Marco Island’s City Council may be asked to review a settlement agreement that could reverse a decision made by its Code Enforcement Board on May 15.

In a historic three-day board hearing in early May, Key Marco Community Association and Greensward of Marco, a landscaping firm, were found responsible for egregiously violating city code by damaging, destroying and removing protected native vegetation in two habitat parks. Both were fined and restitution was ordered.

The parks lie within the 550 acres known as Horr’s Island or Key Marco, located on San Marco Road between the village of Goodland and Marco’s city center.

On Wednesday, Tarik Ayasun, chairman of the Code Enforcement Board, said he was taken aback when he received a policy alert from the Conservancy of Southwest Florida outlining an attempt by one council member to negotiate a settlement with the Key Marco association.

Marco Island City Manager Steve Thompson confirmed that such a meeting had taken place, declining to name the councilor who engineered it.

Citing willful disregard for the procedures for appeals and mitigation, Ayasun wrote in an e-mail to Rob Popoff, chairman of Marco Island’s City Council: “As chairman of the code enforcement board, I find the actions of this council member questionable at best.”

Marco Island City Manager Steve Thompson bristled at the accusation of any wrongdoing.

“This was a straightforward process,” he said. “A council member met with the Key Marco folks to see if this thing could be settled without further court action. I was asked to sit in on it.”

Andrew McElwaine, president of the Conservancy of Southwest Florida, viewed the attempt to negotiate outside of normal channels as highly inappropriate.

“Our lawyers have been heavily involved in this case,” said McElwaine. “We were surprised when we learned Vice Chairman Frank Recker and City Manager Steve Thompson met with the association.”

As an enforcement authority over Key Marco, the Conservancy has a stake in proceedings and assisted the city in its initial hearings that led to fines of $1,000 for Greensward and $5,500 for the association. Fines within the habitats, protected by several state and local agencies, could have been as high as $5,000 for each of the two violations and each defendant in the case.

The association also was directed to develop a mitigation plan and repair as much damage as possible. However, at the time of the decision, Marco’s chief code enforcement officer, Eric Wardle, said the damage was “irreversible and irreparable.”

When the code enforcement board made its ruling, McElwaine felt the city had two very strong cases. The Conservancy filed an amicus brief in support of the city’s decisions and to provide additional expert evidence.

He was perplexed when he heard negotiations for a settlement had begun. He contacted Thompson who told him the city planned to settle the case.

“Settlement will amount to surrender and set a dangerous precedent,” McElwaine said. “What good is a finding if an individual council member can negotiate reduced penalties prior to going to court.”

“A single member of City Council cannot make any decision,” said Thompson. “The entire council would have to make the decision.”

Nicole Ryan, governmental relations manager for the Conservancy has been following events in Key Marco for years.

“In 2006, we started seeing violations but tried to educate the people of Key Marco about protected native species,” Ryan said. “But violations kept occurring particularly in Tracts V and Z.”

Tract Z is home to the 5,000-year-old Indian mound, a native historical and archeological site.

McElwaine and Ryan believe the privately negotiated settlement includes reducing fines and reversing the code enforcement board’s determination that damage was done.

“There are three things at issue here,” said Ryan. “In addition to reduced fines and taking away determination that habitat has been destroyed, the settlement will compel the city to issue future permits based on something other than a case-by-case basis.”

Ryan pointed to the association’s vegetation management plan as evidence that other plants and tree species are likely to be removed.

“Although the plan says it provides a list of weeds that will be removed, it is actually a 58-page list of vegetation including live oak trees and other native species,” she said.

“The vegetation already removed was of a rare tropical hammock species that has been irreparably damaged and will not grow back.”

In 2008, the city, Key Marco association, Conservancy and Audubon of Florida agreed on a management plan for Key Marco that would make removing native vegetation within its preserves a violation.

The Conservancy is urging Marco Island residents to attend the Dec. 7 council meeting to protest the proposed settlement if it appears on the agenda or comes up during council discussion.

“What we will request the council to do is reaffirm the fact that they are in litigation and will continue with that litigation,” said McElwaine.

On Wednesday, Thompson said discussion of the settlement would not be part of Monday’s agenda.

The next step, according to Thompson, would be Key Marco’s attorney providing recommendations for settlement to the city attorney for review. Council then would probably review it in an executive session prior to public discussion, he said.

“If any negotiations take place, the Conservancy should be at the table,” McElwaine said. “If the city continues negotiating as they are, their actions could set a precedent that would not allow staff to determine on a case-by-case basis what can be removed.”

If that should happen, the Conservancy might have to take action to protect the very ordinances the city has on its books, said McElwaine.

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