Despite much anticipation, relatively few sparks flew at a jam-packed meeting held Wednesday night in Cruz Bay to discuss a bill that seeks to amend Coastal Zone Management regulations.
That’s largely because Senator Alicia Barnes, sponsor of the legislation, announced at the beginning of the meeting that the bill is written to streamline administrative processes within CZM, not to propose new regulations for offshore restaurants and bars or to argue the merits of initiating Tier 1 zoning for the territory.
Tier 1 projects are those within a certain distance of the sea which are likely to have a great impact on marine life.
“This bill is not intended to be a Comprehensive Land and Water Use Plan,” Barnes said. “We’ve scheduled a hearing for that in the Legislature on Feb. 20. It is not designed to address floating businesses. The code is silent on that issue. My staff and I are doing our best to find a regulatory framework for this new business model.”
Instead Bill No. 33-0105 is designed to update a number of regulations within the Virgin Islands Coastal Zone Management Act, which went into effect in 1978 and has not been amended since.
The proposed legislation updates the current Virgin Islands Coastal Zone Management Act to accurately reflect the name of the Department of Planning and Natural Resources, which was formerly called the Department of Conservation and Cultural Affairs.
Although the topics which many residents came to hear were not discussed at the meeting at the Legislative Annex, several issues related to CZM’s role were raised and then questioned by audience members. They included:
– Time limits within which the Department of Planning and Natural Resources must rule on permit applications
– Time limits for developers to begin construction on a project once a permit is granted
– “Threshold values” for determining whether a proposed project requires a minor or major permit
– Length of terms for CZM board members
– “Proxy board” composition for CZM boards when a quorum cannot be attained
Changes regarding timelines
Barnes began the town hall discussion by saying that technology has changed since 1978, when CZM staff, who are part of DPNR, had to manually circulate hard copies of permit applications. Since the advent of email and digital technology, applications can be processed more quickly.
During her career, Barnes said she has worked for private developers and also served as commissioner of DPNR, so she understands the importance of balancing the often-conflicting agendas of developers and environmentalists. She said new timelines are necessary to spur economic activity and keep projects from languishing during long periods of bureaucratic wrangling.
Under the proposed legislation, a CZM committee would have 21 working days following a public hearing to “act” – that is, render a decision – to approve or disapprove a proposed major project. Once a decision has been made, that information will be made public to anyone who requests it in writing. CZM committees would be able to request a single 30-day extension when seeking additional information.
Current legislation calls for approval decisions to be made within 30 calendar days.
Barnes said she has met with DPNR staff as well the Board of Land Use Appeals, Chamber of Commerce and the Board of Realtors in order to develop the new time frames. DPNR has indicated the deadlines are achievable, she stated.
Staff shortages has been a vexing issue for DPNR, which has had problems finding qualified planners and engineers to evaluate applications and enforce permits on a timely basis. Barnes said the budget for DPNR has been increased in FY 2020 to provide salary increases to make these technical positions more attractive and to fill the three open positions in the St. Thomas–St. John District.
When audience member Lenyse Shomo asked CZM Director Marlon Hibbert if he had sufficient staff to process permit applications to meet the new deadlines, he smiled and said, “The timelines have not been implemented yet.”
Pam Gaffin asked, “With the new time frames, what happens if a timeline isn’t met? What are the consequences? Does the developer win [by automatically being granted the permit]?”
Barnes responded, “If a decision is not made, it’s on DPNR. Nothing changes. The developer does not have the right to do X, Y and Z.”
The proposed legislation would also require the DPNR commissioner to act within 30 days on a minor CZM permit.
Regulations to enforce action on the part of DPNR came to the public’s attention in October 2019 when the owners of Cowgirl Bebop LLP filed a lawsuit against the Government of the Virgin Islands for failing to act on a minor permit application in a timely manner.
Cowgirl Bebop has been seeking a permit to install two moorings for a floating bar/restaurant located off Mingo and Grass cays.
Lorelei Monsanto cautioned against imposing deadlines for ruling on projects that might appear simple but are deceptively complicated. “We have to be careful when we try to streamline things,” she said.
At Wednesday’s meeting, Barnes reiterated that the scope of Bill 33-0105 does not include regulations regarding offshore businesses such as Cowgirl Bebop or Lime Out.
The proposed regulation changes would also extend the amount of time a developer is given to begin construction on a project. Barnes said under present law, “Once a permit is issued, they have 12 months to initiate work. That’s not sufficient time for design, procurement and management.”
Under the proposed regulations, developers now have 36 months to begin construction. “If you can’t do it [in that time frame,] we don’t think you’re serious,” she said.
Threshold for determining whether a minor or major permit is required
Under current CZM regulations, any Tier 1 project costing less than $75,000 requires only a minor permit. Unlike major permits, minor permit applications are not reviewed by a Coastal Zone Committee and are not vetted by the public at a hearing.
Barnes said this figure is outdated. Bill 33-0105 would amend the threshold for determining whether a permit is minor or major from $75,000 to $400,000.
However, the dollar amount is not the only factor that determines whether a permit is minor or major. Under the proposed regulations, within ten days of an application being deemed complete, the DPNR commissioner may decide to “bump up” a minor permit to a major permit if the commissioner determines “that the proposed activity is likely to have significant adverse environmental consequences.”
This issue arose last year when the owner of Maho Crossroads, a busy beachfront bar on privately owned land within the Virgin Islands National Park boundaries, argued that the improvements made on the property amounted to less than $75,000 and required only a minor permit.
Environmentalists responded that the sensitive nature of the location made further scrutiny necessary and requested that the project be reviewed by the St. John CZM Committee and presented at a public hearing.
Changes in the terms for CZM committee membership
St. Thomas, St. Croix and St. John each has its own committee of five members which decides whether a major permit application should be approved or not. The proposed legislation changes the terms for CZM committee members from two to four years. Barnes said that serving on a committee requires “a particular skill set” and longer terms will “allow for some continuity in the CZM process.”
Throughout the years, there have been long periods when positions on committees were not filled and quorums for meetings could not be met.
The proposed legislation addresses this by allowing the commissioner of DPNR to be a voting member of the committee. It changes the rules on what constitutes a quorum. “This is necessary to address the lack of attendance or the lack of members on our many boards and commissions,” according to a handout distributed at the meeting. “It also creates a proxy committee where the majority has to be from the district the application is filed in; this will ensure that one district isn’t making decisions for alternate districts.”
Audience members questioned whether the proposed changes would protect the rights of the residents of each island.
In 2014, the St. John CZM Committee had only three appointed members when it was required to rule on Summer’s End, a controversial marina development planned for Coral Bay. One member did not vote because of a prior conflict of interest, and so the decision to approve the project was made by only two members. This raised a number of legal issues that are still being challenged in court.
The proposal to form a proxy committee would address this quorum situation. At Wednesday’s meeting, resident Stephen Hull said he has misgivings. He proposed a hypothetical situation. If only one member of a local committee voted to approve a project that was widely unpopular with residents, it could still be approved with the addition of two proxy members who also voted to approve.
Barnes said the proposed regulations for committee membership would need to be approved by the National Oceanic and Atmospheric Administration which oversees CZM programs throughout the United States.
Bill 33-0105 also creates a new subsection to address the construction of a temporary structure, such as a shed for a nonprofit fundraiser.
It changes fees for permits.
It changes the timelines within which a permit must be sent to the Senate or the governor for approval.
It allows regulators to visit places they regulate. In past years, DPNR officials were prevented from visiting Little St. James and Great St. James, islands owned by Jeffrey Epstein, to determine if permitting violations had occurred.
Barnes said that changes to the bill are still being determined and she is in no rush to force its passage. “The engagement process has begun. There is no perfect bill. There is no perfect anything. Let’s not let the perfect be the enemy of the good,” she said.