A legal challenge to the closure of part of West Bay Road has failed because it was not filed in time.
Four West Bay women had claimed the deal to close the road, easing the way for Dart Realty to build a new hotel on Seven Mile Beach, violated their constitutional rights.
They argued that the people of the Cayman Islands enjoyed a “common law” right of way over the road and its many access points to the beach, which they said had been used by Caymanians for more than 50 years.
The merits of their argument were not considered by Justice Alexander Henderson, who ruled that the action had not been brought within the legally mandated time frame of 12 months from when the initial decision was taken.
In his judgment, published Thursday, he wrote: “This challenge to the decision to close the affected road is brought too late to be considered on its merits.”
He ruled that the decision was officially taken on Dec. 15, 2011, with the signing of the National Roads Authority agreement, the first official commitment between government and the developer to close the road.
Lawyers for the four women, calling themselves the Concerned Citizens Group, had argued that the decision had been officially taken on March 13, 2013, when a notice of the road closure was published in the official Gazette.
If that contention had been accepted, the judge would have been legally able to consider their claims.
Justice Henderson wrote, “Given the widespread publicity about the intended road closure throughout 2011, the Gazette notice in this case amounts to nothing more than compliance with a legal formality.” He added that the women had been “well informed” about the decision and had all the information to bring their claim in December 2011.
“There is nothing before me which justifies or even explains the 14 month delay before this action was started,” the judge said in his ruling.
He concluded that the action was barred by the “limitation period” and therefore had to be dismissed.
In his summary of the evidence, Justice Henderson, pointed out that Dart Realty, listed as a defendant in the case, along with the governor, the attorney general, the Ministry of Works and the National Roads Authority, had already spent considerable amounts of money fulfilling its side of the agreement.
The contested agreement between government and Dart, known as the ForCayman Investment Alliance, has already led to the extension of the Esterley Tibbetts Highway into West Bay. Construction has begun on a new hotel on the site of the former Courtyard Marriott, which will be managed by San Francisco chain Kimpton.
Plans for the $200 million 265-room hotel and condo development suggest developers have taken advantage of the road closure to set the hotel well back from the coastline and include a rooftop bar with 360-degree views of the ocean.
One concern, expressed in the court action, centered on the potential loss of public access to a large part of Seven Mile Beach.
Responding to the legal challenge outcome, Mark VanDevelde, CEO of Dart Enterprises, said, “We welcome the court’s decision and look forward to continuing to fulfill our obligations under the NRA Agreement.”
Dart has said its development will feature a network of public walkways and cycle paths ensuring easy access to the beach, but the women argued that there would be some loss of access.
So far, only a portion of the road, approximately 1,600 feet, has been formally closed, to facilitate work on the hotel. The second phase of the agreement will extend the portion of road closed, between Raleigh Quay and Yacht Drive, to roughly 3,900 feet – about six-tenths of a mile.