Senators all but approved two zoning requests for St. John at a meeting of the Committee of the Whole held at the Legislative Annex in Cruz Bay Wednesday night.
The portion of the meeting dealing with the zoning changes began at around 9 p.m., more than three hours after the meeting began, and continued past 11 p.m. Government officials made arrangements for a special ferry to take them back to St. Thomas.
Most of that time was spent discussing a zoning request made by Jerome Lake, the agent for the development of a commercial complex at 5C Estate Adrian on property owned by Sen. Brian Smith. Smith did not attend the meeting.
Lake was incorrectly issued a permit by the Department of Planning and Natural Resources to build a gas station, restaurant, and laundromat, according to DPNR Commissioner Dawn Henry. Based on the faulty permit, the developers invested nearly $2 million to construct the gas station, according to testimony.
By law, DPNR does not have the authority to approve a request to amend the zoning for the construction of a gas station, according to Henry.
Attorney David Bornn, speaking on behalf of Lake, said to senators, “It is to you we have come to right this wrong.”
“Unless we have a check in hand, we can’t expect this gentleman to cease and desist,” said Sen. Positive Nelson. “The government made the error. Let’s fix it.”
Sen. Janette Millin Young questioned how such an error could have occurred. An explanation of the sequence of events follows.
History of the zoning request
The site in question, which was zoned R-1, low-density residential, originally came before the Senate for a zoning change in 2005.
According to an article in the Tradewinds published Sept. 5, 2005:
“Brian Smith proposed a…zone change request for parcel 5C, Estate Adrian, Cruz Bay quarter from R-1 (Residential-Low Density) to C (Commercial) to construct a small commercial building about the same size as Meada’’s Plaza on one acre of land. ‘“I don’t intend to over-power the area and I have spoken to all of the neighbors who are behind me all the way,”’ said Smith. “’This would be a 70 foot long by 30 foot wide, West Indian type of structure with a hip roof and stone front.” The two-story building would be located off Centerline Road near George Simmonds Terrace and provide 32 parking spaces.’”
DPNR’’s [Planning Director Marjorie] Emanuel recommended that a use variance, not a rezoning, be granted to allow for a convenience store, a boutique and light professional-type businesses. Most of the senators agreed to support DPNR’’s recommendation except Sen. Celestino White who chided Smith for agreeing to a use variance instead of going for the rezoning.
Smith was granted a zoning variance, but the property remained undeveloped for ten years. According to Bornn, on Dec. 17, 2015, a hearing was held to amend the variance to allow for the construction of a gas station and supermarket. Notice of the meeting was published, and the meeting was well attended. “There were no objections,” said Bornn.
The paperwork attesting to this second variance was destroyed when Hurricane Irma damaged DPNR offices at the airport, Henry said.
Construction began, and the property had multiple inspections, and no objections were raised until 2017, according to Bornn. By then the grocery store was complete, and construction of the gas station was underway when “DPNR said there was a zoning issue and requested that the applicant apply for a zoning variance.”
Henry explained that in January 2017, the applicant applied for a business license for the gas station. In the course of issuing the license, it was discovered that the variance granted following the hearing in 2015 was issued in error. According to Henry, the applicant made a mistake on the application and wrote “commercial” in the section marked “zoning” when in fact it was still designated R-1 with a use variance. A gas station could not be permitted under the R-1 zoning designation. Henry said that the DPNR staff member who failed to confirm the correct zoning no longer works for the department.
When senators asked whether Lake continued to construct the gas station after the error was discovered, Henry said, “It is my understanding that he continued. We received complaints, so I issued a cease and desist order.”
Henry said enforcement is “ultimately the department’s responsibility, but we do rely on the community because we don’t have the manpower to enforce everywhere.”
Because of the R-1 zoning restriction, in early October Henry recommended that the variance allowing the proposed gas station be denied, but that requests to build a laundromat and 200-seat restaurant in an additional building on the site be allowed to proceed.
Senate listens to public testimony
Only two members of the public testified at Wednesday’s hearing. Lucia Francis, a native St. Johnian who once worked at DPNR, testified in favor of the project, saying the island needs an addition gas station closer to Coral Bay. There are two gas stations on St. John, both located near Cruz Bay.
She spoke in favor of the employment opportunities generated by the project. (Lake testified that the complex would provide nearly 100 jobs.) “[Mr. Lake] has employed many of our youths who needed a second chance,” Francis said.
Prior to testimony on the proposed variance, several dozen people entered the hearing chamber. They stood to show their support of the project when they were asked by Bornn.
One St. John resident spoke against the issuance of the variance. Pam Gaffin said, “We are here tonight to discuss a massive commercial project that is already built, already concreted over, and already finished except for the actual placement of the pumps. The massive construction project was built by the developer in full awareness that a variance was needed. In fact, the gas pump plumbing and platforms were being poured during a DPNR variance hearing in May, and the stop work orders issued were completely ignored. Is the permit granting by this body a done deal? Are you going to go along with this spectacular example of privileged people getting away with breaking the law?”
Towards the end of the meeting, several senators indicated that they were in favor of allowing the zoning variance and congratulated Lake on his entrepreneurial spirit.
Sen. Janelle Sarauw questioned whether the Senate should make zoning decisions such as this one. “We’re not experts in the matter. It becomes highly political,” she said.
Zoning request for Estate Enighed is not contested
A request to rezone two parcels, 14C and 14D Estate Enighed, to allow for the construction of two three-story structures, also was considered by the Senate. Roosevelt David, serving as the agent for Daren Marhula, said the construction on the .46 acre of undeveloped property will provide much needed affordable housing.
The properties are currently zoned R-2; David said the owner was requesting a change to R-4 density to allow for the height of the proposed structures. He said the buildings would contain six one-bedroom units which would be rented at the rate of $1,500 per month. DPNR officials recommended that the zoning be amended to R-3 to be consistent with the density of nearby properties. David agreed that with some changes to the siting of the buildings, the plans could work with the change proposed by DPNR.