Legislature’s Mistake Showcases Spot Zoning Pitfalls

During Thursday’s hearing, Sen. Marvin Blyden tells his committee members he is aware of the Legislature’s mistake and has tried to correct it once before. (Legislature photo)

The Committee of the Whole heard from 10 different applicants seeking to rezone their properties, five applicants from each district, Thursday, where the practice of spot zoning demonstrated how these requests often cause dissonance between property owners and the surrounding community. (See: Op-Ed: Stop the Virgin Islands Zoning Disaster)

The U.S. Virgin Islands has a long and fraught history with the practice of spot zoning, which by design allows for the Legislature to approve property zoning variance requests, impacting all neighboring properties abiding by the current zoning. Thursday’s hearing was no exception to the history of tension caused by spot zoning, as each request was either opposed by the community, challenged by the Legislature, or the property owner was left unsatisfied.

Aside from the controversy spot zoning has incited in the territory, it has also opened the government up to making mistakes. One purported mistake has wreaked havoc for property owner Orlando Martinez, who requested his Anna’s Retreat property be rezoned from residential low-density one- and two-family, to business-scattered.

Jennifer Jones, legal counsel to Martinez, said the property was sold to Martinez as a rezoned business-scattered property, even paying commercial taxes, but the Department of Planning and Natural Resources has refused to honor the prior rezoning – leading Martinez to request the property be rezoned again.

“After DPNR indicated it had no record of the rezoning and extensive research of the legislative records, we found proof that the previous property owner, Renaa Rhymer, had applied and received rezoning for Parcel No. 148-323 Anna’s Retreat to B-3,” Jones said.

Prior to Martinez purchasing the property, it operated as a bar and restaurant, which Jones said the Lieutenant Governor’s Office records reflect as a rezoning to business-scattered and assessed the commercial rate for the property since the 1990s.

“DPNR has refused to agree to correct the record in honor of the previous rezoning requested by Ms. Rhymer … DPNR also failed to address the fact that denying the rezoning and severely restricting the uses that were already granted by the Legislature works a taking without just compensation under the Fifth Amendment to the U.S. Constitution. Not only is the property use historically commercial, the property is adjacent to only one residential property,” Jones said, adding the residential property is also owned by Martinez.

Planning and Natural Resources sent the Legislature notice, saying, “The Department recommended that the petition to rezone Parcel No. 148-1 Estate Anna’s Retreat from R-2 to B3 be denied … the Planning office reaffirms its original recommendation without holding further hearings after finding and determining there has been no material change in conditions since the application was originally submitted.”

Sen. Marvin Blyden said he was aware of the issues surrounding the plot and had drafted legislation in early 2019 to correct this error. “However, both DPNR and the legislative council advised me at that time that due to how much previous time had passed, since 1984, simply correcting the error … without new applications, and new hearings, would violate the due process clause of the Constitution, he said. “However, we are here today because this body, in 1984 made a clerical error. The decision as to whether to rezone this property was already made 38 years ago.”

Independent from Martinez’s application, legislators also received testimony regarding a rezoning request which would allow for the property to build 20 additional dwellings on the land.

The request has been fiercely contested by the neighboring properties during public meetings held prior to the hearing, where they argued the neighborhood could not withstand the amount of traffic that would occur should the dwellings be rented to a carousel of visiting tourists.

Sen. Donna Frett-Gregory said the Legislature will not be acting on any of the rezoning requests until they conduct site visits of each of the properties. No action was taken on Martinez’s rezoning request during the hearing.

Sens. Blyden, Samuel Carrion, Frett-Gregory, Dwayne DeGraff, Novelle Francis Jr., Alma Francis-Heyliger, Kenneth Gittens, Javan James Sr., Franklin Johnson, Carla Joseph, Janelle Sarauw, Genevieve Whitaker, and Kurt Vialet were present for the hearing. Sens. Milton Potter and Steven Payne Sr. were absent.