The Summers End Group LLC moved one step closer in its attempt to secure permits to build a 144-slip marina and land-based development in Coral Bay, St. John.
On Thursday, Nov. 19, the Board of Land Use Appeals voted 4-0, with two abstentions, to deny an appeal brought by the Virgin Islands Conservation Society. Had the appeal been upheld, it would have required that the permit applications be sent back for review by the St. John Committee of Coastal Zone Management.
What happens next is unclear, but it’s likely that litigation involving the controversial project will continue, as several lawsuits are still pending in the territory’s Superior Court.
Attorney Boyd Sprehn, representing Summers End Group, LLC, the developer of the proposed marina, said the Conservation Society’s suit was an attempt to cause further delay to the project that has been under scrutiny since 2014.
Attorney Andrew Simpson, representing the Conservation Society, told the Source the situation was caused by Summers End Group’s “refusal to submit a permit application that complied with the law. SEG initiated the permitting process – and this mess – by submitting two separate permit applications – one for the water ‘side’ of the project and one for the ‘land’ side.”
Some background about the project’s permitting process is necessary to understand the present issue.
The St. John Committee of the Coastal Zone Management approved separate land and water use permits for the Summer’s End Marina (now also known as the St. John Marina) in 2014 after a contentious hearing.
Lawsuits and appeals followed.
In 2016, the Board of Land Use Appeals ruled that the permits should be consolidated since the land and water portions of the project would be interdependent and have cumulative impacts. However, their directive wasn’t implemented until January 2020.
Kenneth Mapp, who was governor when the Board of Land Use Appeals made its ruling, opposed the project, and the approval process stalled. However, when Gov. Albert Bryan Jr. took over in 2018, he took a renewed interest in the marina, and in 2019 he forwarded the permits to the Senate for ratification.
In an October 2019 Senate Committee of the Whole hearing, senators found multiple reasons for not acting on the governor’s recommendation.
These included disputes with several landowners who leased property to Summers End Group; a lawsuit with a competing marina project; and a change in ownership of two sizable pieces of property (13A and 13B Estate Carolina,) making them unavailable to the marina developers.
The change in ownership required major changes in the project’s design, which many say should have resulted in the permits being sent back to the St. John Committee of Coastal Zone Management for approval.
In a December 2019 letter to the governor, Senate President Novelle Francis Jr. said the permit was “defective,” because “it was signed and issued unilaterally by the Chairman of the St. John Committee without a vote of approval or other involvement of the St. John Committee.”
However, in January 2020, Gov. Bryan administratively consolidated the permits (according to his interpretation of the ruling by the Board of Land Use Appeals in 2016) and sent them back to the Senate for ratification.
At a Senate Committee of the Whole hearing in July, senators expressed confusion over discrepancies on the permit before them and asked Coastal Zone Management Director Marlon Hibbert for clarification.
Hibbert said, “We are not privy to the modifications you are considering now. We cannot provide an opinion on this. We approved the original permits. There’s no violation with them. We have not seen the modifications.”
Upon further questioning, Vonetta Norman, an attorney with DPNR, said, “The modification and consolidation were done under the governor’s independent power and not through the department.”
Senators questioned whether the governor’s action was appropriate. Bryan sent the permit to the Senate under a provision for emergency enforcement power, 12 VIC, Sec. 911g of the Coastal Zone Management Act.
That action was challenged because that law refers to permits that had already been issued. The permits for Summers End, consolidated or otherwise, have not been issued since the Senate has yet to approve them. Furthermore, it has not yet been established that an emergency existed allowing the governor to take such an action.
No further public action has been taken by the Senate.
Thursday’s Meeting of the Board of Land Use Appeals
The Coastal Zone Management Commission was not a party in the dispute at Thursday’s Board of Land Use Appeals. Neither was the Department of Planning and Natural Resources, which is the agency overseeing CZM.
CZM has no jurisdiction beyond issuing permits, and no jurisdiction over the governor’s actions, said Sprehn, the attorney for Summer’s End.
He said DPNR had agreed to clear up some discrepancies regarding dates in the consolidated permit application sent by the governor, and the consolidated permit application was now valid. Sprehn said the permit was ready for Senate approval, and any further delay was intended to create confusion and sow seeds of doubt among investors.
Simpson, the attorney for the Conservation Society, said the permits would still be invalid because of Summers Ends’ loss of ownership of two properties which were originally part of the plan. The change would require reassessment of the plans since those properties played an important role in terms of mitigating stormwater runoff and addressing other environmental effects of the development.
Simpson also said the consolidated plan issued by the governor included the addition of a boardwalk. This modification was made without any assessment of its environmental impact, or any determination of fees for the use of submerged lands (under the boardwalk) which are held in trust for the people by the government.
The Board of Land Use Appeal rejected Simpson’s contention that the permit application was invalid because it had been signed only by Andrew Penn, the chairman of the St. John Coastal Zone Management Committee, and not by the full committee.
Voting in favor of dismissing the V.I. Conservation Society’s appeal were James Hindels, Fred Vialet, Roberto Cintron, and James Benton.
Two members recused themselves. They were John Woods, who has designed a competing marina project proposed by the Moravian Church Conference, which has a pending lawsuit against the Summer End Group; and Jose Penn, who is the brother of Andrew Penn, chairman of the CZM board who signed the consolidated permit issued by the governor.
At the end of the vote, which proceeded briskly, DPNR attorney Vonetta Norman asked, “What does CZM do now?”
“It is not up to this board to direct,” responded Hindels.
Much litigation remains
“The V.I. Conservation Society has filed a writ of review in the Superior Court asking the court to reverse the BLUA decision (2016) and vacate the permits,” according to Simpson. “A critical deficiency of the order for consolidation is that it failed to recognize that any permit involving development on the water is subject to a more rigorous environmental standard. The land portion of the permit evaded that scrutiny because it was not considered as part of the water permit. Merely consolidating the two permits does not cure that deficiency. The two applications – not the two permits – need to be consolidated and then reviewed by the CZM Committee under the proper (heightened) level of scrutiny.”
Simpson said there are 29 issues included in the writ of review, ranging from an insufficient plan for sewage treatment to SEG’s right to even build on the property.
Meanwhile, the Moravian Church Conference’s case against Summer’s End is still pending; that suit alleges that the development infringes on the church’s property rights and adversely affects their ability develop their own marina across the harbor.
Save Coral Bay, a community group that rose up in opposition to the marina in 2014, also filed a lawsuit against the Summer’s End Group in July.
In response to the Board of Land Use Appeals ruling on Thursday, David Silverman, the president of Save Coral Bay, said, “Because the actions taken by the Summers End Group with the assistance of DPNR and Governor Bryan were illegal and unprecedented, it is not at all surprising that BLUA did not know how to handle the appeal. The consolidated CZM permit was created by DPNR, signed by a single CZM member and modified by the Governor in complete secrecy in late 2019. The legality of all of those actions will be a matter for the Virgin Islands courts to decide, and there is no question in my mind what their decision will ultimately be.”
Chaliese Summers, one of the principal owners of Summers End, said, “The real winners from the Nov. 19, 2020, Board of Land Use Appeals hearing are native St. Johnian families here and abroad who will benefit from the unanimous decision by voting BLUA commissioners to dismiss the appeal against the St. John Marina permit.”
“The St. John Marina, led through the vision and dedication of Mr. Robert ‘Bob’ O’Connor’s Summers End, will reignite the St. John economy empowering local families with generational prosperity.”