Road seizures still unresolved

Up to a dozen property owners whose land was taken by government during the first phase of construction of the East-West Arterial highway have still not been paid more than seven years later. 

Almost $5 million was doled out to landowners who had property along the route that was taken to make way for the road. 

But those owners who could not agree on a price have faced a lengthy, expensive and, so far, fruitless battle to get what they believe they are owed.  

Currently, 12 of the original 50 compensation claims remain unresolved. 

Government announced last week that it had agreed to a deal with a private developer to build the next 10-mile phase of the eastbound highway – a project that will involve a series of new land grabs along the route.  

Now a surveyor representing some of the original landowners has urged government to clear the backlog and ensure any new cases are dealt with swiftly and fairly. 

Premier Alden McLaughlin acknowledged that the process for resolving disputes over the cost of the seized property had “not moved as quickly as it should”. 

“If there is compensation due, compensation should be paid as quickly as possible. We will have to look at the whole process,” he said at a press briefing this week. 

But both he and infrastructure minister Kurt Tibbetts suggested the new road extension, to be built as part of the Ironwood golf resort development, would add value to people’s land, in many cases by opening up access. The legal principle, known as betterment, means no compensation is paid and has been central to some of the unresolved disputes, with government and landowners at odds over what compensation, if any, is due. 

Figures from the Cayman Islands Lands and Survey department, released to the Compass following an open records request, show that 32 claims for compensation have yet to be settled for land acquisitions on both the East-West Arterial highway and the Esterley Tibbetts Highway projects. 

Michael Treacy, a surveyor from Bould Consulting, which has worked on more than 20 of those cases, said the current system is simply not working. 

He said there is a backlog of cases waiting to be heard by the Roads Assessment Committee, which adjudicates such disputes, and many of his clients had waited years for the right to make their case. 

Government has power under the Roads Law to take people’s land for public interest highway projects. Anyone whose land is affected is entitled to put in a claim for compensation. Surveyors, acting for the Lands and Survey department, then negotiate a fee with the owner, who is entitled to hire his own surveyor at government’s expense. 

When the parties can’t agree, the dispute is referred to the Roads Assessment Committee for resolution. 

According to figures supplied by the Lands and Survey department, there are eight compensation claims, including one for four separate parcels of land, that have been referred to the committee in connection with disputes over land valuations on the first phase of the East-West Arterial road. 

But the committee has met only twice in the seven years since the road was built, says Mr. Treacy. 

On one of those occasions, the committee ruled that government’s offer of $300 to Harold and Abshire Bodden for their 3.3 acre parcel near Hirst Road was too low and ordered nearly $343,000 in compensation be paid to the family. Government has appealed to the Grand Court and the Boddens still have not been paid. 

Several other cases have not yet made it that far.  

Mr. Treacy said government needs either to ensure that the Roads Assessment Committee meets to deal with the backlog or come up with a new arbitration process, such as a lands tribunal mediated by an independent surveyor, to deal with the claims quickly and efficiently. 

He said landowners are losing out through the delays because there is no mechanism in the Roads Law for them to be paid interest that would accrue over the negotiation period. 

“They need to set some dates and hear these cases. Some of them have dragged on for seven years.” 

He said the landowners needed cash up front to pay for lawyers, and even some of the surveyors fees, because those costs are not reimbursed until after a claim was settled. In many cases, he said, clients neither had the stomach nor the wallet for years of protracted negotiation and settled for less than they felt their land was worth.  

He expects that because of the backlog, the same will be true of landowners affected by the new road extension. 

“We are having to say to clients, you can negotiate to a point, but if you can’t agree, it could take seven or eight years to get it resolved.” 

Premier McLaughlin acknowledged that those who accepted the initial valuation got paid far more quickly. 

He said that “budget issues” may have also dragged out the process in recent years and acknowledged, “that’s not fair.” 

Central to many of the disagreements is the principle that a road project on this scale can increase the value of the remaining land to such an extent that no compensation is owed for the land acquired. 

Mr. Tibbetts claimed that government had, in the past, bowed to political pressure and paid people for land, when in fact it was not legally required to do so. 

He said the current budget situation means that might not be the case with the new highway extension. 

“You have to be mindful of the fact that if the property’s value is enhanced by the compulsory acquisition and the building of a road, the law clearly states there should be no compensation.” 

He said that in many cases the assessors were in agreement over the valuation of the land, with only a few cases in dispute. 

Mr. Treacy said there were legitimate cases where the building of the road opened up access to previously “landlocked property” and the commercial value of the land increased.  

He added: “In a lot of these cases, the land already has sufficient road access and is zoned residential. So the value of a two- or three-lane highway through the land is debatable. If it was zoned commercial, maybe you could make that argument, but for residential land the noise and traffic nuisance of a major road would be more relevant considerations.” 

In the case of the Boddens, the Roads Assessment Committee ruled that the road, which dissects their land, diminished the value of the remaining property, rather than adding to it as government had argued. 

There were a total of 81 parcels affected by the first phase of the the East-West Arterial highway. Among those, 50 claims for compensation were received, and so far 38 have been settled at a cost of $4,866,072, according to figures released under the Freedom of Information Law. 

The remaining claims are going through arbitration. During phase two of the construction of the Easterly Tibbetts Highway in 2006, from the Hyatt to Lime Tree Bay, 33 parcels were affected and 21 compensation claims filed. Of those, six remain unresolved, including four owned by the Hyatt. Phase three of the same road development, later in 2006, affected 43 parcels leading to 28 compensation claims. Of those, 14 – including eight from a single applicant – have yet to be resolved. So far, just over $3.4 million has been paid out in compensation on those two phases of the Easterly Tibbetts Highway. 

Uche Obi, senior valuation officer for Lands and Survey, said its assessments of the loss suffered by claimants was always “fair and reasonable” and in accordance with the statutory provisions.