Patricia Green | Citizens versus building developers – covenants right or wrong

The Gleaner’s May 14 editorial addressed sympathetically ‘Restrictive Covenants’, yet I raise as somewhat unfortunate the Financial Gleaner of May 7 headlined “Lagoons loses first round in beachfront stand-off”. Is this case a financial matter? Is it related to the dollar value of the property of this Montego Bay gated community or the people involved?

This case and its outcome transcends income levels but is about covenants being discussed in Parliament elaborated in The Gleaner editorial.

Barry Thomas, in his December 20, 2020, Gleaner column titled “Victims of urban development” about a Kingston 6 upper middle-income neighbourhood evoked this comment in The Gleaner’s online platform from Barushka: “unfortunately, the laws governing approval development can be overlooked by a cheque or cash”. Idlejuvee wrote another:

“… I feel for you, trust me I do. What made me raise an eyebrow was the location cause I though those behaviours were relegated to the inner city. I was wrong sorely so. I live in Kingston 11, lived there all my life. Two neighbours one to my left and the other to right decided to make two story houses robbing me of my privacy plus other property infringements. I took pictures, sent emails, called, begged even for the KSAC to help me ... and all they did was ignore me. I stirred a reaction when I told the assistant that “is because mi live a tohwhile [sic] why enhu a treat me so”? she quickly said no and that was that. Almost 10 years later I have adjusted to a life inside my house. I don’t spend much time outside as I feel watched ... .”

Understand that developers are two-fold, either non-residential/outsiders, or neighbours owning property next door who may choose to remain inside the neighbourhood or divest the property. A neighbourhood may have inside its covenant only single-storey buildings. This may be challenged by a neighbour deciding to build higher.

Idlejuvee has the same concerns as Yoni Epstein, chair of Lagoons Management Limited: “The voice of the people wasn’t heard.” Epstein continued, “There are many knock-on effects, including property values being significantly reduced, beach erosion, and other negative effects to the marine park.”

The court ruled over Lagoons beach and seafloor inclusion, “no locus standi to assert a right or bring a claim in that regard as that authority would rest with the attorney general on behalf of NEPA/NRCA, in accordance with The Beach Control Act.”

United States law professor Lawrence Berger in Conflicts Between Zoning Ordinances and Restrictive Covenants: A Problem in Land Use Policy postulates three categories for land-use control:

(1) Covenant as consensual arrangements of the landowners;

(2) Nuisance as common law doctrines of private liability;

(3) Direct governmental regulatory controls over land use, the zoning and allied laws.

Covenants, Berger states, “have private ends in view, and although they may in some instances be directed to secure the public welfare or the good of a residential or other property development, they are, nevertheless, privately conceived, controlled and directed”. Are governmental authorities failing to protect Jamaica’s environment from negative development of beaches, wetlands, ecosystems, watersheds, The Cockpit, Dry Harbour, even neighbourhood covenants? Are they protecting the urban environment?

Jamaicans welcome development. However, the outcry is for public authorities to fulfil requisite good environmental governance, natural and built. In this absence, how does Jamaica fulfil UN Sustainable Development Goals?

Citizens versus developers, both victims, neither right nor wrong echoed in a poignant covenant plea “we just want to live in peace with our neighbours” Dr Muppuri told the Financial Gleaner in response to the Lagoons ruling.

- Patricia Green, PhD, is a registered architect, former head of the Caribbean School of Architecture in the Faculty of the Built Environment at University of Technology, Jamaica. Send feedback to patgreen2008@gmail.com.