Regulators give ‘governmental activity’ exemption to marina and hotel project at Fort Monroe

Published 4:29 pm Tuesday, November 2, 2021

Project won’t require permits for impacts to wetlands, beaches and dunes

By Sarah Vogelsong

Virginia Mercury

A state regulatory panel determined that a plan to build a new boutique hotel and redevelop a marina at Fort Monroe is “governmental activity” that won’t require special permits for potential impacts to wetlands, beaches and sand dunes, sparking criticism from environmental groups.

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The decision on Oct. 27 by the Virginia Marine Resources Commission, which advances a project announced by Gov. Ralph Northam’s administration this May, involves 95,000 square feet of state-owned coastal bottomlands.

“The land may be owned by a state entity and of course leased to the private entity, but the permit applicant itself is still a private entity, and the proposed use of a hotel and a marina is not a government purpose in and of itself,” Mary-Carson Stiff, policy director of environmental nonprofit Wetlands Watch, told the commission.

The Chesapeake Bay Foundation, which filed an 11th-hour letter of protest with the commission last week, also took the same stance, arguing that state permitting exemptions for “governmental activity” were intended to apply to construction and maintenance of public infrastructure like roads and sewers.

“By no reading of the statutory definition would this privately owned for-profit business qualify,” CBF Virginia Director Peggy Sanner wrote in the letter. “Exempting such a use from permitting on the grounds of ‘governmental activity,’ is a clear departure from the exemption’s intent and will set a harmful precedent.”

Assistant Attorney General Kelci Block, however, contended that the redevelopment of the site by Smithfield-based Pack Brothers Hospitality could be considered government activity because the property will continue to be owned by the commonwealth and “constructing public buildings is explicitly listed as a governmental activity.”

“Here it is also serving a national monument along with a visitors’ center that I believe is state run and a museum at Fort Monroe that’s state run,” she said. “This is a state property that is providing services to commonwealth citizens.”

Fort Monroe, a 565-acre former U.S. Army post off the coast of Hampton at the mouth of the Chesapeake Bay, has long attracted interest and tourism. The fort sits on the site of Old Point Comfort, where the first enslaved Africans arrived in what became the United States in 1619; UNESCO earlier this year designated it as a “site of memory” for the role it played in the slave trade. During the War of 1812, the fort was captured by the British, and it remained a Union stronghold in Confederate Virginia during the Civil War. At the conflict’s end, Confederate President Jefferson Davis was imprisoned there.

In 2011, the U.S. Army officially closed the site and handed it over to the state of Virginia, where it is managed by the Fort Monroe Authority.

Authority Executive Director Glenn Oder said the management has been a challenge: “Everything has outlived its useful life expectancy, so we are in the constant state of trying to catch up and repair roofs and sump pumps and so forth,” he told the VMRC last week, reporting that Fort Monroe loses about $6.5 million annually.

“We’ve exhausted our ability to do the things that we can do, and now what we’re doing is we’re reaching into the adaptive reuse community and asking for private investment and private developers to come in and take care of things like the marina,” he said.

In May, Northam’s administration announced the authority had approved a 40-year ground lease with Pack Brothers to redevelop the Marina District at the southwest edge of the fort.

Pack’s plans call for a sweeping reworking of the site with a $40 million investment. Existing docks at Old Point Comfort Marina will be replaced with new floating docks and a “super dock” designed to reduce wave impacts. The current store and marina office will be replaced, while other buildings will be revamped as a 500-seat restaurant and 250-person event facility. The company also plans to construct a living shoreline and said there would be no impacts to an existing 350 square feet of wetlands on the site.

“We’re not covering it, we’re not moving it, we’re not destroying it,” said Randy Pack, a principal with the company. “We’re not impacting those wetlands at all.”

Most significantly, a new 90-room hotel, pool and deck will be constructed over the water — a design that meant it would need VMRC approval.

Virginia law makes it unlawful for anyone to “build, dump, or otherwise trespass upon or over or encroach upon” the submerged lands that underlie state waters without a permit from the commission. Such lands are extensive throughout tidal areas: VMRC guidelines estimate Virginia has 2,300 square miles of them — an area larger than the state of Delaware.

According to commission staff, the Pack Brothers project is expected to encroach on over 95,000 square feet of state-owned bottomlands, with 28,000 square feet of that representing new encroachments by buildings.

That troubled commission member Christy Everett, who is also the Chesapeake Bay Foundation’s Hampton Roads director. According to Everett, VMRC’s authorization of the project was inconsistent with the body’s record of discouraging the construction of “non-water-dependent” structures over the water.

“’I’ve heard us talk to people who are facing cancer and they just want a shade to protect their wives from sun and we have held the line and we have sent a very strong and consistent and important message that if it’s not water dependent, it should stay on land,” she said. Approval, she continued, “sends a message to the private citizens and individuals that government says, ‘Do as I say, but not as I do.’”

Everett also expressed concerns about the permit exemptions, saying that she believed the commission could call for the reviews even if they aren’t required by law and urging members to “really think thoroughly if this is truly a public entity.”

Steven Bowman, Virginia’s commissioner of marine resources and commission chair, and member John Zydron agreed with the attorney general’s office that the development was a governmental one.

“At the end of the day after this building is built, it will remain on property owned by the Commonwealth of Virginia,” said Bowman. “The subaqueous encroachment will be by the Commonwealth of Virginia over the subaqueous bottomlands of the Commonwealth of Virginia.”

Everett was the only VMRC member to vote against the authorization. Member Chad Ballard said he didn’t “like the fact that the state is able to go through a shortened process versus what a private business or citizen would have to do” but said he thought it was a problem that should be fixed “in Richmond,” not at the commission.

Jay Ford of the Chesapeake Bay Foundation said last week that the organization could appeal the decision and was “reviewing our options before making any decision.”

“There’s no one that would look at this project and say this is clearly my government at work,” he said. “This was a real missed opportunity for leadership from the state.”