of right-of-ways ending at the water.
Shortly thereafter, the new owners of the roadway evicted all the tenants of the adjacent Pelican Palms trailer park as part of a plan for an upscale home development that included the trailer park and the former DeLeon right-of-way. The home community was ultimately foiled by the real estate market collapse, but the abandonment caused a political backlash that lasted years.
In July 2010, at the start of the formal List Street process, members of the village's Local Planning Agency may well have remembered that battle as they recommended denial of Kocol's request to change the comprehensive land-use plan to allow for the abandonment of unimproved right-of-ways that end at the water.
Minutes of the meeting reflect that Kocol made the same arguments for the abandonment that day as he did when he filed the formal abandonment application more than a year later. The minutes make no mention of him talking about building a home on the site.
The LPA voted 4-2 against the change, expressing concern, among other things, about limiting the public's water access. Councilman Ted Blackburn, who was then on the LPA, was among the majority.
Nevertheless, when the council of Achenberg, Philipson, Michael Reckwerdt, Dave Purdo and Bob Johnson heard the matter for the first time two weeks later, they were so keen to support the proposal that Kocol decided not to bother making a presentation he had planned. The change passed 5-0.
Ten months later, ahead of a vote on another regulatory change that was required before List Street could be abandoned, Blackburn, who by then had replaced Johnson on the council, asked whether the ordinance would allow owners to build on the property they obtain through an abandonment.
Planner Jay Berenzweig said yes.
Though the new law was crafted so it would impact only List Street among the village's right-of-ways, no council member followed by asking whether Kocol and Edwards intended to build.
The council's discussion ahead of its Dec. 15, 2011, abandonment vote was no more probing. The board asked no questions of Kocol or Edwards before approving the giveaway unanimously. Nobody raised the issue of whether the couple planned to build a home there.
Blackburn, last week, said he'll never vote again to give away public access to the water. He said he had assumed that Kocol and Edwards planned to build on their original property while using the right-of-way as a buffer against erosion.
"Did I ask the right questions? It doesn't sound like I did," he said.