Activists re-visit controversial planning cases

THURSDAY, DEC. 15: The Bermuda Environmental Sustainability Taskforce (BEST) is concerned that the public is being led to believe there was nothing wrong with the November appeal decisions made by former Environment Minister Walter Roban in the Development Applications Board (DAB) decision appeals requested by Health Minister Zane DeSilva (trading as ZanZara Trust) and Tourism Minister Wayne Furbert (trading as Cyrus Trust).

It is our considered opinion that both applications, Mr. DeSilva’s and Mr. Furbert’s, were flawed and deficient as submitted, and should have been denied a decision by the DAB. There would then have been no decisions to appeal.

This press release will:

1) provide some background information

2) set out why the decisions were flawed

3) expose the fallacy of “stringent conditions”

4) set out why we are releasing this press statement at this time, and

5) issue our recommendations for what should happen next.

1) Background

a) It is on record that both Mr. DeSilva and Mr. Furbert attempted to have land they wish to develop re-zoned via the Bermuda Plan 2008 Tribunal process. Mr. DeSilva’s attempt was refused; Mr. Furbert withdrew his attempt — it would undoubtedly also have been refused.

b) Both applications for development contained fatal flaws:

            i) both applied for development that could not be permitted on land with the existing zoning protections — protections affirmed by the Bermuda Plan 2008 Tribunal, by the environment Minister and by Parliament.

            ii) both contained inaccurate or misleading information

            iii) both DID NOT contain required information.

c) For these and other reasons these applications were refused by the DAB.

2) The applications were incomplete and flawed  — the process was subverted

At this point, the application process should have been suspended. We believe that the DAB was obligated to NOT render a decision until ALL information requirements had been met, and ALL discrepancies and/or inaccuracies had been corrected. [As an aside, far too many complaints about the length of time the process takes are linked to applicants failing to provide necessary or accurate information in a timely fashion.]

a) Examples of incompleteness

i) Mr. Furbert’s application:

            * The site plan was missing information about structures on the site.

ii) Mr. DeSilva’s application:

            * A Traffic Impact Assessment requested by the Highways Operations Division of the Ministry of Public Works/Engineering, and necessary prior to in-principle assessment, was not submitted.

b) Examples of incorrect or misleading information

i) Mr. Furbert’s application:

            * “The application as submitted is misleading as the site plan DOES NOT show the substantial residential and other structures currently existing on this lot ... giv[ing] the impression the lot is vacant.” – Department of Conservation Services

ii) Mr. DeSilva’s application:

            * There were discrepancies between the application and the site plan.

The Minister should have refused to consider the Zanzara Appeal

The Minister was alerted that the previous step in the process had not been completed. From reading the DAB decision, he would have been alerted that vital and required information was missing, that incorrect and even misleading information had been submitted.

From reading the DAB decision and the Independent Inspector’s analysis, Minister Roban would have known that the previous stage had been subverted in that the submissions of Messrs. Furbert and DeSilva withheld vital information and included incorrect or misleading information.

The Minister should not even entertain an appeal request until all previous stages have been methodically completed.

3) The “Conditions” fallacy (ZanZara Appeal)

Much has been made of the so-called “stringent conditions” attached to the ZanZara appeal decision. We note that in certain cases the DOP has assembled a list of conditions, prior to the appeal even being heard, based on an assumption that the appeal will be granted. Ministers have then used those prior-crafted conditions as a rationale for upholding the appeal as though a list of what-if conditions are an acceptable substitute for overturned zoning restrictions, negative evaluations from government advisory agencies and even the considered disapproving opinion of the Independent Inspector.

The facts are that another, prior set of “conditions” existed, before the application even reached the appeal stage. These conditions (and we will come to them shortly) — as stringent as law, policy and practice could make them — were nevertheless NOT MET. Incidentally, all persons submitting applications are required to meet these conditions.

It makes no sense to justify the overthrow of pre-existing conditions with a vague promise that the next set of conditions can be upheld. In any case, in the same way that all conditions that should have disallowed the applications were NOT met, yet the Minister allowed the application on appeal, the next set of conditions could also be overthrown via further appeal to the Minister.

The Minister, in giving his written reasons for upholding the appeal, dismisses these earlier stringent conditions without even mentioning them. He then issues an assurance of sorts that the next set of conditions will be upheld — an assurance difficult to believe and not possible to insure.

Let’s look at these prior “stringent conditions” that were not met:

Condition #1: The applicant must provide basic information to enable effective and complete assessment of the application. This condition was not met.

To quote from the Independent Inspector’s report: “... effective or complete evaluation of the proposal proved difficult because so much basic information was missing from the application. Indeed, even for an in-principle application, in the opinion of technical officers the proposal does not provide sufficient information to adequately assess the likely impacts on the natural and built environment or the roadway system surrounding the site.”[emphasis added].

Condition #2: The proposal must conform to the provisions, objectives and purposes of the relevant rules and procedures. This condition was not met.

The DAB pointed out that “The proposal fails to conform with the provisions of the Development and Planning (Application Procedure) Rules in that insufficient information has been submitted to enable a full and proper assessment of the proposal to be undertaken.[emphasis added]

To further quote the DAB: “The application does not meet the standards by which the Board can approve changes to nonconforming development.[emphasis added]

And further from the DAB: “The proposed development is contrary to the purposes and objectives of ... the Bermuda Plan 2008. (For the public’s information, this Plan was endorsed by the Environment Minister and debated and approved by Parliament.)[emphasis added]

Condition #3: The applicant must provide accurate and truthful information to support the application. This condition was not met.

Again quoting from the Independent Inspector’s Report: “There also appear to be significant discrepancies between the application and the site plan. As an example, the Department of Conservation Services (DSC) commented “... the site plan provides minimal information and evident inconsistencies such that the DSC is unable to make a realistic analysis or provide useful comments”[emphasis added]

Condition #4: The applicant should respond to points raised in objection to the application. This condition was not met.

Again from the Independent Inspector’s Report: “The [objections] were forwarded to the applicant but there was no response to any of the objections.”[emphasis added]

Condition #5: If a proposal departs radically from “prevailing planning protocols” the applicant must make a strong case to justify approval. This condition was not met.

Again from the Independent Inspector — his concluding statement: “Given the paucity and inadequacy of information that accompanied the original application, and an appeal case which neither addresses the areas of concern raised by the Development Applications Board nor attempts to make the case for such as significant departure from prevailing planning protocols for this locality, I have no option but to recommend that the appeal be dismissed.”[emphasis added]

It is these, prior, stringent conditions that must be first upheld before any later and lesser conditions are even considered.

The DAB is a statutory body with statutory responsibilities and legislative authority. This Board must not be pressured or feel pressured from within or from outside to render premature decisions — that is, to make a decision on a flawed application: one that contains inadequate, incorrect or misleading information. Neither must the Board feel pressured to provide conditions whose existence and content is then used as justification for overthrowing the Board’s considered decision.

The question begging for answer is why would a Minister even choose to hear an appeal to a case that was procedurally incomplete. In both these cases the DAB decisions were testaments to the Board’s being given incomplete and inaccurate information, Thus, by the very act of agreeing to entertain an appeal, the Minister is tacitly endorsing the ill-conduct of the applicants and approving of their breaking of the rules. In our view, this amounts to an abuse of Ministerial discretion.

4) Why we are raising this issue

In anticipation of questions as to why we are raising the issue at this time, there are several reasons:

a) The new Environment Minister Marc Bean has stated he will be revisiting and reviewing both these cases and we wish to urge that he not take on the appeal phase of the applications until the applicants have met the requests and requirements for complete and accurate information necessary for a proper consideration at the DAB phase of the process.

b) We wish to alert the public to be vigilant during the holiday season as some developers attempt to take advantage of this busy season to make their applications hoping to skate by without notice because everyone is so busy. With this in mind: while we cannot comment on his motives or his skills in arranging such fortuitous timing, we must note that Mr. Furbert’s application, in addition to being scant on details, was published in the Official Gazette on 24 December 2010, that is, on Christmas Eve when most people are far too caught up in the festivities to pay much attention.

c) Former Environment Minister Roban himself stressed in a public statement that it was not the decisions that prompted his resignation but rather the public attention to his decisions. In other words, had his decisions escaped public scrutiny, he would have stood by them. We thought it important to bring to public attention why the appeal decisions were flawed.

5) What should happen now

In both cases, the applicants should be apprised:

a) that their applications need to be adequately and accurately informed so that the DAB and other relevant agencies can perform their duties effectively and completely.

b) that their appeals to the Minister were premature and will not be heard until the DAB process is fully completed.

c) in Mr. Furbert’s case, the application should be re-advertised. The advertisement should include enough detail so that nearby residents AND other stakeholders can know the full spectrum of what is being applied for.

Finally, we would welcome a statement from the Environment Minister advising applicants that the rules of applications for development are there for the benefit of the public and that it is improper for applicants to assume that they can bypass the vitally important DAB phase of the process by either withholding information or submitting inaccurate or false information.