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Judge orders Rainbow, Sabra N.V. to pay damages to apartment owners

~ In violation of planning permit and sales agreement ~

PHILIPSBURG--The Court of First Instance of St. Maarten has ruled in favour of the Rainbow Beach Club apartment owners, and has ordered Rainbow to pay damages on grounds that the building in which the apartment owners reside was built in conflict with the building and planning permit and in violation of the sales and purchase agreement that was signed by the parties.

The developer of the project, Sabra N.V., was also deemed liable for damages. Attorney Michiel Noordhoek of law firm HBN Law, which represented the owners, explained that the planning permit stipulates that if a building is equipped with an elevator, the maximum number of floors allowed is four, and if no elevator is present, the maximum number of floors allowed is three.

Noordhoek explained that the buildings at Rainbow are much higher than what was allowed in the planning permit and this has been confirmed in the judgments. The West and South Building have five to six floors, the Tennis Building has at least six floors, and the Tower Building has eight floors with roof top units. This means that all together more than 80 apartments in the Rainbow Beach Club are built in conflict with the planning permit.

Noordhoek further explained that when the owners purchased their units, they trusted that the building would be no higher than four floors, as stipulated in the sale brochures of the project. Additionally, Noordhoek also explained that the court rendered its verdict on damages based on the poor state of the buildings, which had walls filled with mould, cracks, a failing drainage system and other aspects that were also deemed in violation of the sales and purchase agreement.

Attorney for Rainbow Beach Club Mark Kortenoever of law firm Lexwell said his client will appeal the decision based on "irregular arguments" within the judgment. He said the way the judge established certain facts as they relate to construction deficiencies will be challenged. He also contended that the judge did not motivate the decision sufficiently, did not conduct any site visits and didn't call any witnesses or hear any expert testimony.

"In our opinion the conclusion cannot be supported by what was presented in court," Kortenover said, adding that his client's position is that the subdivision permit is not relevant considering the zoning for the area, which allowed much higher buildings to be built in the general area, such as The Cliffs and Blue Mall, both of which are higher than Rainbow.

When asked what his position was on owners who contended that the two high buildings were constructed after Rainbow had built and their purchase agreements had been signed, Kortenoever said, "The judge didn't make a ruling on whether or not there were any expectations regarding the number of floors when they signed it.

"The judge said because of the conflicts in the planning permit, this was enough to rule in favour of the claim for damages. Our argument on the damages claims because of the height of the building is this: if you are a neighbour in an adjoining project, then you may have an issue if your neighbour's project has more floors, but if you are in the project itself you cannot say suffer damages because of violation of the planning permit," Kortenoever said.

The amount of damages to be paid by Rainbow and Sabra N.V. will be established in separate proceedings.

Businessman shot by robbers dies

PHILIPSBURG--The businessman who was shot by robbers at his Back Street store Wednesday evening died at St. Maarten Medical Center (SMMC) Thursday night.

The Mark Deygoo (34) of Baby and Kids was the third shooting victim and the second homicide victim this week. By this newspaper's count, he also has become St. Maarten's 13th homicide victim for this year.

The Guyanese businessman and long-time St. Maarten resident reportedly was shot five times – including twice to the head – after two robbers, at least one armed with a gun, entered his store around 6:40pm Thursday and demanded cash.

He was rushed to SMMC, but doctors there held out little hope for his survival. Family members were informed that he was brain-dead and that he had been placed on life support. They also were advised against flying him overseas.

Reports from SMMC said the life support had been removed yesterday afternoon and he had died last night.

Several of Deygoo's family members and friends spent most of the day Thursday at the hospital and his wife, who was also present during the robbery, remained by her husband's side.

The police reportedly had made little progress with their investigations up to late Thursday and no one had been arrested for this latest homicide

The two robbers fled the scene of the shooting on foot and reportedly took with them money from the cash register and several items, including a BlackBerry cellular phone and a laptop computer.

The Guyanese national is the third shooting victim this week.

Ophelia forecast to weaken, to pass well north on Sunday

page11a109PHILIPSBURG--Tropical Storm Ophelia is expected to pass more than 200 miles from St. Maarten on Sunday, while remaining in the Atlantic Ocean based on the forecast track of the Miami based National Hurricane Center. The storm is also forecast to weaken and is also disorganized.

Ophelia, the 15th storm of the Atlantic Season, was located some 800 miles from the Lesser Antilles on Thursday afternoon, according to the Office of Disaster Management (ODM). The storm is moving around 13 miles per hour with wind speeds of 65 miles per hour on a westerly track with an expected turn to the west northwest on Friday. Wind speeds on Thursday were at 65 miles per hour.

ODM will continue to closely monitor the progress of Ophelia until it clears the local area.

Three kidnappers get lengthy jail sentences

PHILIPSBURG--Three men were sentenced Wednesday to prison sentences of 14 years and six months, 11 years and six years, two of which were suspended, on three years' probation for involvement in the kidnapping and torture of a resident of the Cay Hill area last December, and another man in Pelican in January.

Isidro E. Josepha (27), who is considered the leader of the operation, received the highest sentence of 14 years and six months, while Roberto F. Gumbs (36) was sentenced according to the Prosecutor's demand to 11 years. Jeannot Sanon (22) received the lightest sentence of six years, two of which were suspended, on three years' probation.

On September 7, kidnapper James H. Hodge (33) was already sentenced to 30 months, 18 months of which were suspended, on two years' probation, for his role in the kidnapping together with five others of Israeli national N.O.W. Awad on December 16, 2010.

Awad was held at a location in Middle Region for 24 hours, during which he was beaten and burnt with cigarettes and an iron. He managed to escape from his kidnappers when, while riding in a vehicle, a traffic back-up in front of ACE Home Centre in Cay Hill presented him an opportunity to jump out the vehicle and run for cover inside ACE. He hid in the establishment, while police were summoned.

In March 2007, the Court in First Instance sentenced Awad together with six other suspects to 48 months for his role in a drugs smuggling ring that used cruise ship Mariner of the Seas to transport marijuana from Jamaica to St. Maarten, and cocaine from St. Maarten to the United States. The kidnapping is believed to be related to this operation.

During the hostage the group of abductors went to the man's house and stole electronics and other items.

Gumbs, Josepha and Sanon were also found guilty of involvement in the January 3 attempted abduction of R.L. Murray in Pelican. Murray managed to escape from his foes while gunshots were fired at him in the parking lot of Flamingo hotel.

During the court hearing of August 31, Prosecutor Bart den Hartigh had demanded 15 years for Josepha, 11 years for Gumbs and six years for Sanon.

Judge Monique Keppels granted Josepha a six months' reduction on his sentence, because he has spent six weeks too long in a police cell during his pre-trial detention.

GEBE gets no instruction to implement new tariff

PHILIPSBURG--Two weeks after Minister of Economic Affairs Franklin Meyers announced that government would instruct GEBE "this week" (as in two weeks ago) to implement a particular tariff instead of the tariff that government gave GEBE conditional permission to implement on August 1, the company has reportedly not received any such instruction.

After acknowledging that GEBE's new tariff structure had not provided relief from high utility bills, Meyers said government would issue the instruction based on what he called "international norms," not on any study by government or the Economic Affairs Department.

On Wednesday, Deputy Prime Minister Theo Heyliger could not offer any comment on the status of the instruction; neither could Secretary General of Economic Affairs Miguel DeWeever. Minister Meyers is currently off-island.

GEBE currently charges 29 cents per kilowatt hour and government intends to charge between 23 and 25 cents per kilowatt hour. Meyers said his decision had been forced by GEBE's lack of cooperation in providing information regarding the makeup of its tariff structure and fuel clause so that government could ascertain "true costs."

However, The Daily Herald understands that since Paul Marshall has been appointed as interim director while Managing Director Brooks is on vacation, government has been receiving information it requested.

Once the instruction for the new tariffs is given, the tariffs will remain in place until Bureau Telecommunication and Post (BT&P) Curaçao completes its scrutiny of the figures associated with GEBE's tariff structure. BT&P will then advise government how to proceed as of January 2012. However, BT&P requires information from GEBE.

The Minister could not say how government's tariffs would affect GEBE's investments and if those investments would still be met, if operational expenses could be covered, if GEBE would still be in compliance with its debt service ratio of 1.5 with its major lender, how losses would be increased on Saba and St. Eustatius, considering that tariffs would have to be reduced there as well and if the cost structures of the "international norms" that he referred to were the same as GEBE's.

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