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On Little Hunting Creek, What Goes Up Must Come Down

Landowner says he’ll pay $25,000 to remove $30,000 bulkhead.

Usually, the seven-member Fairfax County Wetlands Board meets a few times a year to issue permits for construction projects on the Potomac River and its tributaries. But after responding to reports in April of wetlands ordinance violations along Little Hunting Creek, board members have found themselves consulting with county attorneys and flexing legal muscle that may have been dormant but is far from atrophied.

The board, if pushed, can take violators to court, according to chairman Glenda Booth, and a judge can order fines of up to $25,000 for each day they remain in violation of the county’s codes that protect what remains of its ravaged wetlands. “Wetlands are very effective at cleaning water, storing water, slowing it down,” Booth said. “They act like a sponge in the environment. In this county we’ve destroyed over half our wetlands.”

At a Wetlands Board Hearing at the South County Government Center on Tuesday night, the four board members present approved one applicant’s request for an extension, approved another’s restoration plan and agreed to write a letter to a third violator who failed to show at a meeting and instructed his agent to present what the board deemed an incomplete plan.

Brad and Linda Brown successfully petitioned for an extension to their restoration plan for the yard of their property on Woodland Lane, which sits next to Little Hunting Creek. Linda Brown said that for 22 years she’s had an elaborate ornamental garden in her backyard. In the 1990s it was the subject of a photo spread in the “Mount Vernon Gazette.” But she said that recently a neighbor complained to the Wetlands Board that the yard violated wetlands ordinances. She and her husband are now spending thousands of dollars to scrape off the garden she estimates may have cost them $100,000 over the years.

THE BULK OF THE MEETING was devoted to the Carleton Robinson’s restoration plan for his property on Woodland Lane. Robinson said he did not consider the ecological importance of the wetlands on his property, or the enforcement power of the Wetlands Board, when he began constructing a 45-foot wooden bulkhead along the shoreline of his land abutting Little Hunting Creek. “I undertook an ill-advised project based on some bad information I received,” Robinson said.

“I was told the county basically left you alone. There wasn’t much in regards to enforcement. And all those things were wrong.”

Robinson said, and county officials agreed, that when county staff acted on a tip and appeared at his house in April to tell him he was building without a permit and violating the county code, Robinson immediately ceased construction. “The county came and told me to stop and I stopped. I’ve been working with them ever since to try to rectify the situation.”

At the meeting, Robinson’s agent Joseph Fiorello, a professional wetlands delineator with ECS Mid-Atlantic, LLC, presented a restoration plan that would strip the boards from the bulkhead but leave some of the pilings in place. This would allow the tide to flow up and down over the mud flat, restoring the function of the wetlands as a filter for pollutants, a sponge for run-off and animal habitat. It would also allow Robinson to build a boardwalk and dock above the wetlands area. The board spent almost two hours examining the details of the plan, including the size of the boardwalk, the type of biodegradable material that would be used to reinforce the bank, the size of the stones that would be piled as “rip-rap,” the grade of the over-all slope, the species of plants and when and how they would be planted in an area that had been bare mud.

After close scrutiny, the board approved the plan, but left unresolved whether to allow the builders to leave the bulkhead in place for one year to protect the creek from silt during reconstruction, then remove it in January 2008 when the ground is frozen. The board recommended that the size of the boardwalk be reduced, but Booth said it had no jurisdiction over the structure.

In an interview, Robinson said he should have investigated the advice of a person he would only call an acquaintance, who told him that a bulkhead would be the best and cheapest solution to the poorly vegetated, extremely steep slope of his backyard, which was crumbling into the creek. Robinson said he invested about $30,000 in the incomplete bulkhead, and estimated it will cost him another $25,000 to satisfy the Wetlands Board.

He added that he doesn’t think enforcement has been consistent and that the creek has many yards with bulkheads similar to those he was trying to build. “It’s confusing because it’s kind of a patchwork of solutions back there.” Robinson said he believes some neighbors who took advantage of older laws are now trying to prevent others from having what they have. “I think that causes a lot of strife in the neighborhood.” But he closed the conversation by taking responsibility for his own actions. “I didn’t follow the procedure. I was in the wrong and I am addressing this.”

ACCORDING TO BOOTH and the board’s staff liaison, Mary Ann Welton, Robinson’s bulkhead was an extension of a project begun by his immediate neighbor, Jason Matteo. In the meeting, Welton said that unlike Robinson, Matteo did not stop construction when informed in April that he was in violation. He continued to fill in dirt atop the wetland behind his bulkhead and “fragrantly violate” the instructions from the board. Matteo did not appear at the board meeting and is the only party who is currently in violation.

Like Robinson, Matteo was represented by Fiorello. Unlike Robinson, Fiorello said, Matteo chose to design his own restoration plan, “rather than allow us to do what needs to be done.” Fiorello then described Matteo’s restoration proposal: he would leave the bulkhead in place and not restore wetlands or floodplains. He would sow plants in the piece of his property that lies in the Chesapeake Bay Restoration Area.

Fiorello said he and his associates warned Matteo of the consequences of continuing to violate the board’s expectations. “We have let him know this is just the tip of the iceberg.”

“Don’t shoot the messenger,” he added.

Welton said Matteo’s restoration plan lacked the diagrams and data necessary to even be taken under consideration. County attorney Pamela Pelto said she had explained the true power of the board’s reach to Matteo in a previous meeting. “It’s not just fines. We can get a court order and force him to do it.” She said a judge could begin fining him $25,000 a day, plus the cost of court-ordered reconstruction.

“Maybe the board needs to send another letter,” Welton suggested.

Fiorello requested an extension until Jan. 15, but the board rejected this because it did not want to remove him from violation. Board members agreed to send Matteo a letter by the end of the week informing him that he is in violation, reminding him of the history of citations against him, specifying what is required in an acceptable restoration plan, detailing the legal ramifications of not presenting an acceptable plan and confirming that his agent requested an extension on his behalf.

The almost-three-hour meeting abruptly broke up at 10:10 p.m. after a South County Government Center guard warned the board that the center had closed five minutes before. “Nobody would set themselves up for this heartache,” said Linda Brown as the room emptied.