Legality of Reliance’s Permit for Calabash Boom Housing Community Questioned

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While the St. John Coastal Zone Management Committee has approved a number of projects this past year, a significant number of the granted permits were approved pending compliance with special conditions.

The recently-issued permit for Coral Bay Marina LLC is one example of a major CZM permit that was approved — with a list of more than 20 special conditions.

Reliance Housing Foundation’s permit to construct an affordable housing community with reverse osmosis and sewage treatment plants in Estate Calabash Boom was also approved — with 15 special conditions attached.

The legality of approving permits prior to the completion of a number of specific conditions was questioned last month by Yvonne Tharpes, the V.I. Legislature’s Acting Chief Legal Counsel.

Lease from Senate Needed for R/O Plant
The Committee on Economic Development, Planning and Environmental Protection, chaired by Senator Neville James, met in St. Thomas on November 15 to discuss Reliance’s proposed reverse osmosis facility which would serve the Calabash Boom housing development.

The intake and outflow pipes for the r/o facility would cross submerged lands, which are owned by the people of the Virgin Islands. The Legislature and the V.I. Governor are ultimately responsible for granting leases for submerged lands.

The committee could not form a quorum, partly due to the absence of Senator at Large Craig Bar-shinger who was protesting the meeting not being on St. John, but Tharpes did testify.  

After the November 15 meeting, Tharpes composed an 11-page memo addressed to James outlining concerns of the Office of Legal Counsel regarding Reliance’s permit — which was granted on an incomplete record, according to the memo.

Permit Granted
“The St. John Committee granted the permit before it reviewed plans and studies that were required to determine whether the project was consistent with the requirements of the V.I. Coastal Zone Management Act,” wrote Tharpes.

While serving only as a legal opinion, not a “de novo review of the (St. John CZM) committee’s action,” the memo alleges that several terms and conditions in Reliance’s permit are illegal.

In granting the permit, St. John CZM Committee required Reliance representatives to comply with a number of conditions including furnishing an environmental assessment report and submitting a mitigation plan, air and water quality certificates and a spill contingency control plan.

These conditions raise legal problems, according to Tharpes’ memo. The full Senate approved the variance in a vote Friday, December 8.

Not Enough Information
“The fact that the CZM Committee has required the Permittee to submit Air and Water Quality Certificates, a Spill Contingency Control Plan and a letter of compliance with the fire code and to conduct monitoring in accordance with a monitoring schedule that has yet to be developed, evinces that the CZM Committee did not have sufficient information to gauge whether the project as finally proposed was consistent with the goals, policies an standards of sections 903, 906, and 911 (of the CZM Act) and incorporates to the maximum extent feasible, mitigation measures sufficient to mitigate adverse consequences of the development,” Tharpes wrote.

“The CZM Act unequivocally prohibits the Committee from issuing a permit before it has received and approved certain required plans or studies,” continued Tharpes in the memo.

Conditions for Approval
While CZM Committees are allowed to issue permits subject to reasonable conditions, “if any condition of a major Coastal Zone Permit requires the applicant to submit a plan for satisfaction of a condition to the Division of Coastal Zone Permit Management and/or to the Committee for review and approval, no Coastal Zone Permit shall be issued until such plan(s) has been reviewed and approved,” Tharpes wrote and quoted the CZM Act.

Blatant Disregard for Law
The legal counsel even goes a step further, writing that the St. John CZM Committee disregarded the law.
“The reverse osmosis plant, the sewage treatment plant, the generators and the excavation and land clearing activities all are threats to air and water quality,” wrote Tharpes in the memo. “The Committee decision to require only after the permit is issued a study by the Division of Environmental Protection and certification that the project complies with air and water quality standards is a blatant disregard for and violation of the law.”

Tharpes went on to list a number of previous court cases which did not uphold permits before spill control plans, air quality certificates and other conditions were not submitted, including Caribbank Fin. Group v. St. Croix Coastal Zone Management Committee and the V.I. Conservation Society v. V.I. Board of Land Use Appeals.

“If the Special Conditions in question were not satisfied before the permit was issued, then the permit was issued in violation of the law,” Tharpes wrote.

Zoning Uses Questioned
The land in question, an eight-acre parcel in Estate Calabash Boom is not zoned for a reverse osmosis plant or a sewage treatment plant and lift station, Tharpes contends in the memo.

“According to the EAR, the 8.4-acre parcel on which the housing and the sewage treatment plant and lift station are to be located is zoned S-Special,” wrote Tharpes. “While the Special Zoning District allows for dwellings, including detached, attached, semi-attached group and multiple dwellings and accessory buildings, sewage treatment plants or lift stations are not among the permitted uses in the S-Special Zoning District.”

“A reverse osmosis plant is not a permitted use on either the S-Special Parcel or the W-1 parcel,” Tharpes continued.

Terms, Conditions Illegal
Despite Tharpes contention that Reliance’s CZM major permit was illegally issued — and without another hearing by the Committee on Economic Development, Planning and Environmental Protection — Reliance’s reverse osmosis plant request was approved by the full Senate on Friday, December 8.

“For the reasons expressed above, Coastal Zone Permit CZJ-5-05-L&W, was approved by the St. John Committee of the Coastal Zone Commission in violation of the law, and consequently several terms and conditions are illegal,” Tharpes concluded in the memo.