Aug. 5, 2005 A Coastal Zone Management permit appeal by the former owners of Lindqvist Beach was denied Friday morning by the Board of Land Use Appeals. The board voted that the issue was moot, because of the V.I. government's legal action Thursday.
On Thursday the Lindqvist Beach property, formerly owned by Virgin Island Investments, LLC, became the property of the government of the Virgin Islands in an eminent domain action filed in Superior Court Thursday.
Solicitor General Elliot Mac Davis said Thursday, "Under the V.I. Code, by virtue of filing this action, the title is transferred to the government of the Virgin Islands to benefit the people of the Virgin Islands."
Attorney Jennifer Jones, Coastal Zone Management counsel representing the Department of Planning and Natural Resources, entered a Motion to Dismiss based on the court's Thursday ruling giving the property to the V.I. government, which she said renders the issue "moot." Jones said further actions will be before Superior Court. "The appellants don't have title to the property and cannot appeal a permit," she said. "The law is clear."
Attorney Alan Smith, representing Virgin Island Investments, countered the motion. One of the owners, Don Rifenberg, also attended the meeting.
Smith took issue with how he learned of the government's action. He said, "At the 11th hour Thursday afternoon, we were informed. But for the counsel [Michael Law] for the board, we would have been unaware of the government's action."
Smith cited several cases regarding the "mootness" issue, which he said backed up his argument that the current issue is not moot.
Claiming the government has "played us like a violin," Smith argued that the current permit appeal has gone on for way too long and is ceded to the appellant by default. He said the government "did not respond in a 60-day time period." He said the time for the government to respond to the permit appeal had expired; "therefore," he said, "the permit is ours by default, and we are entitled to a date retroactive to that time."
At issue with Smith is that if V. I. Investments had the approved permit, allowing them to improve and build on the property, the value of the land would soar.
Smith said, the government was "nimble in coming up with, in our opinion, specious delays, until it was able to come up with the funds [to purchase the property]."
He continued, "It's an umbrage that any property owner could be a victim of that conduct, and be deprived of the real value of his property."
Smith claimed the board had not acted "in a timely manner" on the permit issue. He implied that the government and the board had worked hand in hand. "At the 11th hour, the day before the board meets, the government comes up with the money. If not for 'reasons beyond the board's control,' we would now have our permit," Smith said. "The V.I., through DPNR, came up with all sorts of spurious excuses."
The government deposited $4,108,750 in the registry of the Superior Court Thursday. The amount is the value of the average of four different appraisals of the land. Smith said he had been down to Superior Court Friday morning to view the appraisals. Smith said, "If the appraisals were done before the permit in question, then the value may be higher than that amount.
Smith said he had been to Superior Court earlier in the morning, but was unable to get a copy of the appraisals. Board member Jose Penn took issue with Smith's remarks. He said, "The board did meet .. Don't imply that the board took a year."
Penn said, "The appraisal value [of the property] is not an issue before us. We need to dismiss this and let the court decide."
Penn moved that "both appeals be dismissed because the owner of the property is the government of the Virgin Islands."
The motion passed on a 3-2 vote. Voting in favor of the motion were board chairman Elton Chongasing, Reginald George and Penn. Voting against were Aloy Neilsen and Fred Vialet. Board members James Hindels and John Woods did not vote. Hindels earlier had recused himself from the proceedings because he is counsel for the Public Finance Authority, which financed the purchase of the property. He said it could represent a "conflict of interest." Woods was absent.
Smith said his next step would be to get a copy of the appraisals. The matter will be heard in the court of Superior Judge Brenda Hollar. No date has yet been set.
Eminent domain issues have recently been front and center in U.S. News. A Washington Post story dated June 24, says, "The Supreme Court ruled yesterday that local governments may force property owners to sell out and make way for private economic development when officials decide it would benefit the public, even if the property is not blighted and the new project's success is not guaranteed.
The 5-to-4 ruling provided the strong affirmation that state and local governments had sought for their increasing use of eminent domain for urban revitalization, especially in the Northeast, where many city centers have decayed and the suburban land supply is dwindling.
Opponents, including property-rights activists and advocates for elderly and low-income urban residents, argued that forcibly shifting land from one private owner to another, even with fair compensation, violates the Fifth Amendment to the Constitution, which prohibits the taking of property by government except for "public use."
In the Virgin Islands, the purpose of Thursday's eminent domain action seems to clearly fall under the "public use" requirement. The court papers state in part, the V.I. Code grants the government authority to exercise its power of eminent domain, for "…. all public uses authorized by … the Legislature of the V.I. … for the acquisition of parks, lands for public recreation and significant natural areas [as defined in the V.I. Code]."
"Significant natural areas" are defined as "land and/or water areas within the coastal zone of major environmental value, including fish or wildlife habitat areas, valuable biological or natural productivity areas; and unique or fragile coastal ecological units or ecosystems which require special treatment and protection."
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