Aggregate Inc., Ann Abramson’s gravel company north of Frederiksted, disputed in a statement Wednesday the Department of Planning and Natural Resources’ determination its quarry violates zoning laws and said it wants an opportunity to make its case before its business license is affected.
Aggregate was responding to reports DPNR Commissioner Alicia Barnes told a Senate committee last week that DPNR was preparing a notice of violation that could lead to the revocation of Aggregate’s business license, according to Aggregate consultant Ken Mapp.
At that hearing, Sen. Judi Buckley said that some St. Croix residents had sent a letter asking DPNR and the Department of Licensing and Consumer Affairs to revoke the business’s license and asked what was happening with the quarry. Barnes testified that DPNR officials met with Aggregate principals about zoning violations.
The property is zoned R-1, residential – a category that does not include rock quarries. In V.I. law, a business, like a quarry, that existed before zoning laws were enacted in 1972, is grandfathered in and can continue to operate.
However, V.I. law limits that grandfathering to businesses that continue to operate and continue the "nonconforming use," and explicitly rejects grandfathering if the nonconforming activity ceases for one year.
It says, in relevant part: "Any nonconforming use of land or building which has ceased by discontinuance or abandonment for a period of one year shall thereafter conform to the provisions of this subchapter."
Barnes testified March 12 that she and other DPNR officials met with Aggregate principals, told them the property was in violation and directed the company to apply for a variation. "We met with the principals of Aggregate Inc. about the zoning violations. We had a verbal agreement that Aggregate would take certain actions and they have not," she said.
"The department is in the process of preparing a notice of violation to Aggregate for their failure to apply for a use variance or rezoning at that site," Barnes said, adding that Aggregate has a certain number of days to respond and has been notified "that failure to respond would result in the revocation of their license."
Aggregate’s statement, authored by Mapp, says the company "never received any notice from any official of the Government of the Virgin Islands. Nor has the DNPR advised the company that the quarry at Hamms Bay is in violation of the zoning statutes." It also asserts "the company has never been offered any opportunity to be heard on this matter. There has never been a hearing or an opportunity to properly prepare for, discuss and address this zoning issue before the DPNR."
Mapp wrote, "The company and its employees are entitled to due process, that means at the very least notice and an opportunity for us to be heard before any governmental entity takes adverse action against us."
Mapp seems to contradict the claim of no notice, saying the company met with Barnes "and she notified us for the first time that she believed that the quarry at Hamms Bay was not in compliance with the zoning laws of the territory. The commissioner further stated that the government has been in error in licensing and regulating the quarry for the past 16 years."
That DPNR gave them operating permits for a number of years and did not raise the zoning issue demonstrates that DPNR found them in compliance in years past too, according to Mapp.
Reached by phone Wednesday, DPNR spokesman Jamal Nielsen disputed that Aggregate had not been given notice.
"We had meetings where I personally told them, in no uncertain terms, what they needed to do," Nielsen said. "We wrote them that we found the zoning was not proper," he said. Nielsen later sent a copy of a letter he wrote to Aggregate in November 2012 summarizing a recent meeting and reiterating DPNR’s position that Aggregate needed to apply for a use variance or zoning change, he said.
The quarry cannot properly be grandfathered as a pre-existing nonconforming property because "it was not in operation continuously," Nielsen said. "There was an extended period of at least being dormant," he added.
Neither Nielsen nor Mapp provided dates of operation, but several accounts in the media suggest the property was a quarry until the late 1970s, then shut down operations until 1998, when Aggregate Inc. took over, and was not in use during the 1980s at all.
Asked about Mapp’s assertion that DPNR had previously said the property conformed, and should not change that position now, Nielsen said DPNR made a mistake when it approved those previous permits. "That was a former commissioner and a past administration and this commissioner found that had been done on a faulty basis," he said.
Reached by phone Wednesday afternoon, Mapp said the company was not ruling out applying for a zoning variance, but believed it should be grandfathered in, and that the company should get some sort of hearing on the zoning question before any letters of violation are issued. He argued that because the property had once been operated as a quarry, it remained a quarry even when it was not in operation, so should be grandfathered.
He also emphasized that the company had a dozen employees and had operated for more than a dozen years already. To reverse course now and disallow the quarry’s operation would be unfair to its owners, would throw people out of work, reduce tax revenues and create a monopoly on gravel production on St. Croix.
"We are only one of two operating in V.I. and when Aggregate went back to exporting goods … to St. Thomas, the cost of concrete fell more than $60 a cubic yard by the contribution of having another competitor in the V.I.," Mapp said.
Talk of Aggregate losing its license is damaging to the company, because contractors deciding to purchase large loads of gravel do not like uncertainty and become uncomfortable about future contracts when they hear about a possible problem with licensing, Mapp said.
Ultimately Aggregate wants to do whatever it needs to do, but wants a chance to be heard, he said.
"We are fully committed to continue working with the government," he said. "We want to be in full compliance with the law and we want a reasonable opportunity to address concerns and look at whether the grandfather law applies … but we have not closed the door on submitting zoning applications," Mapp said.
