Bonaire in Business: Room for business

Blog

20 May 2016

The Spatial Development Plan Bonaire (Ruimtelijk Ontwikkelingsplan Bonaire or ROB) has been in effect in Bonaire since 2010. In this ROB, the Public Body of Bonaire (Openbaar Lichaam Bonaire or OLB), or actually the Island Council, has laid down how land and water in Bonaire can be used. As an entrepreneur, it is important to consider whether running your business is permitted on a certain location. If this is not the case, you risk ‘administrative enforcement’ and penalties. In this article, I will discuss the structure of the ROB, the possible restrictions of the ROB and the options to modify the ROB.

The ROB

The ROB consists of two sections: a so-called ‘zoning map’ and the ‘zoning plan regulations’. The zoning map indicates what parts of the island have a certain designated use, using colors, letters and symbols. For instance, the designated areas for hospitality purposes are indicated with the color red and the letter ‘H’, and the designated areas for retail  are marked with a red-brown color and the letters ‘DH’ (for the Dutch equivalent detailhandel). The zoning map can be inspected at the OLB, and can also be consulted digitally at www.bonaire-ro.nl.

The zoning plan regulations (which can also be consulted digitally) explain that for instance areas with a designated Hospitality use “are meant for restaurants, snack bars, and cafes”. In addition, the applicable building regulations are described; in this case that buildings cannot be built less than three meters from the side boundary.

For some designated uses it is not immediately clear what is and is not permitted. For instance, the designated use ‘Center’ permits “shops, hotels, restaurants, snack bars, cafes, discotheques, buildings for services, houses and buildings to practice sports and wellness”. This means that, as an entrepreneur, you often cannot avoid reading the entire ROB to find a suitable location for your business.

So, the ROB gives detailed rules on the use of land and building options. The purchase deed or ground lease can contain further restrictions as well.

Flexibility

In some cases, the ROB permits the Governing Council to grant an exemption or dispensation, although a certain designated use had already been allocated. As such, a certain use can still be facilitated after all. In addition, it is also possible to modify the ROB with a special procedure. Thus, the OLB can adjust the possibilities for use based on the needs of entrepreneurs and others. Meanwhile, some modifications have already taken place, which can generally also be consulted digitally. These modifications  have resulted in some altered zoning maps as well. However, these changes are not included in the original zoning map and ROB, but are registered as supplements and modifications instead. Therefore, it is important to verify whether a specific modification might apply in your case.

It requires a balancing of different interests to lay down the ROB and to implement the modifications. Through ‘public consultation’ you can be involved and comment. For instance, if you do not like a cinema or supermarket being built adjacent to your resort, you can notify the OLB when it intends to modify the ROB. Your interest will then explicitly be considered. If the OLB still decides to implement the modification, you can even institute legal proceedings. As a rule, the court will give the OLB some space to balance the interests. In other words, it is possible that your interest is considered subordinate to other interests.

Enforcement

You have to observe the rules the ROB contains. If you use land or water  in a way that is not permitted based on the ROB, you can be called to account by the OLB, unless it is a special case of transitional law. The OLB can then request you to cease the use that is in conflict with the ROB subject to a penalty. In extreme cases, the OLB can proceed to ‘restoring the legitimate situation’ by, for instance, causing an illegal structure to be demolished at your expense.

If the OLB does not proceed to enforcement of its own accord, you can request the OLB to do so. This is called a petition to apply ‘administrative enforcement’. In our legal system, the starting point is that there has to be enforcement. So in principle, the OLB has to comply with your petition if you have an interest in it. In this way, you can cause unpermitted activities to be ceased, without having to go to court yourself.

Conclusion

Zoning rules determine the possibilities of use and building options of land in Bonaire. These rules have been laid down in the ROB, so that you can verify whether running your business is permitted on a certain location. If this is not permitted, you can request modification of the ROB or use the flexibility instruments in the ROB. In this way, it is often quite possible to find a balance between the various interests.

Tom Peeters is an experienced and specialized real estate lawyer and head of our Bonaire office. He regularly publishes about project development, sustainable energy projects, cooperative structures and (public) procurement. Via this blog he shares his knowledge about these and other legal topics that concern entrepreneurs in Bonaire.