A lawsuit filed against Bay Isle Associates by four owners of a Cruz Bay cottage took a major turning point with the filing last week of a motion for partial summary judgement asking for the removal of the top two stories of the developer’s luxury condominium development, Grande Bay Resort, and damages to be determined at trial before a Superior Court judge.
Alexander Jadan, Natalie Jadan, Anastasia Trey and Liza Trey, owners of the cottage Paradise Found, filed their original suit in November 2005, alleging zoning violations of height, density and lack of lateral support. The families used to enjoy an unobstructed view of Cruz Bay from the deck of their cottage; now, only a sliver of blue water can be seen beyond the far left edge of the Grande Bay development, whose buildings C and D are just a stone’s throw from the Trey and Jadan family property.
The latest motion filed by the families, who have owned the property since 1955, may end once and for all the dispute over how to define a building technique popular on St. John — the mezzanine.
Mezzanine, Garage Level in Question
The definition several local architects and builders have used to define a mezzanine — “a mezzanine shall be deemed a full story when it covers more than 33 percent of the area of the story underneath said mezzanine,” as found in the V.I. Code — is erroneous, according to the motion for summary judgement.
“The above Zoning Code definition of a story employs, but does not define, the term ‘mezzanine’ and the Virgin Islands Zoning Code does not contain a definition for the term ‘mezzanine’ elsewhere,” according to the motion. “Since the Virgin Islands Code does not contain a definition of ‘mezzanine,’ other sources must be consulted to settle upon a commonly accepted meaning for the term.”
The 1997 Uniform Building Code, which was the operative Building Code adopted by the Virgin Islands through October 2004, defines a mezzanine as “an intermediate floor placed within a room,” according to the motion. The 2003 International Building Code, adopted by the Virgin Islands in October 2004, defines a mezzanine as “an intermediate level or levels between the floor and ceiling of any story,” the motion continues.
Grande Bay’s basement garage level should also be considered a story, bringing the development’s total number of stories to five, the plaintiffs allege. A basement or garage is only counted as a story when its ceiling is more than five feet above grade, and the ceilings of the basement garages in buildings A, B, C and D are all more than five feet, according to the motion.
Various Density Calculations
The motion also takes to task the density of Grande Bay. The plaintiffs allege that Bay Isle included parcels 86-4 and 86a-4 to increase the size of the overall building area, increasing the amount of people allowed at the luxury condominium development.
The plaintiffs say the two beachfront parcels are zoned W-1, however, and should not have been included in the overall lot size.
“The defendant’s use of deeded acreage/square footage of the beach lots to increase the density capacity of the parcels upon which the Grande Bay Resort buildings A, B, C and D are actually placed is improper in light of both the letter and the spirit of the Virgin Islands Zoning Code,” according to the motion.
Different plans submitted by the defendant and its architects include various total density calculations, including 134, 137, 126.5 and 176 people, when the total density allowed at the site based on the lot size is 124 people, the motion states. The actual total density is 151 when the lock-out units — which the developer markets as “live in one, rent out the other” — are considered two separate units, according to local architect Robert deJongh’s affidavit.
Department of Planning and Natural Resources Planning Office director Dr. Wanda Mills-Bocachica knows first-hand the effects the construction of Grande Bay had on the Trey and Jadan families, she explained.
“Personally, during the time when the site was being excavated for the Grande Bay development, I was a friend of [the late] Doris Jadan, so I was able to view the impact this development had on her lifestyle and her health,” said Mills-Bocachica. “I don’t want you to assume that DPNR is totally alien from the impacts of this project.”
Public, Private Nuisance
The project was not reviewed by the Planning Office, then known as the Division of Building Permits, because there was no zoning issue, Mills-Bocachica added.
“Consulting with the Division of Planning was an option, given that we provide technical assistance, but it wasn’t a requirement in terms of our house policy,” she said. “What the V.I. Code does require is that if a property is improperly zoned, the applicant has to seek rezoning through our office or apply for a group dwelling permit. That’s when we become involved and give recommendations to the Division of Permits.”
Policy at DPNR has changed, and departments now have more of an open dialogue with one another, Mills-Bocachica added.
As a result of Grande Bay’s zoning violations, the luxury condominium should be considered a public and private nuisance, the plaintiffs allege. The private nuisance directly impacts the value and enjoyment of the Trey and Jadan families’ Paradise Found, according to the motion.
“A life’s worth of work is ripped out from underneath you and taken away,” said Liza Trey. “You can’t rebuild, and there’s no support group for people in my situation to go to and commiserate.”
“Biggest Turning Point”
Bay Isle attorney Simone Francis was served with the motion for partial summary judgement on Tuesday, December 18, and has 20 days to respond. The plaintiffs then have 10 days to respond to Francis’ rebuttal, at which point the case will be heard before a judge. Trey would not speculate on the outcome of the motion.
“I have no idea how this is going to turn out,” she said. “We are going to proceed now and once the defendants’ attorney submits her response, we’ll give our responses and then it’s in the court’s hands.”
The plaintiffs submitted the motion, which “proves the facts on paper,” according to Trey, in lieu of having a trial by jury.
“This is basically the biggest turning point in this case,” said Trey. “We went for the gusto. We’re proving our case on paper.”
Kelly Frye of Bay Isle Associates did not return calls requesting comment on the motion last week.