By NEIL HARTNELL
Tribune Business Editor
A Harbour Island marina project has been accused of "side stepping" conditions imposed on its activities by submitting two different sets of plans to the central and local government authorities.
Opponents of the controversial 4M Harbour Island Ltd development, in their second legal action challenging the approvals granted for its construction, are alleging that the plans submitted to the Harbour Island District Council to obtain its building permit were not pre-approved by the Bahamas Environment, Science and Technology (BEST) Commission as required by the Government.
Br-island Island Responsible Development (BIRD), in its second Judicial Review action, is also claiming that 4M's marina is larger than the size permitted by BEST and the project's Heads of Agreement that were signed by both developer and government in March 2018.
And it is arguing that continued construction of the marina's steel dock structure breaches a Supreme Court order made by Justice Diane Stewart on October 17, 2019, because this "stayed" all activity until 4M obtained the necessary permits from the proper authority in full compliance with established legal procedures.
Justice Stewart, in a ruling stemming from BIRD's first Judicial Review, had "quashed" the site plan approval and other permits granted to 4M and its developer, California-based attorney, Michael Wiener, after all parties agreed the law required that they be approved by the Harbour Island District Council and not the Town Planning Committee.
BIRD is now arguing that Justice Stewart's order has been violated because 4M did not properly obtain the building permit issued by the Harbour Island District Council on April 21, 2020, while the original approval given for the marina's metal dock structure was quashed by the judge's October 2019 ruling.
The group, which says its members are Harbour Island residents and homeowners, is also alleging that the metal being employed to construct the marina is non-compliant with the project's Environmental Impact Assessment (EIA).
And it claims that 4M is not living up to its own Environmental Management Plan (EMP) by failing to prevent water "turbidity" caused by the dumping of fill material into the marina structure from May 2020.
As a result, BIRD's second Judicial Review is seeking multiple Supreme Court orders and declarations, including that the marina expansion approval and building permit granted by the Harbour Island District Council are "unlawful" on the basis that there was no "proper public consultation" and they fail to comply with the project's Heads of Agreement.
Its June 30, 2020, action also wants the court to halt the marina expansion at 4M's Briland Island Residences and Marina project while declaring that all construction activities since Justice Stewart's October 2019 order are non-compliant with both the EIA and EMP approved by the BEST Commission.
Despite informing a spokesperson for Mr Wiener and 4M about BIRD's second Judicial Review, and seeking the developer's response, no reply to BIRD's allegations was received before press deadline last night.
However, the group, which has been joined in its Judicial Review bid by Harbour Island resident, Ithalia Johnson-Elison, for the first time reveals details of the Heads of Agreement between 4M and the Government - a document that the Minnis administration has yet to make publicly available by tabling it in Parliament.
The "approval in principle", received by 4M's attorney, former financial services minister, Ryan Pinder, on October 6, 2017, conditioned the project's progress on the EIA being approved by the BEST Commission prior to the start of any construction works.
This was captured in the Heads of Agreement, signed on March 14, 2018, which also limited the size of 4M's marina. Specifically, it could not extend more than 50 feet beyond the size of fellow Harbour island marina, Valentine's, using the "mean high water shoreline" as the starting point.
However, BEST, on April 21, 2020 - the same day that the Harbour Island District Council issued 4M's new building permit - wrote to Brenda Colebrooke, director at the department of local government, stating that its approvals "do not capture or speak" to any marina expansion beyond the "50 feet" limit referred to in the Heads of Agreement.
This meant that BEST had not approved the change the Minnis administration made to the 4M Heads of Agreement some two months before, on February 3, 2020, when it informed Mr Pinder that the marina could now extend 75 feet beyond the size of Valentine's marina when measured against the "mean high water shoreline".
Yet the Harbour Island District Council, in announcing that the permit application had been approved on January 13, 2020, said this was conditioned on the preparation of "EIA and EMP addendum" that meet BEST's requirements; another public consultation; and the approvals of all relevant government agencies.
"The size of the structure described in the EIA that was submitted to BEST and approved complies with the limits found in the NEC approval," BIRD alleged. "However, the structure that is currently being constructed does not.
"Critically, the plans that were approved by the Harbour Island District Council in conjunction with the building permit application on April 21, 2020, do not comply with the EIA with respect to the materials proposed to be used or the size of the structure proposed to be built.
"Therefore, it cannot be said that the prerequisite of the National Economic Council (NEC) and the Harbour Island District Council itself for the preparation of an EIA and EMP that meet the requirements of the BEST Commission have been met," the group continued.
"What has transpired is that 4M have submitted one set of plans to BEST for EIA approval and they have submitted a different set of plans to the Harbour Island District Council for construction approval, thus side stepping the requirement of the NEC and the Government of The Bahamas that plans be approved by BEST prior to the commencement of construction."
BIRD said an assessment by Joshua Maxwell, its own engineer and marina consultant, from Turrell, Hall and Associates, had confirmed 4M's marina "greatly exceeded" the size set out in not just the EIA and Heads of Agreement - but also the expansion agreed by the Government on February 3, 2020.
Mr Maxwell alleged that Valentine's marina, which allows vessels to be moored parallel to the dock structure, only extended 270 feet into the bay. But 4M's, he claimed, which is designed to accommodate 200-250 feet mega yachts with their bow pointed out into the bay, "would protrude 1,134 feet into the Bay".
His June 24, 2020, report, added that while Valentine's marina extended 630 linear feet from the mean high water line, 4M's appeared to go out 740 linear feet - "60 feet beyond what was permissible by BEST and 35 feet beyond what was approved by the NEC and Heads of Agreement".
BIRD added: "The events since May 19 have clearly indicated that the developer is not adhering to the terms of the EIA and EMP, and nor is there any intention to adhere to the measurements/size restrictions contained in the EIA and the NEC approval.
"The communications between the applicant's counsel [Gail Lockhart-Charles] and the Harbour Island District Council and the administrator, as well as the Ministry of Works, clearly indicate that although they are aware of the breaches the Harbour Island District Council does not intend to take the necessary action...."