April 12, 2002 – Saying there has been no evidence of constitutional violations, Territorial Court Judge Brenda Hollar threw out the lawsuit filed by the Environmental Association of St. Thomas and St. John and St. John against the government and the developers of the proposed Botany Bay resort.
In an order filed in Territorial Court on Thursday, Hollar dismissed the case filed by EAST and several Fortuna landowners against the Planning and Natural Resources Department, the Legislature, Gov. Charles W. Turnbull and Botany Bay Partners.
EAST charged in its suit that the government had violated the constitutional right to due process of law when the Legislature in December passed a bill to rezone property at Botany Bay, a bill that Turnbull later signed into law. The rezoning was the first step toward development of a $169 million resort at Botany Bay.
EAST noted that Botany Bay had been listed as an "area of particular concern" because of its pristine environment and the historic value of ruins and pre-Columbian archeological sites. The association said the Legislature violated due process requirements when it ignored DPNR's recommendation not to grant the rezoning.
Hollar ruled that EAST did not have legal standing to bring the lawsuit, as it would not suffer any direct injuries from the government's action. She also said it is the Legislature's right to make zoning decisions and that the court does not sit as a "super-Legislature" to second-guess political decisions.
"The Legislature is authorized and free, in its sole discretion, to amend any provision of the zoning law, zoning maps or zoning boundaries without running afoul of an individual's Fifth Amendment rights," Hollar wrote. The Fifth Amendment guarantees all persons due process and equal protection under the law.
Henry Feuerzeig, attorney for the Botany Bay Partners, said the dismissal of the suit clears the way for moving forward on the development project. "As long as this lawsuit was out there, it created a cloud over the project," he said. "We said all along that this suit was baseless, and Judge Hollar's opinion states precisely that."
The Botany Bay development — which is to include a 125-room luxury hotel, condominium and time-share units, and residential homesites on the far West End of St. Thomas — still needs a Coastal Zone Management permit and building permits before construction can begin. The partners are still putting together the project financing, which was hampered by the existence of the lawsuit, Feuerzeig said.
Representatives of EAST declined to comment Friday on the dismissal of the lawsuit, saying they had not had time to discuss the matter.

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