Island Council rejects
Divi’s $44.5M claim
Resort claimed damages for ‘loss’ of Fort Amsterdam peninsula
PHILIPSBURG--The Island Council unanimously approved a proposal on Monday to reject a US $44.5 million damages claim by Fort Amsterdam Beach Club, better known as Divi Resorts.
The Executive Council had requested the Island Council to reject the multi-million-dollar claim for compensation by Divi Resorts, to go along with the advice by the Committee of Experts of Spatial Planning and take into consideration the legal opinion of the law firm Van Eps, Kunneman & Van Doorne.
Divi Resorts wants to further develop the Fort Amsterdam peninsula, but is restricted by government’s zoning plan which declared the historic Fort Amsterdam a conservation area. The fort played an important role in the defence of St. Maarten in the 1600s when the island was ruled by the Spanish and Dutch.
Commissioner Roy Marlin explained that government had prepared a resolution and a draft zoning plan for Fort Amsterdam in 1998. Public consultation started to designate the peninsula as a protected site, a conservation zone, meaning that only development that included the objective to protect the property’s historical value would be allowed.
Divi objected to the draft zoning plan, but its objections were rejected and the plan was approved by the Island Council in 1999. Divi appealed the decision to the Governor of the Netherlands Antilles, who rejected the appeal in January 2002. Divi appealed this decision too.
Divi declared victory in January 2003 when the Court of First Instance considered Divi’s objections well-founded and ruled that the decision by the Island Council was unfounded, mainly because Divi’s interest had not been taken sufficiently into consideration. The Island Council was ordered to take a new decision on Divi’s appeal.
The Island Territory appealed the Court’s decision. This time it was a victory for the Island Territory. The Court decided in May 2005 that the objective to conserve the area was legitimate and valid. The Court ruled that the correct procedure had been followed and that sufficient consideration had been given to Divi’s interest.
Based on the law, Divi submitted a claim of some US $44.5 million in September 2005. The claim consisted of three components: compensation for depreciation in value of the real property, loss of profit, and advisory and legal expenses. The loss of profit made up the largest chunk of the claim: US $40.9 million.
The claim was sent to the Committee of Experts for its advice and to the law offices Van Eps, Kunneman and Van Doorne. Both found that Divi had sufficient basis to anticipate that the Island Territory might adapt its policy to protect the area and that Divi Resorts hadn’t taken sufficiently into account the risks that went along with ownership of such a property.
Negotiations in the past few years to persuade Divi to sell the property back to government yielded no result. Marlin explained that Divi wanted to receive US $22 million, which government considered too high. Government had set the value at US $4.9 million.
Marlin said the government that sold the property in 1969 for NAf. 500,000 had had a different vision and should not be criticised for taking that decision. At that time the priorities were different. People were leaving St. Maarten’s shores to work elsewhere. Jobs needed to be created. St. Maarten was not very developed at that time and Philipsburg was full of old buildings. It was a time when there was not so much awareness of the value of heritage and protection of monuments, said Marlin.
The 1999 zoning plan does not exclude all development, but limits it, explained Democratic Party Councilwoman Maria Buncamper-Molanus. She said any development and commercial exploitation had to be done according to strict guidelines.
She explained that when Divi had purchased the property in 1987, the resort had not purchased just the land on which the fort is located, but a lot more property adjacent to the fort which Divi had exploited and built on. Not all possible development has yet been made use of, so there is no ground for compensation for loss of profit, according to a legal advice.
Buncamper-Molanus stated that the Island Government had consistently made it clear in writing to the resort owners that the property in question was and is to be designated as a monument with historical interest.
The Committee of Experts is of the opinion that Divi should not be compensated for damages because when Divi purchased the property it could have had the expectation that its request to develop the property would be declined. Archaeological research of the area was done in 1987. It has recently been discovered that the peninsula is a breeding place for St. Maarten’s national bird, the pelican.
Buncamper-Molanus made a plea for balanced development. “We should be balancing economic development and environment. It is in Divi’s interest to support sustainable development,” she said. She expressed the wish that when the Island Council approved the proposal, government and Divi would sit around the table and solve this in an amicable way. She posed a number of questions.
Her colleagues Frans Richardson of National Alliance (NA) and Gracita Arrindell of People’s Progressive Alliance (PPA) also posed questions.
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