New addition to Dart/gov’t plan
Cayman Islands Cabinet Ministers said Thursday that plans to widen a two-lane section of the Esterley Tibbetts Highway in George Town are now being discussed with Dart Realty Cayman Ltd. as part of the National Roads Authority agreement.
The NRA agreement forms a part of the ForCayman Investment Alliance between Dart and the local government.
The negotiations are part of a proposed “third amendment” to the agreement between government and Dart, which was not fully detailed during a Cabinet media briefing Thursday.
However, one key point in the discussions, according to Health Minister Mark Scotland, was the proposed widening of the Esterley Tibbetts between Lawrence Boulevard and the Butterfield roundabout, the old “Harquail Bypass”.
“We’re trying to gain another improvement, which is to widen the section of the Esterley Tibbetts Highway … as everyone is quite aware, there have been several road deaths along that section of the road since the road was opened,” Mr. Scotland said. “It was constructed as … two lanes initially and several years after construction should have been upgraded to a dual-carriage based on the traffic in that area.”
Dart and government officials have previously mentioned that a third amendment to the road closure agreement was being discussed, but never specifically noted the widening of the Esterley Tibbetts in George Town as part of the proposal.
Tourism Minister Cline Glidden, Jr. said that a section of West Bay Road adjacent to Public Beach, that was supposed to have closed by the end of February, hadn’t been closed on schedule because of the negotiations on the third amendment.
“We were expected to be able to have an agreement on the third amendment, but the issues with regard to the third amendment haven’t been sorted out,” Mr. Glidden said. “That was a bit of an expectation gap.”
Mr. Glidden said the closure of the first section of West Bay Road up to Raleigh Quay Road [across from Calico Jack’s] was planned to proceed prior to the official gazettal of the new highway extension being built up to West Bay from the existing endpoint of the Esterley Tibbetts. However, he said the full road closure up to Yacht Drive in West Bay won’t happen until an independent value-for-money review of the entire project is completed by accounting firm PricewaterhouseCoopers.
The 4,290-foot section of West Bay Road is being closed to allow the construction of a four-star hotel on the property of the old Courtyard Marriott, which has been vacant since Hurricane Paloma struck in 2008.
Deputy Premier Rolston Anglin said that talks between Dart and government on the third amendment were still proceeding in “good faith”.
In addition to the hold up with negotiations, Premier Juliana O’Connor-Connolly also noted that a lawsuit had been filed over the road closure by four local residents. However, she said she believed there would be no significant delays caused by the matter, which was under review by the Cayman Islands Legal Department.
Plaintiffs Alice Mae Coe, Annie Multon, Ezmie Smith and Betty Ebanks – who the writ of summons describes as “Caymanians by birth” and current Cayman Islands residents – have asked the Grand Court of the Cayman Islands to stop the transaction and prevent any future transfer of the road until the Court approves.
Issued 25 February, the writ’s defendants are the governor, attorney general, Premier O’Connor-Connolly (as Minister for District Administration, Works, Lands and Agriculture) and the National Roads Authority. Neither the Dart Group nor any of its companies are named as defendants in the lawsuit.
The plaintiffs argue that the December 2011 National Roads Agreement and the way it is being implemented is unlawful.
In a number of ways, the plaintiffs say the defendants are acting contrary to common law, the constitution and the Governor (Vesting of Lands) Law through a lack of transparency and public disclosure.
According to the writ, “[T]he sea view and beach access from the Road utilised by Caymanians and visitors alike is a natural heritage of the Cayman Islands and should be preserved as such”.
The roads agreement calls for the closure of West Bay Road between Yacht Drive and Governors Way. At the south end of the stretch, about 615 feet of road runs between West Bay Public Beach and a portion of Dart-leased Crown land that will be turned into a beach park and handed back over to government.
The remainder of the road to be closed will be added to the parcels of adjacent freehold lots, almost all of which are owned by Dart.
Value for money
The plaintiffs describe the road as “one of the more scenic uninterrupted stretches of beach front road left in the Cayman Islands, and perhaps the last piece of the internationally famous Seven Mile Beach (other than the public beach), encompassing several pedestrian and vehicular access points to the beach and sea, with a spectacular view of the beach, north and south”.
The plaintiffs say they personally have travelled the road for more than 50 years, and that people have been using the corridor “starting with horses and donkeys in the 19th century without interruption”, clearly establishing a prescriptive right of passage.
Because the independent review of the roads agreement has not been shared with the public or introduced to the Legislative Assembly, there is no way of knowing if the roads agreement provides adequate “value for money”, the plaintiffs argue.
According to the writ, “The Plaintiffs understand that the ‘Report’ by PricewaterhouseCoopers was handed to Cabinet and [Dart Realty] on 14 February 2013.”
During a property conference held 28 February, Dart Enterprises Director of Estates Nigel Bates said he understood the report “will be out very shortly”, and that it will settle the issue of whether or not the project provides adequate value for money.
Close to the vest
The plaintiffs argue the government should have to follow the Governor (Vesting of Lands) Law rather than the Roads Law in order to close and vest the road corridor.
A section of the Roads Law enables Cabinet to close any public road and then convert the corridor to Crown land or add it to any private land parcel, as long as it follows the advice of the Roads Authority.
In August 2012, the Roads Authority Board of Directors formally approved a motion to recommend closing the section of West Bay Road and gazetting the Esterley Tibbetts Highway extension.
A different law, the Governor (Vesting of Lands) Law allows the governor or Cabinet to transfer Crown land, but it requires additional measures, including a report outlining the proposed transaction, a government valuation, two independent valuations and advertisements in a newspaper and Cayman Islands Gazette. The minister responsible for lands (i.e. Ms O’Connor-Conolly) introduces the documents to the Legislative Assembly, and gives 21 days for legislators to oppose it.
Further, the plaintiffs argue that a section of the Roads Law instructing Cabinet to act “fairly and justly” means Cabinet should follow the process under the Governor (Vesting of Lands) Law.
According to the plaintiffs, the defendants are “clearly attempting to illegally side step the requirements under the [Governor (Vesting of Lands) Law] under the guise of proceeding with the Agreement under Section 14 of the Roads Law”.
The plaintiffs also ask the court to rule as unconstitutional a section of the Governor (Vesting of Lands) Law that allows Cabinet to waive notice requirements if the Crown land is going to a
statutory authority or government company, or if the transfer is in the public interest.