PHILIPSBURG–Minister of Public Housing, Spatial Planning, Environment and Infrastructure VROMI Egbert Doran failed to comply with the judgment of the Court of First Instance on September 4, 2020. As a result, Country St. Maarten is forced to pay 480,000 Netherlands Antillean guilders (US $267,000) in penalties.
Country St. Maarten was ordered to execute the settlement agreement with Alegria Real Estate NV within 48 hours of service of the judgment for the granting of an area of 13,525 square metres of water rights in long lease. The bailiff handed over the verdict on Wednesday, September 9. The government then had two days to accommodate Alegria.
Due to negligence on the minister’s part, the sanction came into force on September 12, 2020, imposing a penalty payment of NAf. 10,000 on the government for each subsequent day.
The government, represented by Minister Doran, was served for the second time on March 3, 2021. The Daily Herald has the bailiff’s warrant which states that the advanced sum of NAf. 480,000 represents penalties forfeited from September 12 to October 30, 2020.
At the request of Alegria Real Estate NV, the bailiff served country St. Maarten again on September 1, 2021. The sum of NAf. 480,000 in penalties and still unpaid legal costs, was increased by NAf. 721.50 for the bailiff.
This newspaper has tried in vain to find out whether Minister Doran has paid the bill. Doran, Alegria, lawyers and bailiff do not want to confirm or deny that the NAf. 480,000 has been transferred.
The judge had ordered that in case of non-compliance, country St. Maarten or the VROMI Ministry would have to pay daily penalties of NAf. 10,000, up to a maximum of NAf. 1 million. Whether that limit has meanwhile been reached is not known.
Alegria Boutique Hotel filed an injunction on August 12, 2020, regarding the issue of water rights which dates back more than three years. The VROMI minister informed Alegria on May 31, 2018, that he had received a request for the issuance of long-lease rights for an area of approximately 13,525 square metres of water for the development of the hotel in providing “additional service” to tourists and “resident clients.”
In the letter, the minister stated that the Department of Domain Affairs was in the process of drafting an advice and the resort was informed that the minister “in principle” had no objection to the issuance of long lease, adding that “the only construction to be allowed in the area in question is a breakwater and a sea aquarium.”
In an email message of March 6, 2020, then-VROMI Minister Chris Wever informed the ministry’s secretary-general Louis D. Brown that he had no issues with the breakwater and the pier “once they [Alegria – Ed.] can ensure no corals are damaged.”
Alegria believed that government was stalling and filed for an injunction which led to a settlement agreement in early May in which it was agreed that the hotel would receive an area of 13,525 square metres at Burgeaux Bay. After an exchange of several email messages, Alegria withdrew the injunction, but current VROMI Minister Egbert J. Doran was of the opinion that government lawyer Aernout Kraaijeveld, who led the negotiations between government and the hotel, was not authorised to commit government to the closed agreement.
On August 19, 2020, Alegria once again initiated summary proceedings in which it demanded government’s compliance with the settlement agreement regarding the right of long lease “under certain conditions.”
Alegria, represented in these proceedings by attorneys Eric de Vries, Charles Rutte and Carry-Lynn Martinus, stated without being contradicted that it had made “expensive” investments and that it had been negotiating with various VROMI ministers for two years about the issue of long-lease water lots.
Previous ministers also largely agreed with the issue and the hotel wants to recoup the investments made, Alegria stated during the injunction hearing of August 28, 2020.
The court derived from email messages exchanged between Alegria and country St. Maarten that Alegria had made an offer to government about the issuance of long-lease rights which was “unconditionally” accepted by attorney Kraaijeveld on May 5, 2020.
Government claimed that Kraaijeveld was not authorised or mandated to close an agreement, but according to the judge, Alegria was allowed to trust that the lawyer was the legal representative appointed to act on behalf of government.
“Alegria could have justified confidence that the country had granted a power of attorney to Mr. Kraaijeveld to accept the offer as stated in the email of 4 May 2020 from the representative of Alegria.” Therefore, government is bound by the settlement agreement, the judge stated in the verdict.
Country St. Maarten, represented in these proceedings by attorney Zylena Bary, had argued that Alegria’s claim should be rejected to protect the environment, as the issuance of long-lease water rights could damage corals in the area. According to government, this was insufficiently researched and that would still have to be done.
In the provisional opinion of the Court of First Instance, sufficient attention to the protection of the environment was paid in the draft decision to issue long-lease water rights. However, the long lease does not affect the fact that for the structures to be constructed in the water area, permits will have to be granted in the context of which environmental protection must be taken into account, the judge stated in the verdict.
“Third parties can seek legal protection from the Administrative Court if they believe that environmental interests have not been sufficiently taken into account,” he added.
In connection with the payment of penalties, the court stated that a penalty payment is an incentive to comply with a conviction in a timely manner.