Gov. Albert Bryan approved a modified Coastal Zone Management permit for the Summers End this week, after the Senate rejected a version of the permit in December, Opponents of the project argue it should have been submitted for approval but proponents say the Board of Land Use Appeals decision says only that the permits be consolidated without mentioning sending them for reconsideration.
In early December 2019, Senate President Novelle Francis Jr. returned a permit to the governor of the U.S. Virgin Islands for the St. John Marina at Summer’s End, stating the permit was irreparably flawed at that point, many people thought the controversy regarding the proposed mega-yacht marina in Coral Bay was over.
Apparently, it is not.
In the following weeks, Gov. Albert Bryan Jr. worked with the Department of Planning and Natural Resources and developers of Summer’s End to smooth out any permitting issues and prepare a modified, consolidated permit that could be passed by the Legislature at a moment’s notice.
At least one member of the St. John Committee of Coastal Zone Management, which is charged with approving marine and nearby land development, says the approval of new modified permits illegally bypasses laws set in place to protect coastal areas.
In a detailed opinion piece, David Silverman, a member of the St. John Coastal Zone Management Committee, spelled out the many inconsistencies and illegalities involved in the resulting modified permit approved by the governor on Dec. 18, 2019.
History of the current controversy
Summer’s End has generated opposition since the proposal (including a marina, shopping complex and upscale rentals) was first presented to the public at a Coastal Zone Management hearing in August 2014.
At that time, the developers submitted separate applications for a water-use permit and a land-use permit.
A series of court challenges resulted in a ruling by the Board of Land Use Appeals in 2016 which required consolidation of the two permit applications, since the two projects were interdependent.
Although the water-use permit application was reviewed and approved by Coastal Zone Management at the same time as the land-use permit application, they were never reviewed for “cumulative impacts” as required by St. John Coastal Zone Management law. Only the water-use permit requires approval from the governor and ratification by the Legislature.
On Dec.10, 2019, after “an exhaustive review,” Sen. Francis reconfirmed the Board of Land Use Appeal’s mandate to consolidate the two permits. He returned the permit to the governor, stating, “In short, the project as currently proposed by Summer’s End Group, LLC cannot be developed. … It is the consensus of the Legislature that the marina project proposed by Summer’s End Group, LLC has not been submitted for CZM review, thereby rendering the permit and all related processes invalid.”
The Department of Planning and Natural Resources subsequently combined the two permits through an administrative procedure, which, according to an appeal filed by the Virgin Islands Conservation Society, does not have any legal basis.
According to DPNR spokesman Jamal Nielsen, in 2016, when the Board of Land Use Appeals issued its determination on the issuance of the permits for Summer’s End, it mandated that the permits be consolidated, and what the department did was comply with what we were ordered to do. There was no new action taken by the Department, nor the Committee – it simply executed what the appellate board ordered.”
On Dec. 18, Bryan approved the consolidated permit which included seven modifications to the original permits, essentially ruling that the changes did not warrant any further scrutiny by the St. John Coastal Zone Management Committee or an additional public hearing.
In a letter sent to Summer’s End Group, LLC, Bryan wrote, “I find that with the above listed modifications to the Consolidated Major Coastal Zone Management Permit Nos. CZJ-04-14 (W) & CZJ-03-14 (L) for The Summer’s End Group LLC both protects the environment, but also allows critical economic development.”
St. John Coastal Zone Management Committee member Silverman strongly disagreed with the governor’s action. He has argued that the modifications, along with the consolidation of the permits, require that the developers reapply to Coastal Zone Management for a new permit.
“There is only one legal approach to consolidating and modifying major CZM permits,” Silverman wrote. “The applicant is required under the Virgin Islands Coastal Zone Management Act to submit a consolidated land and water permit application, to have this application signed by all owners of property on which the project is developed and to submit a consolidated land and water Environmental Assessment Report.”
“Once these documents are reviewed by DPNR and determined to be complete they are distributed for public comment, a public hearing is scheduled and only then can the appropriate island CZM Committee approve the permit.”
“This is the law,” Silverman said. “There is no ambiguity in the language of the code.”
Chaliese Summers, one of the principals of Summer’s End Group, LLC, has countered that no further review is required. She presented the Source with a timeline which included 19 listings of legal actions related to Summer’s End, including lawsuits filed against the developers.
“The Board of Land Use Appeals issued an order to consolidate the land and water permits [L & W] as noted above,” Summers said. She said the “decision and order is final and under no circumstances requires the permits to repeat the CZM process … In December 2019, for administrative purposes, the approved and consolidated [land and water] permits have simply been merged into one document and provided to the 33rd Legislature by Governor Bryan.”
The validity of the project
What happens next is unclear. At a Senate Committee of the Whole hearing in October 2019, many senators said they supported the concept of a marina in Coral Bay to spur economic development. The Senate may choose to act quickly to pass the modified and consolidated permit or they may choose to return it to the governor as they did previously.
The outcome of their action could affect the viability of the project. When the marina at Summer’s End was approved by the STJ–CZM Committee in 2014, it passed by the slimmest possible majority.
At that time, only three people out of five served on the committee, and one of those three had to recuse himself from the voting. The current St. John Coastal Zone Management Committee now has five members and it’s likely that the project would face more rigorous scrutiny.
The land-based portion of the project has changed considerably since it was first made public. Two of the parcels on which it was to be built have been withdrawn by the owner. This has led to design changes that affect parking, sewage treatment facilities and placement of buildings to house restaurants and shops. The drawing at the top of this story was provided to the Source in late February.
“I am in support of a marina in the Coral Bay area, we need employment,” said Sen. Steven Payne Sr., the only senator residing on St. John. Payne said local residents often approach him to ask for jobs since the closing of Caneel Bay in wake of Hurricane Irma in 2017.
“I have known people who want to open a boat engine repair shop, a kayak business, a laundromat after the marina is open,” he said.
Summers said she estimates marina development will provide 80 direct and indirect long-term jobs.
Although most senators spoke in favor of the concept, they questioned whether the size of the marina is appropriate. The proposed marina, now downsized from 145 to 144 wet slips, will cover approximately 27.5 of the 97 acres in the Coral Bay harbor.
At the October 2019 Senate hearing, Samuel Rhymer, the property manager for the Moravian Church Conference V.I., said the Summer’s End Marina would “deprive the Moravian Church rights to full and equitable use of their land.”
Rhymer said the current SEG plan does not allow for a navigable channel to exist between the two projects, and the church has filed a lawsuit.
“If you approve this before the court’s adjudication, you’ll wipe out our access,” he told senators.
Even if the Senate does approve the consolidated permit, the proposal still has to be approved by the U.S. Army Corps of Engineers, and court challenges could continue.
Other questions remain, particularly about infrastructure. Furthermore, the U.S. Environmental Protection Agency, National Marine Fisheries Service, National Park Service, U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration’s Protected Resources Division have all expressed reservations concerning potential damage to marine life if the marina is built.
Editor’s note: This story initially incorrectly stated that BLUA ruled the Summers End Group permits must be resubmitted. The Board of Land Use Appeals ruled that the CZM permits be consolidated. Whether this requires the permits be resubmitted is in dispute. The governor has acted on the assumption they do not, although CZM brought one, unconsolidated permit to the Legislature, which the Legislature rejected in December. It has been updated to eliminate an incorrect statement about sewage treatment.