Feb. 23, 2002 – Seven Smith Bay property owners are appealing a recent Territorial Court ruling that allows plans to proceed for a warehouse to be built among their homes.
The appeal, filed Friday in both Territorial Court and District Court, asks that a three-judge panel review the earlier ruling on the residents' request to stop Merchant's Market from building the warehouse at 8-REM Estate Smith Bay.
A zoning variance sponsored by Sen. Roosevelt David and approved by the 23rd Legislature in 2000 paved the way for the warehouse construction, and clearing of the land began a year ago. The residents went to court last fall to ask for an injunction, but the case was dismissed by Judge Rhys Hodge, citing legislative immunity.
In papers filed in the District Court, the residents say they were denied due process as property owners and that lawmakers acted outside of their scope by giving Merchant's Market the go-ahead without telling them about the re-zoning request.
Homeowner Horace Lewis has been leading the challenge of the zoning variance. "We went to court and filed charges against the Legislature," he said. The lawmakers, he said, "had 90 days to act on the bill, and they didn't act on it in the time. They waited until 239 days and then slipped it in as an amendment. They stuck it on a St. Croix rezoning bill, and they passed it as that."
But, Lewis continued, "Judge Rhys Hodge said the Legislature has absolute immunity and if we wanted [to seek] relief, we would have to do so at the polls. What kind of democracy is that?"
Attorney Rosalie Simmonds Ballentine, writing the appeal on behalf of Lewis and six other property owners, said lawmakers do not have "absolute power" to overrride property rights set out in the U.S. Constitution. "The power of the Legislature in these instances, where particular rights and interests are at issue, cannot be absolute," she wrote. "The enactments relative to rezoning and variances must comport with constitutional constraints on the zoning power, including those which pertain to due process."
The case is being watched closely by the League of Women Voters. "Due process was not followed, and the rights of a whole lot of property owners have been trampled," league president Erva Denham said. "To me, this is a possible landmark case, because we are questioning this whole practice of spot rezoning where everyone has said 'no' to it except the person who is benefitting from the change."
Luis Elias, Merchant's Market general manager, said last fall that the company bought the parcel of land from the Vernon Ball Trust in December 2000 after the variance was in effect and had invested "over a million dollars" in preparation for constructing the warehouse. Work on the structure began last February, but was stopped in July by the Planning and Natural Resources Department because of a dispute over road access.
The homeowners are asking the courts to decide their appeal before the construction work begins.