CZM Special Conditions for Lovango Cay Overturned by Board of Land Use Appeals

A boat is docked at the controversial barge access facility on Lovango Cay north of St. John.

In an action which shocked and disappointed members of the St. John Committee of the Coastal Zone Management (CZM) Commission and residents of Lovango Cay, the V.I. Board of Land Use Appeals overturned a number of special conditions that had been mandated for the construction of a barge ramp on the pristine eastern portion of the small cay north of St. John.

After a heated public hearing in July 2005, the St. John CZM Committee – adopting CZM staff recommendations – decided in August, 2005 to approve the John Joseph Markus Trust’s major application, with a number of special conditions.

Special Conditions for Major CZM Permit
Four of the 12 conditions were the removal of the existing catwalks; not allowing the installation of eight small jet ski and dinghy lifts; not allowing a reverse osmosis line, and not allowing the installation of a concrete ramp at the shoreward side of the barge landing.

Each of those four special conditions was overturned by the six-member Board of Land Use Appeals.

[adrotate group="6"]

“Obviously we don’t agree with the decision to overrule the CZM Committee,” said St. John CZM Committee member Madeline Sewer. “It wasn’t a frivolous decision that we made. It was based on what we thought was hard evidence.”

“We were trying to do what was best for the area,” she continued.

Fellow St. John CZM member Gerald Hills – who joined the committee after the Lovango decision was rendered – agreed. “We are shocked that the CZM decision was overturned because the project serves no public interest and is harmful to the environment,” he said.

“I am disappointed that the Board would have modified the opinion, judgement and conditions of the St. John CZM Committee,” said Brion Morrisette, who was a member at the time of the committee’s decision hearing. “I know the committee, at the time they were faced with the application, were trying to balance the considerations and avoid the result of rewarding a developer who had pushed the envelope at every opportunity.”

Catwalks Wider Than Permit Allows
At their August decision meeting, the St. John CZM Committee cited a number of concerns about the barge ramp, including the width of the catwalks. The Trust’s Army Corps of Engineers (ACE) permit stated that the catwalks were supposed to be two-and-a-half-feet wide. When they were built, however, the catwalks were five-feet wide.

“Everything there can remain except the catwalks; in my mind the three docks created by the catwalks is essentially a marina,” St. John CZM Committee chair Julien Harley said at the August decision meeting.

“Temporary” Concrete Barge Facility?
St. John CZM committee members also expressed concern that the “temporary” barge ramp facility was actually constructed from about 100 yards of concrete.

“We’re here today to pass muster on an application to seek approval for improvements that have already been made,” said Morrisette, at the August meeting. “This applicant has pushed the envelope in every respect.”

“The applicant put this committee in an uncomfortable and awkward position; this is not the posture that this board likes to be put in,” he continued.

The barge ramp was supposed to be built for winch use so that near-shore coral would not be damaged from boat props. Recent sightings of a large Trust-owned boat backed up close to the shoreline under its own power, however, appear to show that this condition is not being followed.

No Reverse Osmosis Plant Plans
Members also questioned what the requested reverse osmosis line was for, since there were no plans for a reverse osmosis plant included in the application. During the July public hearing, Joseph Markus was questioned about the scope of development plans on his approximately 44-acre property.

Although he was not specific, Markus conceded that plans include 18 subdivisions. Some residents on the small off-shore cay claim, however, that there are at least 30 separate lots on Markus’s property.

Controversy Dates Back Four Years
Controversy at the proposed ramp at Parcel 1, Estate Lovango Cay, dates back to January, 2002, when a barge carrying construction materials for the Trust caused damage to about 8,000 square feet of coral reef.

The damage prompted the Department of Planning and Natural Resource’s (DPNR) CZM Commission to issue a NOVA (notice of violation, notice of assessment of civil penalty) to the Trust along with a $2.9 million fine.

Settlement Agreement
The fine was eventually reduced to $100,000 and a settlement agreement was reached between the Trust and various governmental agencies, including DPNR, CZM and the Army Corps of Engineers (ACE).

The agreement called for the construction of a temporary barge access facility, relocation of coral reefs in the path of the barge access facility and the installation of 12 mooring balls, eight of which were mandated for public use.

Despite the St. John CZM Committee’s decision, the Board of Land Use Appeals, by overturning the conditions, will now allow for the installation of the jet ski lifts, the catwalks to remain, the installation of the reverse osmosis line and the construction of the concrete ramp.

Their decision has angered Lovango Cay residents.

Lovango Residents Angered
“It is my understanding that the Board of Land Use Appeals makes its decision based on legality, like response times to permits and such,” said Wally Leopold, who has lived on Lovango for the past five years. “It’s my understanding that the Board of Land Use does not look at density problems or aesthetics, only legalities. There seems like no justification was given for their decision.”

“If that is the case, CZM and DPNR can only consider it a slap in the face,” he continued.

“It is a disappointing decision,” agreed 20-year Lovango Cay resident Ron Klecan. “There was no reason given, as far as I know, why they overturned CZM’s decision. Just to give them a carte blanche after a unanimous CZM decision is very disappointing.”

The Board of Land Use Appeals “hears appeals of any person aggrieved by an action of the CZM Commission, its committee, or the Commissioner of Planning and Natural Resources,” according to Title 12, Section 914 of the V.I. Code.

Members From Across Territory
Reginald George, Aloy Nielsen, John Woods, Fred Vialet, Elton Chongasing, James Hindels and Jose Penn are the current members of the Board. George and Nielsen are Crucians; Woods, Vialet, Hindels and Chongasing are from St. Thomas; and Penn is a St. Johnian. Chongasing is the Board’s chairperson.

Their backgrounds range from engineers, architects, attorneys and accountants.

The members of the Board are nominated by the governor and then go through the legislative process. Terms are supposed to last for two years, but often stretch longer because of a lack of replacements. Penn has served on the Board since 1998, and believes that it is an important government vehicle.

Board is “Important Mechanism”
“This is an important mechanism that is in place,” he said. “We are all interested in following the law. We want to make sure that everyone is getting justice.”

The St. John CZM Committee can appeal the Board’s ruling in V.I. Superior Court, but members have not decided what action, if any, they will take.

“Right now, I don’t know if we are going to appeal the decision in the courts,” said Sewer. “We were upset by it, yes, and we are considering what options we do have.”

CZM should appeal the Board’s decision, according to Leopold.

CZM Should Appeal or “Close Shop”
“If they don’t appeal this, then CZM might as well close up shop and everyone go home,” he said. “It’s just disgusting.” The Trust has not been forthcoming with their plans for the property, Leopold explained.

“The whole thing about this project, is that no one knows what is going on down there,” he said. “You don’t go and request eight jet ski lifts unless you are planning a big development. I would like to know what he is planning down there.”

“If they would come forward and let the public know what their intentions are down there, everyone would be pleased,” Leopold continued.

The Board’s legal council, Assistant Attorney General Gabriela Stastny—who was appointed to the post in late-November and will leaving the territory on April 13—will issue the Board’s written decision by April 12.

“I will not comment on the decision until the opinion is written,” she said. “Once that is done, I will answer any questions.”