Feb. 16, 2004 – After seven hours of deliberation Saturday, no decision was reached in a hearing to determine whether a minor Coastal Zone Management permit was required for work done to a fence at Lindqvist Beach by the property owner, V.I. Investments.
The hearing was a continuation of a six-hour Jan. 14 session. Testifying for the government on Saturday were Planning and Natural Resources Commissioner Dean Plaskett and William Rohring, acting CZM director.
During Saturday's proceedings, CZM attorney Julita de Leon was replaced by V.I. Justice Department attorney Terrilyn Smock.
On Dec. 5, DPNR served a Notice of Violation on the company, citing it for putting up the fence without a permit in a Tier 1 coastal zone. Plaskett initially assessed a fine of $10,000 a day, later doubling the amount for "not only for violating the law but … also violating my order."
On Dec. 12, under an agreement reached with DPNR, V.I. Investments opened the fence gate. The agreement, both sides say, was that the owners would comply with an order to restore public access to the beach in return for the government halting the fines, which by then totaled $260,000. In the current hearing, V.I. Investments is challenging the validity of the Notice of Violation and, thus, of the fines.
Much of the first three hours of Saturday's meeting was a rehash of issues previously presented by Henry Feuerzeig, attorney for V.I. Investments' owners, Don Rifenberg and Edwin Padgett. (See "Lindqvist CZM hearing to be continued".)
Tempers occasionally flared as these issues were once again brought to the table. "We know the whole basis of this action is public access," Feuerzeig said. After the hearing, he said: "The issue of a permit is a subterfuge for what is clearly, and has been since the first, an issue of public access."
During the hearing, Feuerzeig noted an Aug. 7 letter from Claudette Lewis, DPNR assistant commissioner, which denied V.I. Investments a minor permit for building two houses on the property. "It was denied because it would deny public access to the beach," Feuerzeig said.
The hearing examiner, St. Croix attorney Marise James, brought the discussion time and again back to the central issue of the fence. "No, no, no," she cautioned both attorneys at one point. "We are here to determine if the gate and fence constitute 'repairs' or 'new construction,' and that is all."
After acquiring the property from The Cove at Smith Bay on March 6, Feuerzeig said, V.I. Investments grew increasingly concerned about repeated trespassers on its property and, among other things, the continued despoliation of the beach and wetland area.
Consequently, Rifenberg and Padgett had their counsel, Dudley Topper and Feuerzeig, write Plaskett advising DPNR that the developers intended to take measures to protect the property against unlawful use, by restoring the fence that existed around the property.
Having gotten no response from this letter, Feuerzeig noted that two subsequent letters were written to Plaskett, on Nov. 6 and Nov. 10, the latter enclosing a description of the project to be done. Feuerzeig had said at the previous meeting, and he repeated on Saturday, that none of the letters received a response, even after repeated telephone calls to Plaskett.
Feuerzeig presented copies of the letter stamped as received. It was hand-delivered to the CZM offices, he said, as well as faxed.
In response, Plaskett and Rohring denied receiving a letter from Feuerzeig's law firm which announced his client's intention to rebuild a fence and gate on the property. The same issue had been discussed at the previous meeting.
Plaskett testified that he has the final say on what CZM permits are approved and on interpreting what constitutes repair and maintenance, which don't require a permit, vs. erection and construction, which do.
Feuerzeig contended that CZM's action in this case constituted selective enforcement. He said previous administrations had reconsidered permits.
In the late afternoon, James continued the hearing and issued a request for memos regarding previous CZM permits issued for gate and fence construction.
According to Feuerzeig, the second hearing continuance is tentatively scheduled for March 9. At that time, more witnesses for V.I. Investments will be heard.
Although de Leon had said at the conclusion of the January meeting that she would file another Notice of Violation, stipulating another fine, she said on Saturday that she hadn't done so, pending the outcome of Saturday's session. Given Saturday's continuance, it is unclear whether any further CZM action will be taken.
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