Cowgirl Bebop’s bid to place 10 moorings and a 4,800-square-foot floating restaurant and bar in Pillsbury Sound off Mingo Cay is a step closer to reality after the Board of Land Use Appeals voted Thursday to approve a major permit application for the project that the St. John Coastal Zone Management Committee had denied.
The decision came after almost four hours of arguments – at times testy – by lawyers for both sides, and three weeks after a ruling by V.I. Superior Court Judge Denise Francois granting the project a minor permit by default because the Department of Planning and Natural Resources did not address it in a timely fashion.
DPNR did not adequately respond to the minor permit application for 252 days after it was submitted in June 2019, Francois ruled. The developer of Cowgirl Bebop LLLP filed suit for a decision by default that October. Under V.I. Code, DPNR has 15 days to notify an applicant of any problems with a permit application and is required to act upon a completed permit within 60 days after it has been submitted.
Cowgirl Bebop is owned by William “Bill” Perkins III, a hedge fund manager and professional poker player who lives on St. Thomas. He also owns Brisa Max Holdings VI LLC, a beneficiary of tax breaks through the University of the Virgin Islands Research and Technology Park.
The major permit application was filed on May 8, 2020, after former St. John CZM Board member David Silverman argued that the floating restaurant and bar amounted to a structure worth more than $75,000 and therefore required a major permit.
Discussions Thursday ranged from whether the application accurately reflected wind and wave heights in Pillsbury Sound, the environmental impact on the waters around Mingo and Grass cays, and nesting habitats on those islands, to Cowgirl Bebop’s ability to prevent anchoring or swimming in the area by its guests, security provisions at night, and whether it had earnestly sought alternative locations.
At times, the hearing felt more like a court proceeding, with multiple motions about evidence and standing considered and voted upon, and arguments over case law and precedence, prompting board member Jim Hindels to remark at one point, “This is getting long.”
Cowgirl Bebop attorney Malorie Winne Diaz argued that a major permit was not required at all, because moorings need only minor permits, and the proposed floating restaurant is a vessel “capable of being transported on water under its own power” and not a structure. She also claimed that the major permit should be granted because just as with the minor permit, it was not acted upon within the statutory time frame.
Diaz said Cowgirl Bebop’s proposal also is in line with Gov. Albert Bryan Jr.’s mission to revitalize the charter industry and will provide long-term job opportunities to young Virgin Islanders in everything from marine maintenance and mechanics to pump-out and delivery services.
The St. John CZM Committee’s decision to deny the major permit, despite DPNR staff recommending it be approved, was “arbitrary and capricious,” Diaz said.
Attorney Kanaan Wilhite, representing Mingo Cay LLC, argued that moorings and a floating restaurant and bar will have an adverse environmental impact on the 50-acre island that Donald Sussman recently donated to the Trust for Virgin Islands Lands. It is among the few undeveloped islands left in the U.S. Virgin Islands, he said, and an important bird nesting habitat.
“This becomes an attractive nuisance that invites environmental damage,” said Wilhite, who also urged the board not to act as though Francois’ ruling on the minor permit is final, noting it is subject to appeal to the V.I. Supreme Court. A request for reconsideration of the order has been filed, according to St. John CZM Committee attorney Julie Beberman.
In the end, however, the board decided that the facts as presented did not support rejecting Cowgirl Bebop’s appeal of the St. John CZM Committee’s decision to deny the major permit.
Board members Hindels, Fred Vialet, Roberto Cintron, Jose Penn and Jeffrey Boschulte – sworn in as a new member of the board at the start of Thursday’s meeting – voted unanimously to approve the application, and then on an amended motion to approve it with conditions determined by CZM staff. Board chairman John Woods, citing a conflict in the case, recused himself and left the meeting early. He did not provide details as to the conflict. Penn also disclosed that his brother, Andrew Penn, serves on the St. John CZM Committee.
Even then, Beberman made several last-ditch efforts to have the matter remanded back to the St. John CZM Committee to deal with outstanding concerns, such as where wind and wave heights were measured for the application, which drew an admonition from attorney Adriane Dudley, representing Cowgirl Bebop along with Diaz.
“I know it’s too late and you’ve already ruled, but I would like you to reconsider,” said Beberman. “I’m concerned about the board replacing the committee,” which grants major permits, as opposed to the DPNR-CZM staff, which determines minor permits, she said.
“The board has acted. It has granted the permit,” said Dudley, sounding exasperated. “By statute, it is the board that attaches conditions to the permit,” and if it chooses to refer to, or defer to, CZM staff, or the St. John CZM Committee, that is within its purview, she said.
The meeting, held on Zoom, drew more than 50 viewers at one point, reflecting the controversy that has surrounded the project since it was first proposed in 2019. Supporters say it will boost the St. Thomas charter boat industry and provide an alternative to the popular Willy T’s floating bar in the British Virgin Islands.
Opponents say the project poses an environmental hazard in the rough waters of Pillsbury Sound, where three Boy Scouts drowned in the late 1980s when their dinghy was overturned by an unexpected swell. They also have cited a lack of regulations regarding the use of floating bars and restaurants.
The chat section of the Zoom meeting reflected some of those sentiments, with Lorelei Monsanto writing, “The submerged lands are being damaged because DPNR is not doing their due diligence. Heads need to roll. Our environment is being destroyed by the body that should be protecting our resources.”
Dan Boyd wrote that the Willy T at Norman Island in the British Virgin Islands is in a protected bight, while “the area that Bebop wants to place their vessel is NOT a protected area and will be a dangerous location for any type of marine tourism activity.”
Cowgirl Bebop’s proposed 120-foot by 40-foot barge with multilevel lounge has yet to be constructed and will have two electric motors fueled by solar panels and batteries for a total of 600 horsepower, and a bridge for navigation, Alex Golubitsky, general counsel for Brisa Max Holdings, told the board. It will be removed from the water during the height of hurricane season, from Aug. 15 to Oct. 15, and any time poor weather dictates, Diaz said.
The permit still must be approved by Bryan and ratified by the V.I. Legislature, and the developers also will need to obtain permits from the U.S. Army Corps of Engineers for the mooring field, the barge moorings, and the placement of the semi-permanent barge itself.
The U.S. Coast Guard also must grant its approval if the barge is considered to be a vessel under USCG rules.