April 10, 2003 – In the hope of reversing a V.I. government decision to allow development of an upscale resort on the pristine western end of St. Thomas, a local environmental group has enlisted the assistance of a national public-interest legal services organization.
Carla Joseph, president of the Environmental Association of St. Thomas-St. John, said the group entered into a formal agreement in January with the organization Earthjustice "primarily to focus on Botany Bay."
"We thought we would be irresponsible if we didn't take it to another level," she said, given the amount of opposition expressed at last September's Coastal Zone Management Committee meeting, when Botany Bay Partners' application for development of a luxury resort and condominium complex was approved. (See "Botany Bay development gets CZM go-ahead".)
Joining the legal effort on the local level is St. Thomas attorney Karin A. Bentz.
Earthjustice is a California-based not-for-profit law firm founded in 1971 as the Sierra Club Legal Defense Fund. Joseph said EAST sought the group out as part of its strategy to appeal the CZM Committee decision allowing initial development of the Botany Bay project to proceed on 69 acres of the former Warren Corning Estate.
"The main thing we bring to the table to help EAST is free legal services," Earthjustice lawyer Aliki Moncrief said this week. "EAST is a non-profit organization, but they have limited resources. They are pursuing an important objective, which is to protect Botany Bay."
In a statement released at the time the two groups signed their agreement, Moncrief called the St. Thomas CZM Committee's permit approval "irresponsible and arbitrary."
The committee chair, Austin Monsanto, said at the time of the vote in September that the committee had no choice but to approve the permit, since the project was proposed for privately owned land. "The property does not belong to the government. We cannot tell them no," Monsanto said after the Sept. 19 vote. However, he added that the board does have oversight over aspects of the development and an obligation to see that it is done properly.
EAST is questioning the ability of the government to monitor and regulate sedimentation and erosion at the site. It also contends that the developer failed to survey nearby beaches adequately to determine the potential impact of the development on endangered wildlife.
EAST has filed an appeal with the Board of Land Use Appeals, the designated review body for CZM challenges. No date for a hearing on the appeal has been set. Efforts to determine why produced conflicting information.
According to a member of the appeals board, efforts are under way to schedule a meeting in May. "Somebody is making calls to try to find a date when everyone will show up," the board member said.
Paul Gimenez, chief legal counsel to Gov. Charles W. Turnbull, however, said the appeals board lacks sufficient members at present to exercise its decision-making powers. "I'm told there is not a quorum right now," he said.
That statement also conflicts with the fact that six members were present and voting at the board's last public meeting, on Jan. 10, when it dismissed an appeal by the League of Women Voters of CZM approval for development of a Crown Bay shopping center under an old permit for dock expansion. (See "Board: Crown Bay permit covers shopping center".) Voting at that meeting were Elton Chongasing, Reginald George, James Hindels, Aloy Wentworth Nielsen, Jose Penn and John Woods.
By law, the board consists of nine members, so five would constitute a quorum. And on Feb. 28, the Senate Rules Committee confirmed the one nominee that has been sent to the Legislature by the governor — Fred Vialet Jr.
The board member who mentioned a May meeting said a quorum can be attained as long as all of the current members show up. "We have two positions to be filled," this individual said, while a current member wants to leave the board.
These numbers also do not add up — two vacancies would leave seven members, again with five required for a quorum.
By law, the nine board members comprise four from St. Thomas, four from St. Croix and one from St. John. All serve for two-year terms but, as is the case with many V.I. government boards and commissions, any member whose term has expired may continue to serve until a successor is seated.
Gimenez nonetheless said it is hard to keep enough members on the board due to the need to have people with a working knowledge of real estate and other matters related to land use. Many knowledgeable people are reluctant to serve because of the hours involved and meager per diem compensation, he said.
He also said the governor has a number of names before him as candidates for the board but that there is no timetable for appointing new members.
Although EAST has no date in sight for consideration of its appeal of the Botany Bay permit approval, Earthjustice lawyers are moving ahead with their preparations. Moncrief said they have contacted Botany Bay Developers to set up a briefing schedule. Local lawyers working on the legal team will keep an eye on the board of appeals, she said.
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