Save Coral Bay, a nonprofit environmental organization, has filed a lawsuit against the governor of the Virgin Islands and the Summer’s End Group LLC to block the construction of a marina in Coral Bay.
The group filed its suit in Superior Court on July 21 to contest a permit issued to the developers of the 144-slip marina, which was modified by Gov. Albert Bryan Jr. in January. The project, originally known as Yacht Club at Summer’s End, is now branded as the St. John Marina.
According to court documents, Save Coral Bay is seeking a judgment to declare the consolidated permit issued by Gov. Bryan null and void. It further seeks to prevent the Summer’s End Group from “commencing any construction purportedly authorized by the consolidated permit.”
In January, Bryan sought to move the controversial project forward by “administratively” consolidating a major water use permit (for the docks) and a separate major land use permit (for the supporting infrastructure, shops, restaurants and other facilities) which were originally issued to Summer’s End in 2014.
The governor took this action in response to a 2016 ruling by the Board of Land Use Appeals to consolidate the two permits since the two portions of the development were inextricably linked. Prior to the governor’s action in January, the failure to consolidate the permits was one of many objections to the marina’s approval cited by senators in October.
The lawsuit filed in July contends Bryan’s consolidation of the two permits allows the developers to bypass the procedures set out in Coastal Zone Management law which were enacted to protect the environment.
The lawsuit says the governor exceeded his authority when he consolidated the two permits and sent the modified permit to the Legislature for approval.
Bryan sent the permit to the Senate under a provision for emergency enforcement power, 12 VIC, Sec. 911g of the Coastal Zone Management Act.
That 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.” Andrew Simpson, the attorney who filed the complaint on behalf of Save Coral Bay, said the statute was intended to allow the governor to act to address environmental damage caused by an unanticipated consequence of a permit already granted.
For example, if driving a piling during construction caused a breach in the aquifer and this led to saltwater seeping into the groundwater, the governor could act to modify the permit already granted. However, the governor’s emergency enforcement powers do not apply to a permit that has not been approved by the Senate and officially issued, Simpson said.
Simpson said changes in the modified permit enacted by the governor could have negative environmental effects, just the opposite of what one would expect from a permit supposedly modified to protect the environment.
First, the modified permit includes plans for the construction of a boardwalk over submerged lands (tidal waters along the shoreline), something which was not part of the original permit. Simpson said the addition of a boardwalk requires an environmental assessment report and approval by various government agencies, none of which has been done.
Second, the modified permit excludes a parcel, 13-A, which was originally leased to the Summer’s End Group but is now owned by Paul Sabers. Sabers’ attorney said Sabers has no agreement with the Summer’s End Group.
This parcel is critical to the project because it includes a gut that channels runoff from the Coral Bay watershed to the sea.
According to Simpson, the developers had planned to put in structures to capture the runoff and divert it to a wastewater treatment facility on parcel 13-A, a factor that mitigated the development’s negative consequences to the environment.
“This was a selling point for the project,” said Simpson, “and there is nothing in the modified permit allowing [the developers] to put the plant anywhere else.”
In addition, the lawsuit also contends that when the Board of Land Use Appeals ruled that the water and land permits should be consolidated, that meant that the project should be sent back to the St. John Committee of Coastal Zone Management for further scrutiny.
However, the five-member CZM board has never had an opportunity to consider the modifications. Instead, the committee chairman, Andrew Penn, signed the modified permit and sent it on for approval by the governor and Senate.
The modified permit was the subject of a six-hour hearing of the Senate Committee of the Whole on July 7.
At that hearing, senators repeatedly acknowledged that the arguments for building a marina 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.
The project has generated controversy since it was first presented to the community at a Coastal Zone Management hearing in 2014.
Simpson said although the lawsuit has been filed in Superior Court, neither the governor nor the principals of Summer’s End have yet been served a summons.
“We’re awaiting them,” Simpson said.
Chaliese Summers, one of the principals behind Summer’s End Group, said, “Summer’s End has not been served with a copy of any lawsuit, but both attorney Simpson and David Silverman [president of Save Coral Bay] have made it abundantly clear that they intend to continuously file lawsuits to delay this project.”
“Every challenge they have filed against the project has been turned away by the courts because they are baseless,” Summers said. “These lawsuits are intended to drive up costs and cause delay, but they have no merit.”
Summers said the developers were moving forward on this project and would not be deterred by bad-faith lawsuits. She emphasized the developers’ plan to “bring a world-class marina to St. John that will bring much-needed employment, environmental remediation and infrastructure improvements to Coral Bay.”