Madeira, RR Restoration ordered to pay nearly $16K for destroying dunes in Marco Island
Madeira on Marco Island Condominium Association and contractor RR Restoration must pay $15,500 for damaging dunes and removing native vegetation, according to a Florida Department of Environmental Protection consent order filed Wednesday.
Within 30 days, Madeira must pay the department $8,000 as part of the settlement for violation of Section 161.053(2) of the Florida Statutes which regulates coastal construction.
The department also ordered RR Restoration to pay $7,500 for the same violation.
Erik Brechnitz, chairperson of the Marco Island City Council, wrote in an email sent to the Eagle that the fine was appropriate.
"The best way to handle these egregious and repeat offenders is through the Florida DEP and not our magistrate system," Brechnitz wrote. "They have the enforcement mechanism in place and the ability to make it stick."
"Hats off to the Florida DEP for their rapid and appropriate response."
City Councilor Larry Honig, however, wrote the fines were inadequate.
"This absurdly inadequate fine amounts to a laughable ten cents per square foot for an average Madeira condo unit," Honig wrote.
Honig went as far as to write that the department should be renamed "Failure to Deter Egregious Projects," a wordplay of its acronym.
The consent order was signed by Douglas Spong, president of the condo association, and James Fred Bonner, owner and CEO of RR Restoration of Georgia, and it includes corrective actions which both parties are responsible to carry out.
Within 180 days, the respondents must place nearly 1,500 cubic yards of beach compatible sand fill in the impacted area.
The sand fill will be obtained as part of the Collier County beach renourishment project already authorized by the department, according to the order.
The area will then have to be graded and sloped to meet beach elevation beyond the dune.
Upon completion, the defendants must arrange a departmental site inspection and, if passed, the respondents will have 30 days following the completion of roof repairs to plant native dune vegetation on the newly reconstructed dune.
Within a year from Wednesday, a minimum 80 percent overall survival rate of the dune plants must be established and 80 percent of the area must be covered with the selected species with no gaps.
In case you missed it:Collier leaders approve $2.35M contract for dredging, beach renourishment
The consent order does not grant authorization for installation and construction of the crane and any staging material seaward of the Coastal Construction Control Line, which limits the area where construction can take place without a permit from the department.
To install the crane, the respondents must complete a pending permit application, according to the order.
The respondents also agreed to pay $250 for each day they fail to timely comply with any of the requirements.
A violation of the terms of the order may subject respondents to judicial imposition of damages and civil penalties up to $10,000 per day per violation and criminal penalties as well.
If events beyond the control of the respondents causes a delay, the respondents must notify the department the anticipated length of the delay and include measures taken or to be taken to prevent or minimize it.
In such circumstances and in agreement between all parties, only then can the deadlines be extended without penalties.
The consent order does not relieve respondents from complying with applicable federal, state and local laws, regulations or ordinances, according to the document.
There was no willful misconduct from the part of the contractors, said Douglas Spong, president of the condo association.
"The Madeira board has made it clear to our staff that we have a zero tolerance policy for contractors who are performing work in and around our property without proper permits," Spong said to the Eagle in a phone call on Thursday.
"There is a requirement now that staff have physical evidence of all permits from contractors."
RR Restoration did not immediately respond to the Eagle's request for comment.
In July, the Marco Eagle reported DEP sent warning letters to Madeira and RR Restoration after a department inspection observed removal of native dune vegetation, use of heavy equipment and damage to an existing dune.
RR Restoration did this in order to stage a large crane to do roof construction in Madeira, according to Dennis Kariores, operation manager of the company.
For these violations, the Marco Code Enforcement Magistrate issued $1,050 in fines in August against Madeira and two contractors; one of them being RR Restoration.
During the code enforcement hearing in August, Kariores said the code violations were his fault.
"What happened on the beach was totally my fault," Kariores said at the time. "I take full responsibility."
In July, however, Kariores said to the Eagle he had "no idea" about the reported code violations.
"We didn't tell anybody or authorize anybody to remove that vegetation," Kariores said at the time. "That's not our equipment there."
In September, attorney Joseph Natiello, representing the city, said during a code enforcement hearing the city wanted to keep the Madeira and RR Restoration on a "short leash" after they did not deliver a dune restoration plan as agreed.
Myrnabelle Roche, Marco's Code Enforcement magistrate, delayed issuing additional fines against the respondents for the destruction of dunes on three separate occasions to give them ample time to submit a final dune restoration plan which they did in October.
In October, the city informed it was issuing Madeira another notice for violating dune protection ordinances after a code enforcement officer observed a different contractor cutting foliage without a permit in the dune area of 350 S. Collier Blvd.
On Dec 4, DEP issued two warning letters for excessive cutting of native dune vegetation, simultaneously notifying Greenscapes of Southwest Florida and Madeira that violations of chapter 403 of Florida Statutes and other violations were observed, according to Alexandra Kuchta, an operations analyst at the department.
"Madeira was assessed additional civil penalties under OGC Case No. 19-14445," Kuchta wrote in an email sent to the Eagle. "Our beach and dune system serves as our state's first line of defense, and DEP is committed to their protection."
Sand dunes serve an important role by protecting inland areas from coastal water intrusion during high tides and flooding events, according to Colleen M. Gill from Collier County Waterkeeper.
The Waterkeeper Alliance is an internationally recognized, grassroots style organization that promotes swimmable, drinkable and fishable waterways.
"Dunes are able to absorb the impact and protect inland areas from high energy storms and act as a barrier to the destructive forces of wind and waves," Gill wrote in an email sent to the Eagle.
"Dunes also are nature’s sand replenishment system, as offshore winds will blow sand from the dunes onto the beach, replenishing it; while blow sand into the dunes and the vegetation catches the sand helping build up the dunes naturally."
These areas also provide vital habitat and nesting sites for coastal birds such as black skimmers and royal terns, according to Gill.
"Also, these zones is the nesting area for sea turtles and in some area, endangered beach mice," Gill wrote.
"Sadly, the biggest threat to these habitats is human development and trampling of the dunes. Every dune that is removed, is only presenting future risk of flooding and erosion."
After Madeira's second alleged dune violation and two other violations of Marco's sea turtle lighting ordinance, several city councilors said during a meeting in late October they wanted bigger fines against Madeira and others who repeatedly break city environmental codes.
City Councilor Jared Grifoni, now vice-chair, said at the time Madeira appeared not to care about the law.
“There’s a difference between someone making an unintentional mistake and what I think amounts to […] reckless disregard for the laws which is what we appear to have here,” Grifoni said.
“Maybe we can […] increase the fines for intentional reckless conduct that are much heftier than where we are at right now while still providing just a sliver of leeway for someone who makes a mistake.”
City Councilor Charlette Roman said at the time City Council should take into consideration the leeway it gives to the code enforcement magistrate to impose fines.
“Just because the ordinance provides the latitude to give a larger fine does not mean when the evidence is heard in the particular hearing (that the higher fine) is going to be administered for that violation,” Roman said.
“I think we have an opportunity […] to give our city manager and our staff the tools that if there are egregious repeat violators, we can do (what is necessary) to protect our world class beach and our world class environment.”
Honig said at the time he wanted to know if the city can deny permit requests to Madeira and other repeat offenders.
"I realize that’s nasty (and) I don’t like nasty government," Honig said. "I don’t want that but I don’t know what else we can do."
Honig said he was upset about Madeira's violations.
“It’s an insult,” Honig said. “It’s actually a stab in the face."
In November, the city chose not to have a code enforcement hearing because of recent staff changes, delaying the resolution of high-profile cases like Madeira.
"We chose not to based on changes in staffing in November," Captain Dave Baer of the Marco Island Police Department (MIPD) wrote in an email sent to the Eagle on Dec. 5. "The Code (Enforcement) Unit's Administrative Assistant resigned."
Heather Comparini, MIPD's records clerk and code employee, submitted her letter of resignation in late October, the Eagle reported.
The next code enforcement hearing will be in January but a specific date has not been announced as of Dec. 18.
"Our beach is one of our most important shared assets on Marco Island and it must be protected," Grifoni wrote in an email sent to the Eagle. "Our citizens and our environment deserve to have it restored and improved as quickly as possible."