Submitted City Code Enforcement
MARCO ISLAND — Key Marco Community Association was slapped with fines and a requirement to mitigate what the code board ruled, about one year ago, was irreparable damage to protected habitat in Key Marco.
While the association has appealed the code board’s decision in Collier Circuit Court, the mitigation plan that was to be filed with the city by June 15, 2009, remains unapproved by the city.
Three proposed mitigation plans later, Key Marco and the city still can’t seem to agree, which led Chief of Code Enforcement Eric Wardle to bring the case before the Code Enforcement Board on Tuesday afternoon.
He requested fines of $250 per day for the association’s lack of filing an acceptable mitigation plan in time.
“I remember a year ago when you (Key Marco) said we shouldn’t even be here, this should have gone directly to mitigation... Now we’re here a year later still waiting to mitigate,” said Code Enforcement Board member Lou Prigge to Key Marco’s attorney, Casey Weidenmiller, of the Salvatori & Wood law firm.
The case against Key Marco, and their landscaper, Greensward of Marco, developed into a three-day hearing last year, and both parties were found responsible for egregious violations committed against two protected native habitat parks in the 550-acre area known as Horr’s Island, or Key Marco, located on San Marco Road outside the village of Goodland.
One environmentally protected area of vegetation removal beyond what was permitted by the city was to the Indian Mound, which is among the oldest in North America. The other area is an 8.5-acre native habitat park located near the entrance to the gated community.
City code enforcement officials ruled that the damage caused by Eileen Ward of Greensward and the Key Marco Community Association was “irreversible and irreparable.”
Weidenmiller said Tuesday that the delay in mitigating that damage isn’t merely a fault of Key Marco’s association.
“I think we’re seeing another example where the staff is not working with my client,” he said.
City Environmental Specialist Nancy Richie has been key due to her expertise, working with Wardle and Community Development Director Steve Olmsted, all of whom declined Key Marco’s mitigation proposals.
The mitigation plan was due June 15 and after it was declined, Key Marco had until July 24 to present a new plan. The first two plans were declined because new planting was not included and that was the key part of the requirement, Wardle said.
Further, the second plan was presented nearly six months late, on Jan. 7, he reported.
On Friday, Wardle said, a third plan was presented, but it too was declined.
Weidenmiller said his clients were to be granted a continuance because the new mitigation plan was submitted.
The sticking point for Olmsted and other city leaders on the newest plan was the inclusion of the condition that Key Marco wouldn’t begin planting in the cleared areas until their civil suit appealing the code board’s decision was settled in court.
The city, Conservancy of Southwest Florida, Florida Department of Environmental Protection, as well as the community association and Key Marco Community Development District, are among the agencies responsible for ensuring the native habitat parks remain largely unchanged from their natural state as a rare upland habitat.
The Conservancy filed a motion to intervene as an interested party with the city against Key Marco in Collier Circuit Court, while the city filed a motion to dismiss the case. Both were to be heard by Collier Circuit Judge Cynthia Pivacek on March 5.
However, the case was canceled.
Government relations manager Nicole Ryan of the Conservancy of Southwest Florida said Wednesday that until the city’s motion to dismiss the appeal is heard, becoming an interested party isn’t relevant. Instead, the Conservancy has stayed involved through their filing of an amicus brief, to become a “friend of the court,” and provide evidence to support the city’s claims, she said.
The hearings were canceled, Ryan said, because of a schedule conflict with the city’s attorney, and has not yet been rescheduled.
Meanwhile, mitigation remains the focus according to Community Development staff and Weidenmiller said they are getting close.
“If we were running a marathon, we’d be in the last mile or two,” he said.
Code Board Chairman Tarik Ayasun said he had other concerns.
“This may still come back here ... because there is a fine here,” he said.
“I think you’re belaboring the point,” Code Board member Lou Prigge said to Ayasun.
“I don’t have a problem with the continuance per se ... fines from June 15 until corrected are $250 per day and you’re going to have to deal with that sooner or later,” Granda said.
“I understand that,” Weidenmiller replied.
The continuance was approved 6-0.