So That There Will Be No Misunderstandings…

Dear Editor,

While it appears that the Senate has had the last word on the subject, I wanted to make a few comments and corrections in regard to the Sirenusa project under construction on St. John. In numerous articles of various newspapers the project has been referred to as the “$35 million project” but that figure was the amount that Carlo Marzano claimed to have spent to date when he testified at the Senate hearing months ago.

It was at this same time he also stated that the total construction cost would reach $60 million. But when considering the value of any project it is the sales figures that define the scope and not the construction cost. Given that the average unit is selling for about $2 million, the 40-unit project should be referred to as the “$80 million project” or as the “$94 million project” if another seven units authorized by the Senate are also approved by DPNR.

That is a significant difference but one that is worth noting as we put this project in the context of our island community and the “rich continental opposition” of which Mr. Marzano, the “local boy” developer, complains is so unfair. As we digest what our Senators have done by giving him our development rights, we want to understand what makes this “born here” developer such a deserving neighbor when his annual income may be $20 million more than most of us and he has given back so little to the community including honesty and respect.

Over and over again Mr. Marzano has claimed that Sirenusa has been “misunderstood” and so it would have been sensible for everyone, especially our Senators, to verify the facts before they acted because so little of this project has proven to be as presented. For instance, did we misunderstand that this project would make a $20 million profit without further subsidizing by the Senate on the backs of the taxpayers? Did we misunderstand that the 2004 group dwelling permit limited the project height to two stories and restricted site disturbance? Did we misunderstand that the public should have a legal right to comment upon the project now being built? Did we misunderstand that the project permits state that water, power, and sewer connections already exist when they have yet to be identified?

These are not “misunderstandings,” these are significant deviations from the intent of the law and a willful attempt to circumvent both legitimate due process and appropriate governmental review. As should be clear, this type of poorly conceived, high impact development is simply not sustainable and will continue to damage our island on many levels more than it has already. Without transparency and accountability such projects will both cheapen our community as well as undermine our quality of life and it is saddening that our elected officials (except Sen. Hill) do not have the dignity to stand against such a plight.

So what is the truth? That is a tough question but what can be verified is that at the group dwelling permit hearing Sirenusa was first described by project architect Bill Karr as “environmentally sensitive” and in fact he used it as an example of his “low impact design approach” and his ability to preserve the unique site and natural species in his 2005 presentation of a similar project for Parcel K Est. Gift & Regenbach, a proposal that was denied by DPNR. The existing Group Dwelling Permit for Sirenusa specifically limits the project height to two stories and also limits the foundation height to five feet (see GDJ-04-2, Condition #10) but these conditions continue to be ignored as the 75-foot steel structure rises out of the small neighborhood against a backdrop of raw excavated stone.

When DPNR recognized the violations of the permits in 2006, a cease and desist order was issued and work stopped on the larger buildings. After a year of study we can only conclude that the developer determined that it was less expensive (more profitable) to change the governing laws than to correct the violations and so applied to the Senate for a zoning variance. Due to the overwhelming community opposition, Mr. Marzano paid for a full page advertisement in the Daily News on May 18, 2007 to “set the record straight” and gain support for such a publicly opposed idea.

While this ad only documented the inconsistencies of previous statements and the ongoing revisions to the project, it apparently convinced the majority of the Senators that the zoning variance had some hidden value of which the public is not aware. Therefore, despite professional and DPNR recommendations, despite the mountain of contradicting evidence, despite the legal recommendations of the Senate’s legal counsel, and despite the governor’s veto, the Senate supported the zoning variance with a veto override and authorized the variance to the shock and at the utter disappointment of St. John. That appears to be the verifiable truth.

But as Sirenusa now prepares to submit DPNR permit amendments to implement the Senate’s approval, the question is whether the legislature has acted legally and will the so-called “zoning variance” stand up in court. As is apparent from the Senate’s bill, the Sirenusa zoning variance would be better described as a zoning change as it allows 1) a minimum of seven additional units; 2) increased site density; 3) increased building height; 4) increased site occupancy; 5) reduced setbacks; and 6) reduced parking. Though every limitation of R-2 zoning has been changed to that of R-3 zoning, this zoning variance was based solely upon financial grounds.

As repeated in testimony during public hearings and within many articles, the developer and his agents have stated that the project cannot continue because “the bank will not fund this project with only 40 units.” While $20 to $30 million seems to be a fair profit margin on an investment and “the bank” has yet to be identified, “financial hardship” is unfortunately the only reason specifically identified by the V.I. Code as illegitimate for a zoning variance request (see VI Code, T.29 § 236, Item g). Therefore, as pointed out by the V.I. Code, the Senate’s legal counsel, and the governor himself, the Sirenusa request for a zoning variance based upon financial relief violates the written intent of the law and is simply not valid.

As a result Bill 27-0040, pushed through by Sen. White, constitutes “spot-zoning” for individual profit and is defective at best, if not illegal, and sets the precedent that a community’s zoning rights are for sale (see May 9, 2007 Senate 24 page “Memorandum to Senator Hill”). Instead of voting based upon one’s conscience perhaps our Senate majority could have read the memo available to them and voted based upon easily verifiable facts, the intent of our governing laws, and as the integrity that their oaths of office demand.

This brings us back to “misunderstanding” the project. Because much of the construction at Sirenusa has not been permitted by DPNR, it continues to be in violation of the existing permits despite the Senate’s override of the Governor’s veto. The permits for an R-2 zoned, low density project are still in place and have yet to be amended for any design change. Until any proposed changes are approved, all Sirenusa construction not authorized by DPNR is knowingly in violation of the law. As Mr. Marzano was quoted as saying that “our architect told us to build four stories and he would get the permits later;” well that time is well past due.

While we wait to see if the Senate’s actions will survive the legal scrutiny and challenges predicted by the Senate’s legal counsel, DPNR has yet to review, let alone approve, an amendment to the existing driveway permit, group dwelling permit, earth change permit, and/or building permits. As such, all continuing construction not included in these active permits are both willful and continuing violations of the V.I. Code and represent a potential for significant and justifiable legal penalties under the jurisdiction of the Attorney General.

Pursuant to the same governing laws that we all must abide, such actions are punishable by a maximum of $250 and 10 days in jail per day of violation (see V.I. Code, T.29 § 240, Penalty for violation). Therefore, if those responsible were convicted, the owner, architect, and contractor could each be held accountable for up to $91,250 in fines and imprisoned for 10 years for each year of their violations. Now that makes the idea of responsible development and professional accountability much easier for everyone to understand.