The future of Coral Bay came into the spotlight once again when the Senate Committee of the Whole met Tuesday to consider a modified permit and a lease for submerged land for a controversial 144-slip marina in St. John.
The Senate committee called to testify the principal owners of Summer’s End Group, LLC along with their consultants, attorneys, and supporting members of the community to make their best case for moving the marina forward.
Senators repeatedly acknowledged that the developers’ arguments were compelling: a marina would bring much needed revenue to the territory suffering from the effects of twin hurricanes in 2017 and the current COVID-19 pandemic; the marina’s sewage pump out facilities would address a long-standing problem with waste disposal in the harbor; and a marina would provide entrepreneurial opportunities for ancestral families who own property nearby.
As the hearing went on, however, several senators expressed misgivings with the process by which the permits were modified.
Senators questioned whether present economic and environmental conditions allow Governor Albert Bryan to bypass Coastal Zone Management processes and modify the permits now under consideration.
Some background about the project’s permitting process is necessary in order to understand the present issue.
The St. John Committee of the Coastal Zone Management approved separate land and water use permits for the Summer’s End Marina (now also known as the St. John Marina) in 2014 after a contentious hearing.
Lawsuits and appeals followed.
In 2016, the Board of Land Use Appeals ruled that the permits should be consolidated since the land and water portions of the project would be interdependent and have cumulative impacts. However, their directive wasn’t implemented until January 2020.
Kenneth Mapp, who was governor at that time, opposed the project, and the approval process stalled. However, when Gov. Albert Bryan took over 2018, he took a renewed interest in the marina, and in 2019 he forwarded the permits to the Senate for ratification.
In an October 2019 Senate Committee of the Whole hearing, senators found multiple reasons for not acting on the governor’s recommendation.
These included disputes with several landowners who leased property to Summer’s End Group; a lawsuit with a competing marina project; and a change in ownership of two sizable pieces of property (13 A and 13 B Estate Carolina,) making them unavailable to the marina developers.
The change in ownership required major changes in the project’s design, which many say should have resulted in the permits being sent back to the St. John Committee of Coastal Zone Management for approval.
In a December 2019 letter to the governor, Senate President Novelle Francis said the permit was “defective” because “it was signed and issued unilaterally by the Chairman of the St. John Committee without a vote of approval or other involvement of the St. John Committee.”
However, in January 2020, Gov. Bryan administratively consolidated the permits (as directed by the Board of Land Use Appeals in 2016) and sent them back to the Senate for ratification.
Now, six months later, expressing confusion over discrepancies on the permit before them, senators at Tuesday’s hearing asked Coastal Zone Management Director Marlon Hibbert for clarification, since the Senate’s legal counsel was not available.
Hibbert said, “We are not privy to the modifications you are considering now. We cannot provide an opinion on this. We approved the original permits. There’s no violation with them. We have not seen the modifications.”
Upon further questioning, Vonetta Norman, an attorney with DPNR, said, “The modification and consolidation were done under the governor’s independent power, and not through the department.”
Senators questioned whether the governor’s action was appropriate. Bryan sent the permit to the Senate under a provision for emergency enforcement power, 12 VIC Sec. 911g of the Coastal Zone Management Act.
The statute states, “the Governor may modify or revoke any coastal zone permit that includes development or occupancy of trust lands or submerged or filled lands approved pursuant to this section upon a written determination that such action is in the public’s interest and that it is necessary to prevent significant environmental damage to coastal zone resources and to protect the public health, safety and general welfare.”
Chaliese Summers, one of the principals of Summer’s End Group LLC, testified that the territory’s economic need – along with the “deplorable” condition of waters in Coral Bay harbor – meet the conditions of the statute. Earlier in hearing, Summers said feces (presumably from unregulated boats) were found floating in the harbor; she could provide photographic proof.
Although senators agreed that the waters of the harbor needed remediation, some senators were not convinced that the governor’s actions were appropriate.
“The process has become convoluted,” said Sen. Janelle Sarauw. “I’m not against a marina, but it’s a question of process. As lawmakers we set precedents.” Sarauw questioned the exclusion of the St. John Committee of CZM from the decision, and the use of Sect. 911g, which she termed the part “of the V.I. Code with the biggest loophole” to bring the permit before the Senate.
Sen. Kurt Vialet said senators shouldn’t rely on the governor’s interpretation of Sec. 911g. “Why can’t we move forward and send the modification to the St. John Committee of Coastal Zone for their approval?”
The answer to the question has to do with the makeup of the five-member committee; one of the members, David Silverman, has been a vocal opponent of the Summer’s End project. Vialet addressed the issue directly, saying that Silverman would not be able to vote on the permit because of a clear conflict of interest.
Vialet had other concerns with the use of Sec. 911g, which he said refers only to projects which are already fully permitted, “but does not speak to one that hasn’t started.”
Vialet also pointed out that if Sec. 911g was being adhered to, then technically the modified permit sent by the governor to the Senate in January would have been implemented already without the Senate’s approval; the statute states under emergency provisions it would have gone into effect in 30 days if the Senate didn’t act.
Vialet said he supports the project but the Senate’s ratification would come back to haunt them if the approval isn’t done the right way.
Boyd Sprehn, an attorney for Summer’s End Group, said developers “were trying to do things the right way.” He told Vialet the U.S. Army Corps of Engineers, a federal agency that must also approve the project, is looking to see that the V.I. Legislature ratifies the project, showing community support. “Your approval precedes the U.S. Army Corps of Engineers’ approval,” he said.
Earlier in the hearing, Katherine English, an attorney working on behalf of the developers, explained that changes in Army Corps personnel have led to delays in processing the Summer’s End marina’s permit. A new USACE reviewer has recently come on board and is taking some time to become familiar with literally thousands of pages of documents, English said.
Senators also heard from Jeff Boyd, president of Marine Management and Consulting, who said that, in spite of the recession and the pandemic, the recreational boating industry is growing and a dozen other islands in the Caribbean are expanding existing facilities or building new ones.
David Cattie, another attorney working on behalf of Summer’s End Group, said that properties leased by Summer’s End that were under dispute last October are being resolved.
Cattie said agreements concerning parcels owned by the Marsh Sisters Trust are moving forward with the appointment of new trustees, and that the sale of another property (owned by Genoveva Rodriguez and Jim Phillips) to Summer’s End will soon take place. However, no representatives from any of these individuals testified at the Senate hearing Tuesday.
Senators did get to hear from Samuel Rhymer, property manager for the Moravian Church V.I. Conference, which owns the land on which a competing marina is being developed. That project, known as Sirius or T-Rex, is planned for 11 acres across the harbor from the proposed site of the Summer’s End marina.
Last October, Rhymer testified that the Summer’s End project would deprive them of the “full and equitable use of their land for their own marina project” and damage the environment. At Tuesday’s hearing, Rhymer said their concerns about Summer’s End are still pending in Superior Court.
“We have been totally ignored by Summer’s End,” Rhymer said. He characterized the move to consolidate the permit as “unfair and should be treated as illegal.”
Sen. Donna Frett-Gregory questioned the Summer’s End Group’s financing for the project. Summers said financing the $73 million project “has always been the easy part. We have multiple funding sources; the permitting is what has held us up.” Summers said the developers have already invested $4 million in the permitting process.
Frett-Gregory asked Summers to provide letters of financial interest by investors.
Towards the end of the six-hour hearing, Sen. Allison DaGazon compared the frustration she felt to her recent experience when the Senate considered legislation to legalize the recreational use of cannabis in the territory. “Something is always missing,” she said. “We are the ones who vote yes or no on a process no one understands because we want progress.”