Dec. 20, 2001 – Territorial Court Judge Ive Swan on Thursday denied a request from the Environmental Association of St. Thomas-St. John for a temporary restraining order to halt the proposed development at Botany Bay.
But Swan scheduled a hearing for Dec. 27 on EAST's requests for preliminary and permanent injunctions against the developers, Botany Bay Associates; an injunction to prohibit the Planning and Natural Resources Department from changing zoning maps; and an order to stop the Legislature from passing acts of "arbitrary and capricious spot zoning."
Earlier this week, EAST and several West End landowners filed suit against Botany Bay Partners and the V.I. government. The lawsuit asks the court to overturn the Legislature's Dec. 11 vote to rezone the Botany Bay property — the first step in allowing the proposed $160 million resort development to move forward.
On Thursday, Botany Bay Partners attorney George Dudley said he would file papers as early as Friday asking Swan to dismiss the lawsuit. Dudley said that the law clearly gives the Legislature the authority to make zoning changes, and that the lawsuit is asking the court system to interfere with what is supposed to be a decision made by elected officials in the Senate and later signed by the governor.
Botany Bay Partners is proposing to build a five-star resort hotel, time-share and condominium units, and about 40 residential homes at Botany Bay on the far western tip of St. Thomas. The plans have drawn a storm of criticism from environmentalists noting the pristine nature of the area, the healthy coral reef systems of the bay and the use of the area's beaches by endangered sea turtles; and from preservationists concerned for what will happen to archeological sites and a historic sugar plantation on the property.
The developers have said they would build the resort in an environmentally sensitive manner and preserve the historic and cultural resources as an educational center.
Planning and Natural Resources officials recommended to the Senate that, instead of the requested rezoning, the developers be granted a zoning variance which would allow them to move forward with their project but bind them to the specific plans they have proposed. Many rezoning opponents — including members of EAST and the League of Women Voters — said they supported the variance recommendation as a reasonable compromise.
The Senate, however, ignored the recommendation, instead voting for Sen. Celestino White's bill to grant the rezoning. Opponents of the development have said that once the land is rezoned, the developers will not be bound to stick with their proposed plans and could, in fact, sell the land to some other developers.
In its lawsuit, EAST states that the Senate acted arbitrarily by not taking DPNR's recommendation and instead changing the zoning from the previous low-density residential use.
But Dudley said making that decision is the prerogative of the Senate.
"The Legislature acted constitutionally when it rezoned the property," he said, noting that the law is clear that the Senate can accept or reject recommendations from DPNR on zoning matters.
Swan did not offer reasons Thursday for his denial of the request for a temporary restraining order. Dudley noted Thursday that, as no construction has started at Botany Bay, there can be no irreparable harm done at the site before Swan holds the Dec. 27 hearing. It is scheduled for 9:30 a.m.
