The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Opponents of a controversial Harbour Island marina project are hoping to force its ex-project manager to "shed light" on whether its permits are non-compliant with government approvals processes.

Br-Island Responsible Development Association (BIRD), in legal papers obtained by Tribune Business, is seeking a US federal court order to compel Bernard Ross, who has a history of convictions and run-ins with US law enforcement, to give up whatever inside knowledge he holds on 4M Harbour Island and its principal, Michael Wiener.

BIRD's move, made on Wednesday, comes just two weeks after it launched a second Judicial Review challenge to 4M's construction and other permits in the Bahamian Supreme Court. Its application to the south Florida federal court to force Mr Ross to provide testimony and evidence is thus an attempt to bolster legal manoeverings aimed at thwarting the developer's ambitions.

Alleging that Mr Ross should possess "first-hand knowledge and information" relating to 4M's efforts to build a "steel metal 'artificial island'" and dock, as part of its Briland Residences and Marina project, BIRD and its members are alleging that the developer has violated Justice Diane Stewart's October 17, 2019, order that all permits be obtained in compliance with the law and established procedures.

"At issue now is whether 4M has violated this 2019 court order by continuing construction on the marina project without obtaining a permit 'made in compliance with the law'," Theresa Mersky, BIRD's vice-president, secretary and treasurer, alleged in a July 15, 2020, affidavit.

"4M began construction again following the issuance of a new building permit on April 21, 2020, by the Harbour Island District Council (HIDC). However, BIRD contends that this second permit is also legally invalid because it also was not made in compliance with applicable law."

She added: "The April 2020 building permit was issued following a written decision of the HIDC dated January 13, 2020, which stated, in pertinent part, that it was granting approval for the marina project subject to certain conditions, including that the project meet the requirements of the Bahamas Environment, Science and Technology Commission (BEST), and 'other relevant government agencies'."

"BIRD contends that because these conditions have not been met, the April 2020 building permit is invalid and, along with another party, has initiated a second judicial proceeding in The Bahamas seeking to have it quashed."

That second party is Ithalia Johnson-Elson, who BIRD said lives at New Juicy Hill on Harbour Island, "and has been involved in numerous challenges against irresponsible development" both on her own and via the Save Harbour Island Association.

Meanwhile, outlining the latest Judicial Review challenge to 4M's development, Ms Mersky added: "More specifically, in this new proceeding, BIRD contends that the requirements of the following Bahamian government agencies have not been complied with - the Harbour Island District Council; the BEST Commission; and the National Economic Council of The Bahamas.

"The Harbour Island District Council is the local governmental entity on Harbour Island. Under applicable laws, the Harbour Island District Council is required to engage in public consultation before making any decision. BIRD contends that this requirement was not met for a number of reasons.

"As a US company, 4M was required by Bahamian law to obtain the approval of the NEC for its marina project. Permission was granted by the NEC subject to the approval of an Environmental Impact Assessment (EIA) by the BEST Commission, and subject to certain size limitations, which BIRD contends 4M has exceeded."

Ms Mersky said BIRD was especially hopeful that Mr Ross will provide incriminating information on "the negotiations" between Mr Wiener's 4M and the Harbour Island District Council, which led to the grant of the April 2020 building permit.

"Any relevant evidence obtained from Mr Ross regarding impropriety in the permitting process will be used by BIRD to support its position in the judicial proceeding that is pending in The Bahamas. I have been informed by BIRD's Bahamian counsel that such evidence would be admissible with the leave and directions of the presiding Bahamian judge under applicable Bahamian law," Ms Mersky added.

No evidence of "impropriety" has been produced to-date, and it is unclear whether Mr Ross will be able to provide anything useful in relation to the permit granted by the Harbour Island District Council given that he and Mr Wiener parted ways in June 2019 - some 10 months before the approval in question was obtained.

All parties - Mr Wiener and BIRD, whose members are said to be drawn from Harbour Island residents - previously agreed that the site plan approval initially granted to 4M should be quashed, having been wrongly granted by the Government's Town Planning Committee instead of the Harbour Island District Council. This led to Justice Stewart's original order.

Mr Wiener and 4M Harbour Island did not respond to Tribune Business requests for comment before press deadline last night despite a spokesperson being contacted and informed about the nature of this newspaper's inquiries.

But the BIRD move, and second Judicial Review action, merely represent the latest legal headache for Mr Wiener, a California-based lawyer, in his efforts to progress his multi-million dollar investment. For, as reported by this newspaper, he is also embroiled in a legal battle with Mr Ross in the central California courts over his former project manager's claim that he breached their settlement agreement.

The pair agreed a $2.3m deal, with Mr Wiener paying Mr Ross and his wife, Holly, the first $1.319m installment, after their differences over the Harbour Island development's management became impossible to reconcile.

However, the 4M principal halted payment of the remaining $1m on the basis that his former project manager had created more issues and damages than first realised. Mr Ross thus headed to the central California court in a bid to force Mr Wiener to honour the settlement and pay the balance.