Published On: Wed, Aug 28th, 2019

Time for appropriate action

Hilbert HaarBy Hilbert Haar

Giving back Mullet Bay to the people – the lofty objective behind MP Rolando Brison’s proposal for a parliamentary inquiry into the state of affairs with the location of the former Mullet Bay Resort – is not going to be a walk in the park.

Brison’s proposal puts Mullet Bay in the spotlights and that is of course a good thing. But how are you going to “give it back to the people?” There are two options: buy it or expropriate it – and they both look easier than they really are.

The property’s ownership is no mystery: it belongs to Hushang Ansary’s Sun Resorts. Ansary, a by now 93-year old Iranian-American businessman (on January 1, 2020 he turns 94) has been hanging on to Mullet Bay since Hurricane Luis destroyed the Mullet Bay Resort in 1995, Maybe the question is not whether he finally wants to get rid of it; the question is: at what price.

Mullet Bay is listed in the books of insurance company ENNIA for 771 million guilders – close to $431 million. A recent appraisal by the Central Bank put that value much lower: at 79 million guilders – $49.7 million. I can already smell which way negotiations are heading in case Ansary is willing to sell. The owner will stick to the value in Ennia’s books, the prospective buyer (country St. Maarten) will go for the Central Bank appraisal and there is no chance in hell that the two will meet somewhere in the middle (around $200 million). For Ansary that’s not enough and for St. Maarten it’s way too much. Financial supervisor Cft will never allow loans for this purpose without an immediate perspective on a healthy return on investment.

Brison’s proposal also mentions the option of expropriation – a procedure for the state to get it hands on the property of an owner who is unwilling to sell – or unwilling to sell at a market-conform price. It is for sure an interesting thought, but is it feasible?

Dutch law says that expropriation only takes place in cases where it serves the general interest. Examples of general interest mentioned in the law are the construction of public works – like roads, railroads, waterways or dikes. Under general interest the law also understands protection against imminent danger (like wars, floods, fire or pollution), urban planning, public housing, urban renewal and land restructuring.

While the general interest-requirement has been deleted from Dutch law, this provision still exists in St. Maarten’s constitution. Article 15.2 of the constitution reads: “No person may be deprived of their possessions, other than if it is declared in a national ordinance that expropriation is required by the general interest and prior full compensation should be enjoyed or assured, in accordance with regulations to be laid down by or pursuant to national ordinance.”

Article 15.3 states that the general interest-requirement only lapses only “if expropriation is required in an emergency.”

It is hard to imagine how expropriating Mullet Bay could be based on an emergency, given the fact that the property has been in limbo since Hurricane Luis in 1995.

What remains is the argument of general interest. The way I understand the law the government would have to show what it wants to do with the property. Saying that it will be made available for development to third parties is most likely not sufficient: there has to be a plan. Even better: the owner has the right to self-realization. In other words: if the owner proves that he is able to realize the development the government has in mind expropriation is not even an option.

Does all this mean that giving Mullet Bay back to the people is a mission impossible? Certainly not, but there are plenty of hurdles on the way towards achieving this goal.

Politicians are quite fond of the expression “the way forward.” It certainly applies to the Mullet Bay-issue. How will St. Maarten move on – with or without a parliamentary inquiry – and what will the end result be? There is plenty to think about but after almost a quarter of a century without any meaningful development it is time for – appropriate – action.

Mullet Bay golf course terrain

Photo caption: Golf course on the Mullet Bay property owned by Hushang Ansary’s Sun Resorts. File photo.

Related articles:
Ownership Mullet Bay property may be illegal
MP Rolando Brison refutes legal review of his inquiry-proposal by Dutch attorney
Editorial: “Mullet Bay to take center stage
Inquiry-proposal fully misses the point” says Dutch civil law attorney
MP Rolando Brison submits proposal for Parliamentary inquiry into Mullet Bay
Mullet Bay Parliamentary Inquiry proposal – full document
Video recording of MP Rolando Brison on Mullet Bay

[Publisher’s Note: StMaartenNews.com intends to seek the opinion of other legal minds on St. Maarten on the topic of the Mullet Bay parliamentary inquiry. This is the first time in our country’s history that such an instrument is being used and it will be very interesting to read what others have to say on this topic.]