The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Cabinet minster is pledging to “hold” Baha Mar to its undertaking after construction work related to the $700m resort expansion launched despite an active and ongoing challenge to the project’s planning approvals.

Damian Gomez KC, ex-minister of state for legal affairs in the last Christie administration, told Tribune Business he plans to “check” whether the Cable Beach mega resort developer has breached a pledge given to the Subdivision and Development Appeal Board by its attorneys last Tuesday.

Graham, Thompson & Company promised that no construction work or activity would occur before the outcome of the bid by Mr Gomez’s client, who is Richard Demeritte, The Bahamas’ first auditor-general, to overturn the preliminary site plan approval granted by the Town Planning Committee for the Melia Nassau Beach Resort’s 20-storey replacement.

However, at the following day’s ground-breaking ceremony for the development, featuring Prime Minister Philip Davis KC and other Cabinet ministers, it was said that construction work on the project would begin on Thursday - the very next day.

Legal sources, speaking on condition of anonymity, are questioning whether this not only represents a breach of the Appeal Board undertaking but also a violation of the Planning and Subdivision Act’s section 65. “It’s distasteful to have a ground-breaking when there’s an appeal going on,” one contact argued.

That section deals with the planning appeals process before the Subdivision and Development Appeal Board. This newspaper was advised that section 65 stipulates that an active appeal effectively acts as a ‘stay’ for any development project - meaning construction work cannot take place until the matter is heard and determined by the Board in the developer’s favour.

But Robert Sands, Baha Mar’s senior vice-president of government and external affairs, told Tribune Business that construction work to-date only involves the $700m project’s seawall component. He asserted that this is not covered by, and is separate and apart, from the appeal now before the Subdivision and Development which is only concerned with construction of the new hotel itself.

“The seawall, the first phase, started yesterday,” Mr Sands said on Friday. “They are two separate issues. That application was in prior to the site plan approval - that aspect of the construction of the hotel.”

Asserting that observers were “mixing up two different issues”, he added: “There is an appeal that has been put forward but that is an appeal against the construction of the hotel… I would simply state that, as mentioned during the ground-breaking, that’s [the seawall] separate and apart from the construction of the hotel.”

Mr Gomez, in reply, acknowledged that Mr Sands may be correct but promised to look into the matter. “If they’ve breached the undertaking that they gave the Board when we were there that they will not do anything besides the ground-breaking ceremony, I’ll make a complaint to the Board,” he told Tribune Business.

“I’ll have to look at it again. He may be right. I’m not sure. I’m going to check it… The appeal, under the statute, operates as a stay. They [Graham, Thompson on Baha Mar’s behalf] told them they would abide by the outcome of the appeal and nothing would happen other than the ceremony. That’s a matter of record. The proceedings were recorded. That could be a fairly serious breach of representation. I will hold them to that” undertaking.

Tribune Business sources confirmed that the Subdivision and Development Appeal Board held a preliminary hearing on Mr Demeritte’s challenge last Tuesday - one day before the official ground-breaking. The Board, after determining the identities of the parties involved, ordered that the hearing record be prepared and submissions from both sides sent in.

A date for the substantive hearing of the appeal on its merits was set down for March 2026. Given the concerns and opposition voiced at the Town Planning Committee hearing by Cable Beach residents living close to the development site, it is thought that others may join Mr Demeritte in mounting an appeal, and the Board also ordered that they submit their arguments prior to the March hearing.

Dawson Malone, the Appeal Board’s chairman, confirmed to Tribune Business: “There was a preliminary hearing on the appeal on Tuesday past, and directions were set down for a substantive hearing in March on a date that was convenient to the attorneys.”

Mr Gomez, meanwhile, told Tribune Business that his clients are challenging the Town Planning Committee approvals on the basis of procedural fairness and “irrationality”. He added that they fear their property values will be undermined if Baha Mar places generators and other ‘back of house’ equipment in close proximity to their residences, and feel their legitimate concerns have been ignored “by the speed at which this is being pursued”.

The ex-Cabinet minister and his client are now waiting to obtain all the documents within the Department of Physical Planning’s files upon which the Town Planning Committee relied to reach their approval decision. “We are waiting for the documents to be delivered to us; that’s one of the Orders that the Appeal Board gave,” Mr Gomez said.

“Our objections were, quite simply, that it’s very difficult to tell from the resolution that they passed what they relied on to come to the decision that they have come to, and that’s a breach of the procedure of fairness. Secondly, and in any event, it was irrational because Mr Demeritte had filed some ten or so objections spanning a number of pages, and they didn’t address any of the points which he raised. He was not alone in raising those points.”

With his client and others fearing their concerns have been sidelined and neglected amid the rush to provide Baha Mar with its necessary approvals, and generate construction jobs prior to a general election, Mr Gomez said: “They are afraid that their property values are going to be completely messed up. It’s not the last time it has adversely affected them, and they are a bit offended by the speed at which this being pursued without, it appears, having any regard for their interests.

“They live right next door to the site; Ruby Avenue. They are right at the entrance of Ruby Avenue and West Bay Street.” Mr Gomez said long-time residents had previously been affected by an underground fuel leak that had to be addressed as part of the deal that saw Baha Mar’s original developer, Sarkis Izmirlian, acquire the former Radisson, Wyndham and Nassau Beach Hotels from the Government and Philip Ruffin.

“Bear in mind these people have already suffered from having fuel leaked into the ground causing noxious fumes in their property,” he added. “They had a fuel leak there that had been caused by one of the hotels. It had essentially polluted the water table and you could actually smell the fuel in their homes. It took a number of years to get that cleaned up.

“Now, here it is, without giving an explanation as to what’s going to be done on the property, they just say they are going to have a back-up thing there without any indication of the dangers it poses to the community. They [residents] were looking for details and asking the Committee to put in types of protection for them. It’a serious issue.

“One would think the Committee would say something that at least would give people confidence their affairs are being addressed. Historically, they’ve [Baha Mar] done their back door thing elsewhere well away from subdivisions and public activities. In this instance, the question is why are you departing from historical traditions,” Mr Gomez said.

“I’m going to fight for them. I’m working on the disclosure to see what is being said. We’re supposed to get the documents that are on file before the Town Planning Committee so we can review it and take advice from experts and respond. Part of the job of a country lawyer is to fight for the country.”

The Town Planning Committee’s public hearing saw residents voice concerns about the noise, safety and impact on their daily lives from Baha Mar’s expansion. Damien Francis argued that the area was historically a buffer zone, and questioned how the new service building would affect adjacent residential properties. 

“It’s difficult to understand what services are actually going in and how that will impact our properties,” said Mr Francis at that hearing. He suggested that a sound-attenuating fence would be more effective than the proposed landscaping in minimising the impact, adding that the current fences on both properties are down thereby leaving the area exposed.

Leslie Munnings also voiced strong opposition to the location directly behind his home. He argued that the service building should instead occupy an existing industrial site, pointing to concerns about the proximity to where his children play, potential noise from generators and past water table contamination. 

Graeme Davis, president of Baha Mar, assured residents that the resort owner is committed to addressing their concerns, promising: “We can make the commitment that we'll have a solid boundary in that space.”

Brent Creary, principal of ArchVenture and the project’s architect, responded that the service building - intended to support the new hotel with utilities, fuel and water storage, cooling towers, and standby generators - has been designed to match the scale of nearby commercial properties. 

“We have pushed the building east to increase distance from the residences, and are using heavy landscaping to create a visual and sound buffer,” said Mr Creary. He added that the generators, the only major source of noise, will be fully enclosed with acoustical engineers ensuring that noise levels remain comparable to street traffic.