Dec. 27, 2001 – Territorial Court Judge Ive Swan said Thursday that he sees serious, fundamental flaws in a lawsuit brought by the Environmental Association of St. Thomas-St. John against the V.I. government and the developers of the proposed Botany Bay resort.
"I see some problems. I see quite a bit of problems," Swan told Gwendolyn Wilds, EAST attorney, during a hearing on the lawsuit Thursday morning. "I've never seen anything like this."
Henry Feuerzeig, the attorney for defendants Botany Bay Partners, went even further; he suggested the court consider sanctions against EAST for filing a lawsuit that he said has no basis in law.
"In my 30-some years in my practice of law, I've never seen this," Feuerzeig said. "This complaint asks for things that are simply way beyond the power of this court."
Swan did not make any ruling Thursday regarding the suit. He said he would recuse himself from the case because the government's motion to dismiss was signed by Kerry Drue, Civil Division chief in the Attorney General's Office. Drue is Swan's stepdaughter.
But after recusing himself to avoid a possible conflict of interest, Swan urged Wilds to consider amending the EAST suit. He said he believes the suit asks the court to take actions that would violate the separation of powers among the three branches of government.
Last week, EAST filed the suit against Botany Bay Partners, the Legislature, the Planning and Natural Resources Department and other government agencies. EAST asked the court to rescind the Legislature's Dec. 11 vote to rezone land at Botany Bay, to enjoin the Legislature from sending the act to Gov. Charles W. Turnbull to sign into law, and to restrain the Legislature from making what EAST called "arbitrary and capricious" changes to the territory's zoning maps in the future.
In the lawsuit, EAST claims the Legislature acted improperly by ignoring DPNR's recommendation to grant a zoning variance to Botany Bay Partners, rather than rezoning.
On Thursday, Swan said the Revised Organic Act and the V.I. Code clearly give the Legislature the power to enact zoning changes and to accept or reject recommendations from DPNR. The Organic Act also states that the Legislature must forward acts to the governor to be signed into law, an action that Swan said no court would ever interfere with.
"It is etched in marble, etched in bedrock, etched in granite, this principle of separation of powers," Swan said. "I can't imagine any judge would order a Legislature to repeal an act."
Wilds said she planned to amend the lawsuit, and attorneys for both sides agreed to a schedule for filing new court papers over the next month. Feuerzeig volunteered to write up the order for the judge to sign setting up the schedule for filing court motions.
It has not been decided which judge will be assigned to hear the case in Swan’s stead.
If the case is thrown out, the defendants could ask the judge to order the plaintiffs to pay their attorneys' fees.
