Plaintiff Frank Fumo looks at the excavation site in Cupecoy where a three-level underground garage with a pool, restaurant, and bar is planned as part of the 21-level condo hotel The West Vue, directly next to the apartment building where he and his wife live for six months each year.
PHILIPSBURG--The Ministry of Public Housing, Spatial Planning, Environment and Infrastructure VROMI, represented by attorneys Gerald de Jong and Valya Pantophlet, told the court on Tuesday that the Government is not responsible for restoring vehicular access to residents’ homes after a Government-approved project blocked the court-recognized right of way for homeowners in Cupecoy.
“The Ministry of VROMI finds itself between a rock and a hard place,” Government attorney Government attorney De Jong said.
Owners of apartments at Jordan Road 12 in Cupecoy,, represented by attorney Geert Hatzmann, filed summary proceedings after an October deadline to restore road access passed without action. The deadline arose from a January 24, 2025, agreement in which the court ordered developer NLGY, behind the planned 21-storey condo hotel The West Vue, to remove part of a roof structure of workers’ barracks so residents could access their vehicles. The court reaffirmed the homeowners’ long-standing right of way across the property.
A proces-verbaal filed under case number SXM202401458/KG 131/2024 documented the agreement reached before the January 24, 2025, hearing ended.
Attorney Vivian Choennie of Fox and Associates represented the plaintiffs at that time, while Richard Gibson Jr. of Gibson and Associates appeared for NLGY. The court noted that a full civil trial would take too long, given the urgent situation, as residents were unable to reach their vehicles due to excavation work and blocked access.
The sole vehicular access to their property had always been through the former Summit Hotel parking lot, the homeowners said. “These parking spaces have existed since our building’s construction in 1976.” When they returned to their properties in October 2024, they found two cars trapped by large barracks built by NLGY, with no alternative exit.
NLGY argued it was only required to provide pedestrian access, but residents said the temporary dirt walkway is unsafe, especially in wet conditions.
On Tuesday, NLGY’s lawyer Zylena Bary said that her client’s non-compliance with the January 24, 2025, settlement was due to “overmacht”, as the Ministry of VROMI had issued a Stop Order for excavations carried out by The West Vue developers on March 11, a decision upheld by the Court less than a month later.
While Bary said the Stop Order prevented NLGY from creating an access road by October, she also argued that residents had no right to a vehicular road and were only entitled to pedestrian access. “The footpath is there; the residents themselves prove this through their WhatsApp posts,” Bary said.
The footpath is a 50-metre-long sand alley situated between a school wall and barracks erected by NLGY in the fall of 2024. The path was recently narrowed after the developer’s contractor buried cables in the dirt and chipped away part of a cement walkway that homeowners claim belongs to them.
The homeowners fear that in the event of a fire in the wooden barracks, they would be trapped, especially now that fences have been placed around the excavation area. There is no safe exit, except by climbing over their back terraces and descending a four-metre slope to reach safety.
Both the Government’s lawyers and attorney Bary submitted a “full Fire Department report” from February 2024 on the safety of The West Vue project. However, the report predates the erection of the barracks in fall 2024.
“There is no point in arguing this,” the Government attorneys and NLGY’s lawyer told the judge on Tuesday, “as summary proceedings are not the proper legal route to challenge this.” The case would need to be brought before an Administrative Court. Attorney Bary added that the plaintiffs are abusing the legal process and wasting the Court’s time and resources.
Attorney Hatzmann countered that his clients are middle-income residents with limited means, like many on the island. “Their pockets are not as deep as the Government’s or your clients’,” Hatzmann said. Having already funded three legal cases, he warned that his clients were nearing the end of their resources, raising concerns about citizens’ ability to defend their rights.
The plaintiffs also commissioned Dutch geotechnical engineering firm Geobest to perform a risk assessment of the planned 61.5-metre-high construction, which includes three levels of underground parking, as well as commercial swimming pools and restaurants on top.
The Geobest report raised alarms over the safety of the planned West Vue project, warning that construction should stop immediately until essential studies and engineering plans are completed. Engineers called for a halt to the ongoing deep excavation at the site.
The project envisions a 21-storey high-rise with a two-level underground parking garage, close to existing residences and a school. The Geobest report, prepared at the request of Cupecoy residents, concludes that the development poses “a high-risk profile” and lacks the necessary geotechnical, hydrological, and monitoring data to ensure safe construction.
According to Geobest, their experts could review only limited information – mainly photographs of partial documents from VROMI. No complete building plans, soil studies, or engineering analyses were provided.
“The information supplied is extremely limited and far below what is expected for a project of this scale,” the report states. The firm noted that no soil investigations had been conducted, despite the project’s proximity to an apartment building and a dozen waterfront town-homes.
The plans include a 5.5-metre excavation for the underground car park, a design requiring thorough understanding of soil stability, groundwater conditions, and seismic risks. This is particularly important as St. Maarten lies within an active seismic zone.
Geobest recommended at least 10 boreholes up to 25 metres deep, strength and stability testing of soil and rock layers, groundwater monitoring, and a comprehensive seismic assessment. The absence of this data makes it impossible to evaluate the project’s safety or the potential impact on neighbouring structures.
“The construction of a high-rise building with a two-storey underground basement close to existing buildings must be regarded as a high-risk project,” the report concludes. “The lack of the above-mentioned information is unacceptable. As a result, the risk profile increases dramatically.”
The engineers also emphasized the need for geotechnical risk analysis and continuous monitoring during excavation, including settlement markers, inclinometer readings for ground movement, vibration monitoring, and crack measurements on adjacent buildings. Such measures would allow early detection of soil displacement or structural stress.
However, the report notes that no monitoring plan has been developed, and no fallback or emergency procedures are in place. “Any soil movement behind an excavation could result in damage to adjacent buildings,” Geobest warned, urging that a clear chain of responsibility be established before work begins.
Residents have expressed growing concern over the project, given its proximity to existing homes and the lack of transparency in the permitting process. They
commissioned the Geobest report to ensure the safety of current structures and residents.
If construction proceeds without proper studies and safeguards, the report warns, the risks of soil movement, foundation failure, and damage to nearby buildings could be severe.
While Government attorneys claim all legal responsibilities have been met, NLGY said it had contracted U.S.-based Schnabel Engineering to conduct a geoengineering study of The West Vue project. This study had not been released prior to the Tuesday, December 2, court hearing, despite numerous requests.
The plaintiffs requested that the judge have this study submitted to Geobest for review and completion of their report. “If all requirements are met, we acknowledge that,” Hatzmann said.
The judge will decide the case in two weeks, with a verdict expected on December 16.
