Jan. 14, 2004 – In more than six hours of testimony and debate on Wednesday, the owners of Lindqvist Beach got one concession from Coastal Zone Management officials: They can close the recently installed gate to their property.
Although that decision was satisfying for V.I. Investment, the owner of the 21-acre beachfront property, and its attorney, Henry Feuerzeig, it was not the reason for Wednesday's hearing. At issue were two questions: whether a CZM permit is required for the erection of a gate and fence, and whether the gate and fence put up by V.I. Investment fall under "repair and maintenance," which requires no permit.
There were no easy answers.
Feuerzeig said that after acquiring the property from The Cove at Smith Bay on March 6, V.I. Investments grew increasingly concerned about repeated trespassers on its property, an incident of rape, a near drowning, the roaming of stray animals and cattle on to the property and the continued despoliation of the beach and wetland area.
Consequently, he said, the new owners decided to repair the existing fence and gate on the property. The owners — Don Rifenberg and Edwin Padgett — through their counsel, Dudley Topper and Feuerzeig, wrote to Planning and Natural Resources Commissioner Dean Plaskett on Oct. 23 advising him that they intended to take measures to protect the property against unlawful use. They cited a section of the V.I. Code stating that "a CZM permit is not required for the repair/replacement of gates across the existing roads that lead from the public road to the beach, and to restore the fence that existed around the property."
Getting no response, the company sent two subsequent letters to Plaskett, on Nov. 6 and Nov. 10, including in the latter a description of the work to be done. Feuerzeig said on Wednesday that no response was received to any of the letters, even after repeated telephone calls to Plaskett. So, Feuerzeig said, the owners proceeded to have the fence and gate work done on Nov. 19 and 20, as they had advised.
On Nov. 20, Feuerzeig said, a letter from Plaskett dated Nov. 18 was faxed to him, in which Plaskett said there should be a meeting with CZM staff before any development activities took place on the property. "At this time, DPNR is opposed to your client's request," Feuerzeig quoted the letter as saying. However, he said on Wednesday, "no request had been made, because none was required by law."
On Dec. 5, DPNR served a Notice of Violation on the company. DPNR officials said the principals had violated the law by putting up the fence without a permit in a Tier 1 coastal zone. For that, Plaskett assessed a fine of $10,000 a day. He later doubled the fine, for "at least as long as the fence is blocking the road — not only for violating the law but they're also violating my order." (See "No date set for hearing on Lindqvist fence, fines".)
On Dec. 10, V.I. Investments petitioned Plaskett to rescind the notice of violation and grant the owners an immediate hearing. Plaskett rejected both demands but said CZM rules allow for a hearing within 30 days of a notice of violation.
Under an agreement reached with DPNR officials, V.I. Investments opened the gate on Dec. 12. 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 at that point were accumulating at the rate of $20,000 a day and totaled $260,000.
Cease and desist interpretation disputed
Feuerzeig maintained on Wednesday that DPNR's notice amounted to a cease and desist order, and that his clients therefore were entitled to a hearing within seven days. Julita de Leon, CZM attorney, argued that was not so. Feuerzeig said since DPNR violated the law in not allowing a hearing within that time frame, the order should be deemed null and void. De Leon claimed it was not a cease and desist order and could not be voided.
This was at the beginning of the long day wherein neither side gave an inch. De Leon insisted that a CZM permit was required to construct the fence; however, she did not come up with any evidence to convince the hearing examiner, attorney Marise James.
On several occasions, James reminded de Leon that public access was not the issue on the table. John Foster, real estate agent and previous owner of the property, testifying for V.I. Investments, answered questions regarding public access to the property. Foster testified that he had previously constructed a fence and gate on the property and had never been told he needed a CZM permit. Foster said, referring to a plan of the property, that "the fence was repaired and a 112-foot chain link fence was installed with no permit."
Feuerzeig presented several documents and photographs illustrating that the Lindqvist property had been fenced, one way or another, since 1940. "In fact," he said, "Ken Lindqvist used to patrol the property with a gun in a holster to make sure" there were no trespassers. Further, Feuerzeig said, "there are fences and gates all over this island for which there are no CZM permits." De Leon said it's like seat belt violations — "You can't police everything."
Feuerzeig asked whether de Leon could cite any CZM permits issued to allow a fence and gate. De Leon called on Algem Peterson, CZM environmental specialist, to testify. She said there is a policy in place for CZM permits requiring gates and fences.
Under grilling by Feuerzeig, Peterson said two or three such permits are issued every quarter. However, she was unable to produce one that satisfied Feuerzeig or James. Feuerzeig questioned Peterson at length about her assessment of the property, displaying photos showing a previous cement fence piling and a ruined metal gate on the land.
Another gate request okayed within two weeks
De Leon produced one exhibit which got the attention of Feuerzeig. It was a letter written to CZM by a tire company dated Oct. 29, asking to extend an existing gate. The request was approved on Nov. 12, barely two weeks later. Feuerzeig asked how that could be when his client's letters had been ignored.
He quizzed Peterson about DPNR procedures on receiving mail. Peterson said she had not received any of the letters of Oct. 23, Nov. 6 and Nov. 10, although she probably should have. "Sometimes things are dropped off on my desk, but I didn't see the letters." Nor could she explain why no one had responded to the letters. When Feuerzeig asked if a permit had been issued, Peterson replied: "We don't issue permits for repair and maintenance."
Although both de Leon and Peterson testified to Peterson's familiarity with the Lindqvist property, Peterson would not say whether the cement pilings and metal gate shown in photographs were proof of a pre-existing fence.
De Leon told James she wanted to amend the December Notice of Violation and put it back in place. James told her: "You can't do that when you have set the current one in motion."
"That's okay," de Leon replied. "I'll ask to issue a new one."
Finally, de Leon asked for a continuance of the proceedings so she could obtain the testimony of a DPNR employee familiar with the case who was off island on Wednesday. James commented that if de Leon knew she would need an unavailable person, the hearing shouldn't have taken place on Wednesday at all.
James also commented that "we said the issue wasn't public access, but that's what it's coming down to" when Feuerzeig asked about permission to close the gate.
"We don't have to prove they need a permit — it's the law," de Leon claimed. But James said that DPNR "has not shown a basis for issuing the NOVA. There is no basis in law for your finding."
James allowed the ow
ners to close the property gate after stating: "If respondent isn't required to obtain a permit because they did repair and maintenance work, how would DPNR have the right to impose the condition of keeping the gate open?"
Padgett and Rifenberg, who were present all day but did not testify, appeared incredulous throughout the proceedings, rolling their eyes repeatedly. Rifenberg said he has been a developer for 35 years, "and I've never seen anything like this." He said he has negotiated throughout the United States and in Jamaica. "In Jamaica, they said, 'How can we help you?'" he said.
James continued the hearing but did not announce a new date.
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