Cayman has written itself a new Development and Planning Law and looks set to do the same with a National Conservation Law as well. Journal reporter Brent Fuller reviews how both pieces of legislation will affect development and considers the question of whether everyone can get along.
Recently approved changes to the Cayman Islands Development and Planning Law will essentially allow for denser, multi-purpose developments, higher buildings along Seven Mile Beach and a speedier planning approval and appeals processes.
Environmentalists were outraged at certain sections of the new planning law, which will now allow for 10 storey buildings along the Seven Mile Beach corridor, and which will basically allow government to ignore the law for projects deemed to be “in the public interest”.
Premier McKeeva Bush realises there could be some opposition to these moves, but he said the need for economic development in a time of global slow-down is paramount.
“This will give momentum to the renewal of some of the older properties on the beach, allowing them to be renovated or rebuilt,” Mr. Bush told the Legislative Assembly in July.
“Given the way the previous definition for building height has been interpreted, we do have some buildings on the strip that seem to approach near that height at the moment.”
Mr. Bush added that there was “no good reason” for projects deemed to be of national importance not to go forward just because one or two people in the area of the development objected, hence the addition of the law’s out-clause for government.
A proposed National Conservation Law, if approved, will allow a government-appointed board to make recommendations for the restriction of development on certain Crown land that has been designated as a protection or conservation zone. It could also allow private landowners to designate their properties as nature preservation areas.
For the first time, the law would require the Department of Environment to be notified of certain planning proposals, and various local indigenous species would be given protection.
In all decisions the advice of the appointed National Conservation Council would be sought and considered.
Opponents of the conservation law have expressed concern that it will stymie development, and allow government to take private land for conservation purposes; claims DoE Director Gina Ebanks-Petrie has said are simply not true.
The proposed law will require the slowing of the planning application process to a certain extent, with requirements that the DoE and the public is notified of new projects and that environmental impact assessments should be done on any proposed developments that trigger the involvement of the National Conservation Council.
Builders have questioned whether that process would “give ammunition” to objectors who simply wanted to derail a potential development.
Mrs. Ebanks-Petrie replied that if all pertinent laws and regulations were followed, project developers would not be open to any legal action. However, she admitted that the conservation council would act in an environmental advocacy role.
“Of course the (National Conservation) Council is weighted towards people who care about the environment,” Mrs. Ebanks-Petrie said during one of several public meetings held to review the proposed conservation law in July. “It is a conservation law. It’s not a planning law; it’s not a development law.”
Building made easy
The new Development and Planning Law and regulations, passed by the Cayman Islands Legislative Assembly in July, were drawn up by a public-private sector committee led by local architect Burns Connolly. They were under review for about a year.
Mr. Bush said many of the issues addressed in the proposed amendments to the law have troubled the Cayman Islands for a long time. He said government sought to address delays and difficulties in the process that led some developers to simply “give up” on projects in the past.
There are some protection measures in the planning law as well.
Among the many changes are sharply increased daily fees for property owners who refuse to clean up their land or deal with abandoned buildings when ordered to do so.
Fines of $5,000 per day on derelict properties will be imposed for scofflaws under the new bill. The fine rises to $25,000 in tourism centres where owners have ignored Planning Department orders to clean up their property.
Other changes include a reduction in distance requirements for development of certain commercial projects. Currently, builders have to “poll” everyone within 1,500 feet of a development prior to obtaining planning approval. Formal objections to the development can slow or even halt projects.
The polling distance is shortened to 1,000 feet under the new bill.
The bill extends the time on planning permits from one year to five years to allow enough time for building inspections and other requirements. Right now, Mr. Bush said, some permits are expiring before all the regulatory work for a property is completed, forcing planning applicants to re-apply.
The bill also requires appeals of planning board decisions to be heard within six months and allows applicants to recover attorneys’ fees from parties who file appeals that are deemed “frivolous or vexatious”.
Planning regulations have been changed to include ‘planned area developments’. These are 40-acre or larger properties of ‘mixed use’ – typically meaning both residential and commercial.
Mr. Bush said some effort has been made in the amended law to minimise the effects of these larger developments on the surrounding community.
Also, planning permission would be formally required for interior development of a building that changes the use of the property or that has some impact on the surrounding environment. Mr. Bush said this has been informally enforced already, but that government wanted to cement it within the law.
The National Conservation Law as proposed would only allow the government to protect lands owned by the Crown against development.
However, Mrs. Ebanks-Petrie said Section 6 of the proposed law sets that out clearly.
“I continue to hear…that private land will be able to be taken away to be protected,” she said. “Only Crown land can be declared a protected area or a buffer zone.”
It is contemplated under the yet-to-be released regulations to the conservation law that there will be some provision for the protection of private land. But Mrs. Ebanks-Petrie said that would require the assent of the landowner.
“If private land is identified as in need of protection or worthy of protection, the council can recommend to Cabinet that the land is acquired,” Mrs. Ebanks-Petrie said.
“What is envisaged is that there would be a negotiated process with purchase, and if the landowner says no, that’s it.”
The proposed National Conservation Law contains no provision in it for compulsory acquisition of private land, known in some jurisdictions as eminent domain powers. Without those abilities, the Department of Environment would not be legally allowed to take anyone’s land, Mr. Ebanks-Petrie said.
For Crown land, the council would propose that land as a protected area. The proposal would then have to go out for public consultation and advertised for two consecutive weeks in local newspapers.
Once that process is completed, Cabinet would have to decide whether that land would in fact be established as a protected area.
Mrs. Ebanks-Petrie said the conservation law may also give landowners the option to lease their properties to the department, if those areas contain certain rare local species of plants and animals.
This could be effective in cases where development of that land would be impractical and/or unwanted because of environmental concerns; but the owners do not have the ability to care for the property and want to get something out of it, she said.
Higher beach buildings
Under Cayman’s Development and Planning Regulations, developers along the Seven Mile Beach corridor on Grand Cayman can now build structures up to 10 storeys.
The previous height restriction was seven storeys.
Building height allowances were also increased slightly in beach resort/residential zones in other parts of Grand Cayman.
Maximum height restrictions in general commercial zones will stay the same as they are now; seven storeys in downtown George Town and five storeys elsewhere.
The Development and Planning (Amendment) (No.2) Regulations also redefine how building height is measured so that the average finished height of a development site is used, rather than the centre line of the road the property abuts.
The height change applies only to buildings in “Hotel/Tourism Zone 1” – that’s basically Seven Mile Beach between West Bay Cemetery on the north and Dixie Cemetery on the south.
In that area only, the maximum height will increase to 10 storeys or 130 feet, whichever one is taller. Currently, the regulations allow only seven storey buildings or a maximum of 91 feet.
“These changes do not apply to hotel/tourism zones throughout the Island, but only to the West Bay Road tourism belt,” Premier Bush said.
For properties in areas zoned beach resort/residential, changes to the planning regulations now allow buildings to reach up to 40 feet high, rather than 33 feet. The structures cannot extend above three storeys in those areas. Mr. Bush said that change was made mainly to allow for larger floor areas inside of beach resort homes.
“Modern buildings need more space internally for higher ceilings, air-conditioning equipment and structural beams,” he said.
Do more with less
The newly approved regulations also allow for smaller lot sizes everywhere on Grand Cayman. The minimum size of the lot will depend on whether the area is considered high-density, medium-density or low-density for development purposes.
Premier Bush said government has long heard calls about the need to reduce minimum lot size requirements, particularly in higher density areas where business development has been limited due to lot size.
“Not only will this help keep land affordable because it is cheaper to service smaller lots, but it will also help make wiser use of our limited land area,” he said, adding that subdivisions would cost less to develop with smaller lot requirements.
In high-density residential areas, minimum lot sizes will go from 6,500 square feet to 5,000 square feet for houses and duplexes. For medium-density areas, that requirement goes from 10,000 square feet to 7,500 square feet.
For low-density areas, detached home property requirements will go from 12,500 square feet to 10,000 square feet; and duplexes will change from 13,500 square feet to 12,500 square feet.
Although minimum lot size requirements changed, site coverage and property setback specifics remain the same under the revised regulations.
“Buildings do not get any closer to each other,” Mr. Bush said.
The revised planning regulations also allow for businesses to have less on-site parking, particularly those in the central district of George Town.
“This will activate the potential for additional growth within George Town and make it again practical to develop some of the smaller parcels there,” Mr. Bush said.
The regulations now allow a business to locate up to half of its parking “off site”; that’s within 500 feet of the commercial building in general commercial zones. In central George Town, a full 100 per cent of the parking can be “off site” or within 700 feet of the building.
Opposition members and the Legislative Assembly’s lone independent member voted against amendments to the Development and Planning Bill, although most stated they had few problems with the bill as it pertained to the development-related changes themselves.
The opposition “no” vote mainly came because members believe the new law would reduce the amount of information available to the public about planning proposals and would give the government the ability – in certain situations – to ignore the law.
Opposition MLA Arden McLean compared the last issue to something that “would be seen in Russia”.
“These are some serious changes in this law,” Mr. McLean said. “(Development) affects every living soul in this country.”
Concern centred on sections of the bill that would let future changes to the planning regulations be approved by Cabinet members alone, rather than the entire Legislative Assembly.
Also added to the bill was a section that allows the Cayman Islands governor to waive certain requirements under the planning law if “the public interest so requires”.
“Whatever the executive decides is well said, well done and that’s it,” Opposition Leader Kurt Tibbetts said. “That is far-reaching. I do not believe that the democratic process is served well.”
The section of the bill Mr. Tibbetts addressed was amended in committee to allow the governor to waive only Section 13 of the Development and Planning Law.
However, that section deals with most of the provisions for development contained in Cayman Islands law.
Premier McKeeva Bush said there were many reasons to give government the ability to waive that section of the law.
“There is no good reason why…it (government) should be prevented from undertaking such a development, like a police station or a fire station,” Mr. Bush said.
“There are projects of national importance, which government cannot afford to have bogged down by objections.”
The other major problem for the Legislative Assembly’s opposition and independent members was the proposed increase in planning fees charged to support local public infrastructure and affordable housing initiatives.
Independent MLA Ezzard Miller said the new fees – as initially proposed by government – would tack some $130,000 onto the cost of building a new 10-unit apartment building in North Side.
“That’s a lot of money,” Mr. Miller said. “I think that it would deter some small, ten-unit developments.”
The fees were later changed by amendment during a committee meeting of the Legislative Assembly. They differ depending on the development area identified by the government.
For area ‘A’ – the densest and usually highest-priced sections of Grand Cayman – infrastructure and affordable housing fees total $2.50 per square foot for an industrial building, $4.50 per square foot for commercial buildings and hotel buildings, $3.50 per square foot for institutional buildings and $5 per square foot for any size house.
In development area ‘B’ – industrial buildings will be charged $1.50 per square foot for infrastructure and affordable housing fees, commercial buildings, hotels, apartments and institutional buildings will be charged $2.50 per square foot, and houses are charged depending on their size.
For development of a 3,001-4,000 square foot house, a fee of $2.50 per square foot would be paid. For a house between 4,001-5,000 square feet a fee of $3 per square foot would be owed; and for a home over 5,000 square feet, a $3.50 per square foot is now charged.
In area ‘C’ – the lowest density development areas – a $0.50 per square foot charge is levied for any development.
In addition to the infrastructure and affordable housing fees, a one-time $3,000 per hotel room fee will be charged everywhere in Grand Cayman on issue of a certificate of occupancy for the hotel by the Planning Department. Apartments with 11 units or more would pay a $20,000 one-time fee per unit after receiving their certificate.
Mr. Bush said the increased planning fees were going to hit some businesses. But he said the government tried to balance the fees and avoid affecting the smaller, local developers and that he believed the “good” larger companies would still wish to build in Cayman.
“You do that by creating an environment where (businesses) can grow,” he said. “It is long past time when we just give and give and we don’t get anything out of it.”
Cayman Free Press reporter Norma Connolly contributed to this story.