After two hours of online discussion, the Board of Land Use Appeals failed to reach a ruling on Thursday concerning the proposed construction of a three-story, single-family home on Maho Bay.
Attorney Alex Moskowitz, representing Littoral Woodland, LLC, challenged a ruling by the Department of Planning and Natural Resources to deny a permit for construction on a narrow piece of shoreline property, 2-A Remainder Estate Miland, on the western edge of Maho Bay. The property lies within the boundaries of the Virgin Islands National Park.
Moskowitz said the Department of Planning and Natural Resources staff did not respond within 15 days after the permit was deemed complete in August 2017 and therefore, the permit should have been granted by default.
DPNR Attorney Vonetta Norman said the permit had never been deemed complete; the department had responded with a list of deficiencies in the application in a timely manner in August 2017. Further, she said, Moskowitz’s method for calculating 15 days was incorrect because he had used calendar days and not business days.
Hurricane Irma struck within days of the permit application’s alleged deadline, bringing further action to a standstill as communications went down throughout the islands for several months. Moskowitz said he wasn’t informed of the permit application’s denial until Feb. 12, 2018.
Paul Kalloo, environmental planner with the Department of Planning and Natural Resources, said that when he went to investigate the site in January 2018, he found the area much changed by the hurricane. The storm surge had removed the line of vegetation, and although it was growing back, his measurements indicated that there was not sufficient area to construct the home as designed.
Extensive discussion followed regarding mandated setbacks for the narrow piece of property, which extends from Northshore Road to the rocky shoreline. Board of Land Use Appeals Commissioner Fred Vialet said he had visited the site in November 2019 and saw “substantial changes” to the shoreline.
One reason the permit application was denied in 2017 had to do with the septic system.
“You have to contend with water coming from two sides – storm surge and runoff” from the Maho Bay Watershed, Kalloo said. “A septic system has to be engineered to withstand that.”
Kalloo said the water table at the site was too high for the septic system as designed.
“Dig down two feet and you’ll hit water,” he said.
Officials on both sides argued whether the property was in the flood zone. Commissioner Roberto Cintron said, “The map clearly shows that the property was in the flood zone.”
Much of the area along Northshore Road at Maho Bay was inundated for weeks following Hurricane Irma; photographs taken in October 2017 show the extent of the destruction to the vegetation from the storm surge and runoff.
Kalloo said the property site had been subdivided from 2-Remainder Estate Miland, and the owner could safely build on the adjacent upland property. No one pursued this aspect of the discussion.
As they discussed the issues, several commissioners on the Board of Land Use Appeals realized that they were missing several critical documents, including a full-scale survey/site plan. This was the first time the board has met virtually, and they did not discover the exhibits were missing until more than an hour into the discussion.
It was determined that it was illegal for one of the commissioners, who had the complete files, to simply email the missing exhibits to the others. The Department of Justice first has to ascertain that the missing documents are relevant, said board Chairman John Woods. The glitch was part of the “new normal,” of virtual hearings, he added.
Although all six commissioners voted to stay the decision pending the appeal, several seemed inclined to find a solution.
“We need to assure that property owners are assured of their rights,” said Commissioner Jose´ Penn.
Littoral Woodland, LLC was listed as the appellant on the Board of Land Use Appeals’ notice of a public hearing. However, the V.I. government’s MapGeo system indicates the owner of the property is Sharolissa’s Fancy, LLC. Both LLC’s are listed at the same New York address.
Brett Rowland, who was identified as the client representative for Littoral Woodland, LLC, attended the Zoom meeting and made brief remarks. “I’ve waited five years for my hearing,” said Rowland. “We’re not in the flood zone. I feel like a babe in the woods for having tried to comply all the way.”