March 17, 2006 – The V.I. government is once again pursuing acquisition of Linqvist beach by eminent domain.
Making good on a promise made this week by Planning and Natural Resources to "vigorously continue to pursue" the acquisition of the Lindqvist beach property though the Justice Department, the government filed an appeal Friday that seeks to get a decision made earlier this year by Superior Court Judge Brenda Hollar overruled.
The appeal comes on the heels of the owner's blocking access to the beach by closing a gate that has remained open for more than a year and posting a security guard complete with a big dog at the opening in the chain link fence that the developers, V.I. Investments, erected more than two years ago after purchasing the property.
Hollar had ruled against the government's motion to condemn the property, thus allowing it to be taken by eminent domain after paying the appraised value on the land to the owners.
In a hearing in December, Hollar said the government had not followed the legal requirements to condemn the property on St. Thomas' East End.
Among other things she said the appraisals were too old and one of the appraisers was not qualified.
She also said the Justice Department, acting on behalf of the government, had not properly deposited the $4.1 million required to pursue the condemnation.
In its appeal, Justice noted several issues it would address, including whether the government had satisfied the purchase requirements before pursuing eminent domain/condemnation proceedings; whether a temporary license issued to Patrick Tobin was sufficient to establish his right to appraise the property; and whether the government's action was in keeping with the Fifth Amendment, which guarantees that private property cannot be taken for public use, without fair compensation.
The property which includes a white sand, crescent-shaped beach where Virgin Islanders have relaxed and played for decades has been at the center of various disputes and court proceedings for as long as anyone can remember. First, the family of the original owners tied it up for years trying to figure who owned what and owed what to whom.
Finally, it was sold in 1989 to local developers who wanted to put condominiums and home sites on the property. The developers, under the name MAFF Inc., were repeatedly foiled by environmental groups in their attempts to obtain permits.
The property contains substantial wetlands, and environmentalists and others believe that fact could keep the property from ever being developed.
Years later, after numerous confusing legal moves including a bankruptcy proceeding, the property was conveyed in 2002 to a group called the Cove at Smith Bay, who put the property up for sale.
Around that time the government started to make moves to acquire the property. In April 2002 the Senate appropriated $3.5 million to purchase the 21-acres that include 900 feet of beach. As late as the end of February 2003 then Sen. Almando "Rocky" Liburd was urging the government to move quickly to purchase the property.
In a letter dated Feb. 21, 2003, Liburd told the governor that an outside investor has begun negotiations for the Lindqvist property. (See Buy Lindqvist Before It's Too Late, Liburd Urges").
In May 2003 it was sold to V.I. Investments for $3.5 million.
In November 2003, the new owners put up a fence blocking access to the beach, a move that set off a new stream of legal battles between the owners and PNR. Finally, V.I. Investments was forced to allow access to the beach. The gate had remained open until recently.
In a statement faxed from their attorney's office to the media Wednesday, the property owners said they would take whatever "lawful steps required to protect" their constitutional right to exclude others from their private property, including calling the police.
Their statement, along with stories in the media, prompted a four-page statement Thursday from DPNR which supported the rights of the land owners to bar access over land to the property, despite the fact that DPNR made it a condition of the permit they finally granted for the owners to build the fence that the "gate shall be open during daylight hours."
Several legal moves including the government's attempt to obtain the property and Hollar's subsequent decision to dismiss action for condemnation left the land owners with the right to deny access to the property, DPNR's statement said.
Controversy over the meaning and intent of the Open Shorelines Act continues to confound the situation and the community. In an April 2004 interview, Sen. Adlah "Foncie" Donastorg said he intended to try to legislatively strengthen the act. However, nothing has happened on that to date.
Thursday's statement from DPNR said "it [the Open Shoreline's Act] has not been interpreted to require access across private property to the shorelines." The act does guarantee access from the sea up to the waterline or vegetation line.
However, once the permitting process begins the department can and usually does make access from public roadways part of the agreement in issuing the permits.
At this point V.I. Investments has not applied for a major Coastal Zone Management permit, an event that will usually trigger an easement or access agreement.
Part of the ongoing problem at Lindqvist is that the beach and surrounding area are not maintained by any governmental agency.
It is not patrolled, there is no trash removal service and the secluded area has been a haven for various criminal activities. In 2001 a woman with a history of mental illness who had been living in her vehicle was found dead, the victim of homicide, by Lindqvist beach goers.
Many feel that even if the government does acquire the property, much work will be necessary to restore it to the peaceful, safe family gathering place of yesteryear.
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