The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Harbour Island developer says his former $21,000-per month project manager’s “negligence” in failing to obtain key permits has cost him more than $2m and delayed the project by ten months.

Michael Wiener, principal of 4M Harbour Island Ltd, is blaming Bernard Ross, who has a history of convictions and run-ins with law enforcement, for all the woes and ills that have beset his controversial Briland Residences & Marina development over the past year.

The developer’s legal filings with the central California federal court, which have been obtained by Tribune Business, accuse Mr Ross and his wife, Holly, of failing to obtain all the required construction and dredging permits necessary for the multi-million dollar investment.

Mr Ross is also alleged to have failed to obtain an Environmental Management Plan (EMP) for the marina and second home project, and caused its planning approvals to be quashed because he applied to the wrong regulatory agency.

Mr Wiener also claims that the man he once described as his “local representative” in The Bahamas helped create “strong opposition” to Briland Residences & Marina by ignoring the developer’s objections to publishing a site plan showing a canal having been cut into Harbour Island from the sea.

“Mr Ross breached his duty by negligently performing such acts as applying for the site plan for the project, and by publishing the site plan showing the canal,” Mr Wiener and his attorneys blasted. “This publication was done over the objection of the counter-claimant [Mr Wiener].

“As a result of this publication, counter-claimant’s project received strong opposition to its development, which has resulted in the work on the development being stopped since June 2019. As a result of Mr Ross’s negligence and these breaches, the entire project has been delayed more than 10 months and suffered damages as a result thereof in excess of $2m.”

And Mr Wiener also accused Mr Ross and his wife of breaching a previous agreement with him by disclosing details of 4M Harbour Island Ltd’s Heads of Agreement with the Government - a document that he insisted was secret and should not be disclosed.

And he also claimed that one of the couple’s attorneys had provided Bahamian government officials with details of the Briland Residences & Marina project that had never been disclosed by the developer.

“At various dates after June 10, 2019, cross-defendants [the Ross’s]... disclosed and miscommunicated to third parties the contents of a document entitled Heads of Agreement with the Bahamian government, which is not a public document,” Mr Wiener’s legal filings allege.

“Further, cross-defendants other attorney has had communications with government officials concerning details of the development that were not public record.”

The documents do not reveal what these alleged “non-public” details are, but Mr Wiener’s assertion that the Heads of Agreement for his project are supposed to be kept secret may both surprise and cause disquiet among many Bahamians.

There is a strong belief among many Bahamians that Heads of Agreements with foreign investors/developers should be tabled in Parliament in the interests of full transparency and accountability, so that citizens can see what the Government has negotiated on their behalf - especially since these deals involve tax concessions and other national assets, such as land.

However, some observers view Heads of Agreements as a device to enable governments to circumvent parliamentary scrutiny of investment deals. And the Minnis administration has yet to table the agreement for the Briland Residences & Marina.

The wide-ranging allegations against the Ross’s are contained in Mr Wiener’s counter-claim to the lawsuit filed against him by the couple in late 2019. They are accusing the 4M Harbour Island principal of failing to make a combined $1m in payments to them as part of a settlement agreement that would see the couple exit their roles in the project.

Documents attached to Mr Wiener’s counter-claim, which is being vehemently denied, disclose that Mr Ross - who was convicted of heroin possession in the US in 1976, and served a prison sentence - was effectively handed the keys to the project and given wide-ranging responsibilities.

In his role as “development manager”, in which he was joined by his wife, Mr Ross was charged with selecting the project’s architects, engineers and contractors despite the two sides’ acknowledging he had no experience in these areas and was not licensed as such.

Mr Ross was also left to obtain the necessary project permits; approve invoices submitted by all third-party contractors; oversee the preparation of plans and construction documents; and “recommend potential lenders and loan terms for the project”.

In return, he and his wife were paid a monthly fee of $21,333. And, had they obtained all necessary approvals and investment incentives (tax breaks) under the Hotels Encouragement Act and the Family Islands Development Encouragement Act within nine months of signing the agreement with Mr Wiener, they would have been paid a one-off $44,000 “permitting success fee”.

If the Ross’s had seen the project through to completion, and awarding of its occupancy certificate, documents seen by Tribune Business show they would also have been given the opportunity to acquire a unit in Briland Residences & Marina at the cost it took to construct it. To help finance the purchase, Mr Wiener was to have provided them with a 6 percent interest-only mortgage payable over five years.

However, the parties’ relationship seems to have irretrievably soured, and court documents indicate that they are currently heading towards a January 2021 trial in the California courts with multiple as-yet unnamed witnesses coming from The Bahamas.

The dispute between them came to a head in May 2019, when Mr Wiener allegedly sought to terminate their agreement and they argued over the amount of compensation due to the Ross’s. A settlement and release agreement to avoid litigation was agreed one month later but, after making the first payment, the couple alleged that Mr Wiener has subsequently reneged on the deal - something he denies.

An April 15, 2020, court filing summing up the battle, said Mr Wiener had made the “first net payment of $1.319m to the Ross’s last June to settle the dispute over the latter’s “management of a massive real estate development project in The Bahamas”. However, two subsequent payments of $500,000 have not been paid.

4M’s Briland Residences & Marina project has also been subject to Judicial Review challenge in the Bahamian Supreme Court by rival Harbour Island hotelier, Benjamin Simmons, and Briland Island Responsible Development.

Both sides agreed that the site plan approval initially granted for the project should be quashed, having been wrongly granted by the Government’s Town Planning Committee instead of the Harbour Island District Council. Confusion then arose over whether the Council subsequently granted site plan approval, with councillors having voted in favour of doing so but nothing was produced in writing.

Tribune Business reached out to Mr Wiener through his spokesperson for additional comment yesterday, but none was received before press time last night. There are suggestions that construction activity may restart shortly on the project.