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Amendment Plan Penitentiary

Public Entity St. Eustatius identification plan status project number: date: status:

700102.17155.00 July 16, 2012 draft project manager: drs. D.W. Takkebos

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_______________________________________________________________________________________________________________ Amendment Plan Penitentiary, July 16, 2012 Adviesbureau RBOI-Buro Vijn Rotterdam / Middelburg / Oenkerk

Table of contents Explanation .............................................................................................................. 3 Chapter 1. Introduction ........................................................................................... 4

1.1 Motivation .................................................................................................... 4 1.2 Plan area ...................................................................................................... 6 1.3 Structure of the amendment plan .................................................................... 6 1.4 Procedure ..................................................................................................... 7 1.5 Digital and hard copy ..................................................................................... 7

Chapter 2. Existing situation .................................................................................... 8 2.1 Location of the amendment plan area .............................................................. 8 2.2 Zoning of the sites according to the ROP .......................................................... 9

Chapter 3. The new situation ................................................................................. 10 3.1 ManOWar 1: Business Area ........................................................................... 10 3.2 ManOWar 2: penitentiary ............................................................................. 10 3.3 Assessment of the location ........................................................................... 11

Chapter 4. Review of ROP amendment criteria ................................................. 13 4.1 Assessment framework ................................................................................ 13 4.2 Assessment ................................................................................................ 13 4.3 Conclusion .................................................................................................. 14

Chapter 5. Research and policy .............................................................................. 15 5.1 Link to the Strategic Development Plan .......................................................... 15 5.2 Landscape .................................................................................................. 16 5.3 Ecology ...................................................................................................... 16 5.4 Businesses and environmental zoning ............................................................ 17 5.5 Air quality .................................................................................................. 18 5.6 Soil ............................................................................................................ 19 5.7 Archaeology and cultural history ................................................................... 19 5.8 Traffic ........................................................................................................ 20 5.9 Airport ....................................................................................................... 21 5.10 External safety ............................................................................................ 22 5.11 Light pollution ............................................................................................. 24 5.12 Water and erosion ....................................................................................... 24

Chapter 6. Explanation to the zoning and the designations ............................... 25 6.1 Business Area – 1 ........................................................................................ 25 6.2 Public Interest Use – Penitentiary 1 ............................................................... 26

Chapter 7. Feasibility ............................................................................................. 27 7.1 Economic feasibility ..................................................................................... 27 7.2 Social feasibility .......................................................................................... 27

Regulations ............................................................................................................ 28

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_______________________________________________________________________________________________________________ Adviesbureau RBOI-Buro Vijn Amendment Plan Penitentiary, July 16, 2012 Rotterdam / Middelburg/ Oenkerk

Explanation

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Chapter 1. Introduction

1.1 Motivation

Why is relocation of the zoning required? The Ministry of Security and Justice has entrusted the Government Buildings Agency (Rijks-gebouwendienst)1 to develop a penitentiary on St. Eustatius for St. Eustatius as well as Sa-ba. The penitentiary will include 18 multiple prisoners’ cells for a maximum of 36 prisoners. According to the Spatial Development Plan (further referred to as ROP, Ruimtelijk Ontwikkel-ingsplan), it is allowed to develop a penitentiary to the north-east of the business area: the so-called ManOWar 1 site (working title). This site has been zoned for ‘Public Interest Use - Penitentiary’ (PU-P). The Executive Council has decided to designate a better suitable site for development of a penitentiary for the following reasons: • From ManOWar 1 the penitentiary is visible from Oranjestad. • The size of the zoning PU-P at the ManOWar 1 site is not large enough to accommodate

development of the penitentiary. For the aforementioned reasons, the Executive Council has decided on May 4, 2012 to defi-nitely develop the penitentiary on the site known as ManOWar 2 (working title). This site lies approximately 100 meters east of ManOWar 1.

Figure 1.1 Excision of ROP with plan area sites

1 Part of the Ministry of Interior and Kingdom Relations.

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Why an amendment plan? The new site has been zoned ‘Mixed Use – Business / agriculture to be detailed’ (MU-BA-D), see figure 1.1. This zone does not allow development of a penitentiary, because a peniten-tiary is classifiable as a social facility and the zoning does not allow detailing for this purpose. The ROP provides the possibility to allow for development initiatives by employing amend-ment authority. This planning instrument enables initiatives which are not directly permitted by the ROP, but which are essential from a policy perspective. Applying amendment authori-ty will provide planning support for the development of the penitentiary. The amendment authorities in the ROP contain criteria to establish for what purposes the authority may be applied and which conditions are to be met for that particular initiative. These include the social interest of the development for the island, the economic feasibility, the building heights to be observed and the assessment of the impact of the plan on the quality of life and living and values such as nature, landscape, archaeology, cultural history and security. The authority to introduce amendments will be used by adopting an amendment plan. The intended development of the penitentiary is described in this amendment plan, and reviewed to the authority criteria for introducing amendments of the ROP. Chapter 4 will enter into this in more detail. Which zoning is to be amended? To allow for development of a penitentiary on ManOWar 2, the zoning MU-BA-D has to be amended. This amendment plan will bring this into effect. Next to that, the site ManOWar 1 will be amended from its present zoning PU-P to the zoning ‘Business Area – 1’ (BA-1). The available area at the ManOWar 1 site will thus be available for expansion of the business area. It is not necessary to maintain the possibility for a penitentiary on ManOWar 1. By amending the zoning to BA-1, this option will expire. What constitutes the basis of this amendment plan? This amendment plan has been based on Article 40.1: amendment authority for the common public interest.

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1.2 Plan area

The zoning amendment plan area covers two areas which together constitute the plan area: the area zoned in the ROP as ‘Public Interest Use – Penitentiary’ (ManOWar 1) and the new site (ManOWar 2), see figure 1.2. The plan area has a geographical central position on the island, north of the runway.

ManOWar 1 ManOWar 1 lies to the north-east of the present St. Eustatius business area. The site has access to the road between Oranjestad and NuStar. ManOWar 2 The new site for the penitentiary lies at approximately 100 meters to the east of ManOWar 1 and to the West of the road connecting Oranjestad and Zeelandia. To the south-east of the plan area, is a small-scale horticultural area. The site lies approximately 300 meters to the east of the present businesses of the business area.

1.3 Structure of the amendment plan

The zoning amendment plan contains an explanation, regulations and a zoning map. The present ROP zoning for ManOWar 2 will be amended to the zoning ‘Public Interest - Peni-tentiary 1’ (PU-P-1). The ROP zoning PU-P will therefore apply to the ManOWar 2 site. For the site ManOWar 2, the present ROP zoning will be amended to the zoning ‘Public Inter-est - Penitentiary 1’ (PU-P-1). The present regulations for this zoning do not allow a peniten-tiary; therefore these will be amended where applicable. For the sake of clarity, the regula-tions of the amended zoning are included in this amendment plan. To distinguish between the present zoning and the amended zoning, the latter bears the suffix ‘1’. By adopting this amendment plan, the present ROP regulations for the zoning ‘Public Interest – Penitentiary’ will lapse. For the site ManOWar 1, the present ROP zoning will be amended to the zoning ‘Business Area - 1’ (BA-1). Because the zoning description for the present zoning ‘Business Area’ has

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been amended, a new zoning will be included. To distinguish between the present and the new zoning, the latter bears the suffix ‘1’.

1.4 Procedure

The amendment authorities in the ROP include procedural provisions. Before an amendment decision can be made whereby the zoning amendment plan is adopted, a draft zoning amendment plan has to be made available for public consultation. (ROP Art. 40.13). During the period for public consultation of the draft zoning amendment plan, any person concerned may submit objections. The power to use the authority to introduce amendments is in the hands of the Executive Council in conformity with the provisions in the ROP. The legal basis for the ROP – and as such the zoning amendment plan – is the Island Ordinance Spatial Development Planning St. Eustatius. This zoning amendment plan has been written in Dutch and translated into English. In case of deviations between the Dutch and the English version, the Dutch version prevails.

1.5 Digital and hard copy

This zoning amendment plan has been composed digitally and is available for digital consul-tation. For this, the digital zoning amendment plan is available via an Internet address (URL). The digital ROP will be amended according to this amendment plan. The zoning amendment plan will also be available in hard copy (on paper). The hard copy version will be adopted by the Executive Council. This adopted plan is the plan in force (le-gally binding).

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Chapter 2. Existing situation

2.1 Location of the amendment plan area

The amendment plan area consists of two separate parts: the site zoned in the ROP for ‘Pub-lic Interest – Penitentiary’ (ManOWar 1) and the new site (ManOWar 2), see figure 2.1. Both sites lie to the north of the airport and Oranjestad.

Figure 2.1 Plan area and surroundings ManOWar 1 The ManOWar 1 site borders the present business area. The area has access to the road connecting NuStar to Oranjestad. The western part of the area has little vegetation: The eastern part has some vegetation: shrubbery of approximately 1 meter high. The site is at the foot of the hills, allowing for optimum visibility from the surrounding grounds.

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ManOWar 2 ManOWar 2 is located near the road connecting Oranjestad and Zeelandia. The site consists of and is surrounded by open landscape with shrubbery, 1 to 2 meters high. To the south-east of the plan area is a small-scale horticultural area. To the north of this area a dirt road presently connects the area to the paved road. The site lies at the foot of the hills stretching across the northern part of the island. To the west and south-west of the plan area, the view of the site from Oranjestad is partly being shielded by continuing ridge, see also figure 5.1.

Figure 2.2 Images of the ManOWar 2 site

2.2 Zoning of the sites according to the ROP

ManOWar 1 ManOWar 1 is zoned for ‘Public Interest Use – Penitentiary (PU-P), which allows for develop-ment of a penitentiary. ManOWar 2 ManOWar 2 is zoned for ‘Mixed Use – Business Area/Agricultural to Be Detailed’. Within this zone, it is possible to expand the business area to the north of the airport and to develop agricultural businesses such as farming, stock farming, horticulture and aquaculture. The choice has been made for a zoning to be detailed at a later opportunity, because at the time of writing the ROP, it was not yet known which functions would present themselves over the years to come and therefore the planning for the area was also not yet known.

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Chapter 3. The new situation

This chapter elaborates on the plan for a penitentiary and the choice of site.

3.1 ManOWar 1: Business Area

At the time of adopting this amendment plan, there are as yet no actual initiatives for Man-OWar 1. The site will be available for businesses in accordance with the regulations of the new zoning ‘Business Area – 1’. This implies that businesses in the environmental categories 1 through 3.2 of the ROP Businesses list are allowed. The maximum allowed building height is 10 m and the maximum built-up surface percentage is 50%.

3.2 ManOWar 2: penitentiary

The penitentiary will consist of a number of buildings surrounded by two fences, each with a height of 5 m. The fences are intended to keep prisoners from escaping from the facility. Program The complex will contain 18 multiple prisoners’ cells, to incarcerate a maximum of 36 per-sons. The facility will further contain four holding cells, a segregation unit and multi-functional rooms for either labor (adults) or education (youths). The facility will also contain offices, a reception, a kitchen, service spaces and the main entrance. Surrounding the com-plex, an open-air exercise and activities area will be designed. The gross built-up surface of the complete facility is approximately 3,000 m2. Building and design of the site Parts of the plan will be built on so-called terraces, because of the topography of the plan area. Each terrace will have a cluster of buildings. Drains will be dug to discharge and infil-trate rain water. The building height of the buildings will vary between one or two floors. The cell complex will consist of one floor, the offices of two floors. By locating the cell complex for its largest part behind the hill and by building the offices to the south (the lower part), the cell complex will be shielded from the view from Oranjestad.

Figure 3.1 Impression of excision (the west is to the left, the east is to the right)

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The building’s guiding design principles are: • Shielding the cell complex from the view from Oranjestad as much as possible. • Applying tropical roofs. • Using natural ventilation in the cell complex by installing barred doors instead of solid

doors. • Building orientation for maximum use of the predominant wind direction for natural ven-

tilation. • Using the accumulating building property (mass) for climate control. • Using solar power. The complex will be accessible from the south by a new connection to the road to Oranjestad en Zeelandia.

3.3 Assessment of the location

This section will assess the suitability of the intended functions per location. ManOWar 1 The intended expansion of the business area on ManOWar 1 abuts the present business area and will be zoned as such. The expansion therefore (hardly) bars the present businesses and businesses to be developed on the legal basis of the ROP. The accessibility is good, via the existing business area and the road between Oranjestad and NuStar. ManOWar 2 Surface and location The location has a surface of approximately 2.1 hectares. This is sufficient: • to facilitate the planning program; • for landscaping measures for the initiative; • for measures to prevent erosion (for discharge and infiltration of rain water); • to develop ample parking space (25 bays) on site. The distance to the present residential area is big enough so as not to expect nuisance as a result of the penitentiary. Accessibility The location lies nearby a paved road connecting the area to Oranjestad, the airport and the sea port. This is particularly important for the transport of arrested persons/prisoners and goods and materials. Furthermore, this location is accessible for employees, visitors and building transport during its development. External safety and environmental zoning As far as external safety is concerned, a penitentiary is assessed by the same criteria that hold for housing, because a penitentiary, like a house, is a building where persons live for a substantial period in time. Based on section 5.10, it is concluded that the development of the penitentiary on ManOWar 2 complies with the standards for external safety. ManOWar 2 lies at a larger distance to the present business area than ManOWar 1. Develop-ing the penitentiary on ManOWar 2 creates a better planning situation. Present and future businesses will suffer less impact from the penitentiary if this is developed on ManOWar 2, see section 5.4.

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Landscape The location is surrounded by the hills to the north and a ridge to the south-west of the plan area. The ridge functions as a landscape barrier between the west and the south-western part of the plan area and the surrounding landscape. Furthermore, the ridge shields the facil-ity’s visibility from Oranjestad.

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Chapter 4. Review of ROP amendment criteria

This zoning amendment plan complies with the regulations for amendment as included in the Spatial Development Plan (ROP), Art. 40.1. The following sections review the compliance of the zoning amendment plan to the regulations.

4.1 Assessment framework

Based on article 40.1, the Executive Council has the authority to amend the ROP for devel-opment initiatives not provided for in the ROP. These initiatives have to be aimed at the common public interest, at public facilities or at initiatives that have added value for the is-land’s economy (employment), tourism or recreation. The amendment may not apply to the zonings ‘Natural Area – National Park’ and ‘Natural Area – Conservation The amendment may only be executed if the initiator has proven that with the development of the initiative, the quality of life and residence and natural, ecological, landscape, archaeological and cultural heritage values are taken into account. In the case of an initiative for which added value is required, the research must prove the actual added value and what the added value in-cludes.

4.2 Assessment

This section assesses the initiative for the development of a penitentiary according to the amendment authority criteria in ROP Art. 40.1. Public Interest Use ManOWar 1 Amendment of the zoning for ManOWar 1 to business area offers possibilities for new busi-nesses. This will lead to new employment. Growth of employment is an important aspect of Statia’s island economy and an important policy principle. ManOWar 2 Based on the Spatial Development Plan (ROP), a penitentiary is allowed on the ManOWar 1 site. This site is zoned for ‘Public Interest Use – Penitentiary’ (PU-P). The Executive Council (Bestuurscollege or BC) has decided to designate a more appropriate site for development of a penitentiary for the following reasons: • On the ManOWar 1 site, the penitentiary would be visible from Oranjestad. • The surface for the zoning PU-P at the ManOWar 1 site is too small for development of

such a facility. On May 4, 2012, the Executive Council has decided to develop the penitentiary on the Man-OWar 2 site. This location proves to be suitable for development of a penitentiary, see sec-tion 3.3 and chapter 5.

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No amendment in natural area zoning ManOWar 1 The amendment applies to the zoning ‘Public Interest Use – Penitentiary’. Therefore, there is no zoning for either ‘Natural Area - National Park’ or ‘Natural Area – Conservation Area’ to be amended in this area. ManOWar 2 The amendment applies to the zoning ‘Mixed Use – Business/Agriculture To be detailed’. Therefore, there is no zoning for either ‘Natural Area - National Park’ or ‘Natural Area – Con-servation Area’ to be amended in this area. Quality of life and living ManOWar 1 Expansion of the business area to the North will have no impact on the quality of life and living in the adjacent residential functions. These are at a distance of at least 400 m South of the site. ManOWar 2 The penitentiary will be developed relatively far from Oranjestad. Furthermore, the airport and its runway are situated between the plan area and Oranjestad. The nearest residential area is located at about 200 m from the site. There are hills between the plan area and the residential area. The penitentiary will have no negative impact on the present quality of life and living. Nature, ecology, landscape, cultural history and archaeology ManOWar 1 The amendment can only be adopted if the natural, ecological, landscape, cultural history and archaeological values must be taken into account. These aspects have been carefully researched. The conclusions of the research and the measures to prevent possible negative impact have been entered in chapter 5. The research shows that these aspects do not bar execution of the amendment plan. Amending the area for the penitentiary from ManOWar 1 to ManOWar 2 also improves the landscape image. This is caused by the presence of the ridge to the South-West of Man-OWar 2, which shields part of the facility from view. ManOWar 2 See ManOWar 1.

4.3 Conclusion

Amendment of the zoning ‘Public Interest Use – Penitentiary’ to ‘Business Area – 1’ and ‘Mixed Use – Business/Agricultural – to be detailed’ to ‘Public Interest Use – Penitentiary’ is in accordance with the criteria of the amendment authority in art. 40.1. For a description in detail into possible impact and necessary measures see chapter 5.

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Chapter 5. Research and policy

This chapter elaborates on the assessment to the criteria of the amendment authority arti-cles, see also chapter 4. First, the amendment is assessed according to the criteria of the planning policy of St. Eusta-tius, as laid down in the Strategic Development Plan (SDP). Then the sectorial aspects are covered. The relevant research conclusions of each aspect are listed as well as the necessary measures.

5.1 Link to the Strategic Development Plan

Assessment framework The Spatial Development Plan (ROP) has been based on both the present situation and the Strategic Development Plan (SDP). The SDP contains the view of the desired spatial devel-opment of St. Eustatius and is the governing assessment principle for new spatial develop-ment. In the SDP, St. Eustatius aims at achieving higher levels of prosperity and quality of life, through economic and demographic growth, maintaining its facilities and amenities and de-veloping St. Eustatius’ spatial qualities. Cultural identity and a feeling of security in a familiar environment are important building blocks in achieving higher levels of prosperity and quality of life. Assessment ManOWar 1 Economic development is a policy principle in the SDP. Therefore, ManOWar has been zoned as business area the SDP. ManOWar 2 Both St. Eustatius and Saba do not have prison facilities. Arrested persons and prisoners – of both islands – are at the moment being transferred to the detention center on Bonaire. The development of a penitentiary is necessary in order to guarantee the safety on St. Eustatius as well as on Saba. By developing a penitentiary, St. Eustatius will dispose of its own deten-tion facility. Thereby, it will no longer be necessary to transfer arrested persons and prison-ers from St. Eustatius and Saba to Bonaire. An added benefit is that family of prisoners will find it easier to visit their incarcerated family because the distance to travel is significantly smaller. Apart from that, the penitentiary will provide extra employment on St. Eustatius. For these reasons, the development of a detention facility was anticipated in the ROP. The business area North of the airport has been indicated for this function. ManOWar 2 is situat-ed on this business area. Conclusion The SDP allows development of a penitentiary north of the airport. Based on the SDP, the amendment of the locations ManOWar 1 and ManOWar 2 to allow development of the peni-tentiary on the latter site is possible.

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5.2 Landscape

Assessment framework The ROP includes that the impact of the development on the landscape must be taken into account (art. 40.1). As far as the aspect of landscape is concerned, no other legislation or ruling applies. Assessment and conclusion Both sites lie at the foot of the hills in the direction of National Park Boven and have limited landscape value. Good landscaping is necessary for both areas to soften their rocky charac-ter. ManOWar 1 Future business development on ManOWar 1 will be visible in the landscape. Landscaping measures will contribute to soften the presence of future business development in the land-scape. ManOWar 2 On ManOWar 2, buildings will stand out only slightly in the landscape because of the area’s topography and the ridge at its south-west side.

Figure 5.1 Bird’s eye view of the plan area (position in the landscape)

5.3 Ecology

Assessment framework Article 40.1 of the ROP regulates that natural and ecological values are to be taken into op-timum account. St. Eustatius’ ecology regulations are closely linked to the international SPAW protocol of January 18, 1990. This protocol applies to special conservation areas and flora and fauna living in nature (Trb. 1990, 115) and constitutes a part of the March 24, 1983 Convention at Cartagena de Indias for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Trb. 1983, 152). Its principles are laid down in the BES Act Princi-ples for Nature Conservation. Assessment and conclusion ManOWar 1 and 2 The plan area lies at a great distance to both internationally recognized Important Bird Areas (IBAs) Boven and The Quill and as such will have no impact on these areas. For this amend-ment plan, desk research has been executed based on (air) photographs. Based on this re-

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search, it has been established that for both ManOWar 1 and ManOWar 2 will have no signifi-cant impact for the qualifying bird species of the surrounding IBAs or for other endemic spe-cies. The intended development will therefore also not have impact on special natural values. The zoning amendment therefore does not conflict with the BES Act Principles for Nature Conservation.

5.4 Businesses and environmental zoning

Policy and standardization In view of proper spatial planning, it is important to consider for environmentally sensitive functions such as living, the following: a proper environment for life and living can be guaranteed on site of these functions; the business activities and the environmental zone of the specific businesses are taken

into consideration. At present, St. Eustatius does not have legislation or policy for businesses and environmental zoning. To sufficiently consider the interests between businesses and sensitive functions in the zoning regulations, this plan includes Dutch legislation and regulations based on the VNG (association of Dutch municipalities) publication Bedrijven en milieuzonering 2009 (Business-es and environmental zoning, the 2009 edition). Assessment ManOWar 1 1. Impact of the new business area on the surrounding functions: In the ManOWar 1 vicinity in the present situation, there are no functions sensitive to nui-sance. The nearest house is at approximately 425 m from ManOWar 1. Therefore, the local houses have a proper environment for life and living. The plan area borders to the west on the business area with different types of businesses. These businesses are not to experience nuisance from new businesses in the plan area. Fur-thermore, the amended zoning to be detailed will connect to that of the surrounding grounds. In the future situation, the penitentiary (ManOWar 2) will be developed circa 100 m off of the future business development on the expanded business area (ManOWar 1). A penitentiary is a nuisance sensitive object. Businesses causing nuisance (odor, noise etcetera) will have to take the new development of the penitentiary into account. On ManOWar 1, businesses up to category 3.2 of the ROP Business List are allowed. This category has a maximum distance of 100 m to be observed, which creates an acceptable environmental situation. 2. Impact of surrounding functions on the new business area: The expansion of the business area is not a sensitive function. Surrounding functions there-fore will have no limiting effect on the new business area. ManOWar 2 1. Impact of the penitentiary on the surrounding functions: A penitentiary is also a potential nuisance causing object. A penitentiary has however not been included in the VNG-brochure. A penitentiary may well be compared to a hospital with respect to environmental zoning. The VNG publication Bedrijven en milieuzonering (Busi-nesses and environmental zoning) prescribes a distance of 30 m to a calm residential area with respect to noise nuisance. The closest nuisance sensitive functions (houses) are at a distance of approximately 200 m from ManOWar 2. Therefore the quality of life and living on site of the surrounding houses complies with the standards.

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A penitentiary is also a nuisance sensitive object. Developing a penitentiary may therefore have influence on business operations of present and future (nuisance causing) businesses on the business area. ManOWar 1 lies adjacent to the present business area. Development of the penitentiary on ManOWar 1 therefore by definition will limit business operations of present and future busi-nesses on the business area. In this respect, development on ManOWar 2 will render a sig-nificant improvement. In the new situation, the distance between the penitentiary and the future businesses on the business area will be approximately 200 m. 2. Impact of surrounding functions on the penitentiary A horticultural and an agricultural area are in the direct vicinity of ManOWar 2. The VNG pub-lication prescribes a distance of 30 m. The plan area is located at approximately 30 m from the horticultural and agricultural area, outside the prescribed distance. The horticultural and agricultural area therefore do not bar the intended development. Conclusion On site of ManOWar 1 and 2 and their surroundings, there is an acceptable living environ-ment. The amendment of ManOWar 1 and ManOWar 2 for the development of the peniten-tiary on the latter constitutes a significant improvement for the present and future business-es on the business area.

5.5 Air quality

Assessment framework At present, St. Eustatius does not have legislation or policy for air quality. In view of the altered status of St. Eustatius, as a special municipality within the Netherlands, the DCMR has established air quality standards for the Antilles. Table 5.1 Air quality standards

Substance Time-average Standards nitrogen dioxide (NO2) 1 year 40 μg / m³ 1 hour 200 μg / m³ fine dust particles (PM10) 1 year 20 μg / m³ 1 natural day 50 μg / m³ sulfur dioxide (SO2) 1 year 20 μg / m³ 1 natural day 125 μg / m³ 1 hour 350μg / m³ volatile organic compounds (VOC) 1 year 150 μg / m³ benzene 1 year 5 μg / m³

Assessment For other spatial development, St. Eustatius has had its air quality assessed2. This research indicates that on all residential areas on the island and all locations where people normally remain for a significant period of time, the Antillean air quality standards are met. ManOWar 1 The expansion of the business area will increase traffic movements with approximately 173 motor vehicles (mvt)/24 hours (weekday average). This includes a freight traffic percentage of 5%, since actual large trucks are sparsely present on St. Eustatius. The NIMB-tool shows that this increase in traffic movements will constitute an increase in the nitrogen value in the air of 0.23 µg/m³ and a fine dust increase of 0.06 µg/m³. The expansion of the business 2 “Air Quality NuStar Terminals NV, Statia”, Royal Haskoning, December 2011

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area therefore does not add significantly to the values of nitrogen dioxide and fine dust in the air. ManOWar 2 The penitentiary will increase will increase traffic movements with approximately 36 motor vehicles (mvt)/24 hours (weekday average). This includes a freight traffic percentage of 2%. The NIMB-tool shows that this increase in traffic movements will constitute an increase in the nitrogen value in the air of 0.03 µg/m³ and a fine dust increase of 0.01 µg/m³. The peniten-tiary therefore does not add significantly to the values of nitrogen dioxide and fine dust in the air. Conclusion The above assessments indicate that it is safe to conclude that the development’s possible impact on air quality does not bar the intended development. Therefore, the amendment plan does not require additional measures. This aspect will also be regulated in the environ-mental permit.

5.6 Soil

Assessment framework In the future, the Executive Council will establish a soil and water management plan, based on the BES Spatial Planning Act, to protect water, soil and water bottoms. At the moment, no specific policy applies. For proper spatial planning, it is desired that new functions do not cause soil pollution and that the present soil is appropriate for the intended use. For this, the Dutch Soil Protection Directive or Nederlandse Richtlijn Bodembescherming (NRB). Assessment and conclusion Considering the present use of soil on both sites, i.e. nature and agriculture, the soil is not expected to be significantly polluted. Further research – which is necessary for the building permit – will probably shortly indicate that the soil quality is sufficient for the intended development and that the aspect of soil will not bar the intended development.

5.7 Archaeology and cultural history

Assessment framework The Malta Convention aims at conservation and protection of archaeological values. As a result of this convention, the conservation of archaeological heritage is included in the bal-ance of interests for proper spatial planning, as are all other stakes in planning preparation. It is well known that the cultural heritage of St. Eustatius is one of the richest in the Carib-bean, for all periods. The ROP provides double zoning (Value – Archaeology) for those areas that have or are expected to have archaeological values (plantations, burial sites etc.) in order to protect these values in the case of possible development. The plan area does not have a double zone Value - Archaeology. Assessment Based on the historical map of St. Eustatius (1781), the expected value3 for archaeology for both sites for remains from that period is low. This is illustrated by figure 5.1, in which the location of the former plantation sites is visible. On these plantation sites, archaeological and cultural history values are to be expected. In the ROP, these areas therefore have a double zoning for archeology.

3 The chance of finding archaeological remains in a certain area.

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Figure 5.1 Historical map of 1781 and map with historic sites ManOWar 1 ManOWar 1 is not located on a former plantation complex (buildings); therefore the archaeo-logical and cultural history values are low. There are no further archaeological aspects to be taken into account for ManOWar 1. ManOWar 2 ManOWar 2 is, as ManOWar 1, not located on a former plantation complex (buildings), and therefore its archaeological and cultural history values are also low. The expected value for archaeology for finding prehistoric remains on the ManOWar 2 site is considered middle high. This especially holds for the lower part of the plan area. The reason for this is that this site is near a prehistoric site. In agreement with the St. Eustatius Center for Archaeological Research (SECAR), it is rec-ommended to execute archaeological research on the ManOWar 2 site by means of archaeo-logical mapping. During and after removal of the vegetation, a search will be executed for surface remains. Trial trenching is another method to be applied for searching for prehistoric remains on the site. Depending on the results of this research, suitable measures can be taken to prevent negative impact on the archaeological remains. Conclusion The expected value for historic remains on both sites is low. For ManOWar 2 a middle high expected value for prehistoric remains holds. For this site, archaeological research is recom-mended. Depending on the results of this research, (if necessary) suitable measures can be taken. The aspects of archaeological and cultural history do not have to bar the development of the plan.

5.8 Traffic

Assessment framework The developments must take into account that for the aspect of traffic, the infrastructure must suffice to support this development in an acceptable manner.

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Assessment ManOWar 1 Based on the CROW-tool4 for calculating traffic generation, the traffic generated by the ex-pansion of the business area has been calculated. Departing from a gross surface of approx-imately 1.4 hectares and location in a non-urban area, the traffic generation amounts to 171 motor vehicle movements per natural week day. Considering the low road traffic rate in the present situation and the limited traffic generation as a result from the expansion of the business area, the accessibility will not lessen. ManOWar 2 Based on the Dutch CROW-standards (Publication 272, 2008), the traffic generation has been calculated for a penitentiary for a maximum of 36 arrested persons/prisoners. Depart-ing from the standard for penitentiaries and the location in the rural area (96.9 mvt/natural week day per 100 prisoners), the traffic generation will amount to approximately 35 motor vehicle movements per natural week day. Considering the low road traffic rate in the present situation and the limited traffic generation as a result from the expansion of the business area, the accessibility will not lessen. Conclusion The aspect of traffic does not bar the development of the amendment plan.

5.9 Airport

Assessment framework For the airport international standards apply, based on the Chicago Convention. These have been translated in the Aviation Law BES and the Decision Aviation Supervision BES. Obstacle Limitation Surfaces (OLS) apply, as well as a safety zone at the end of the runway, the Run-way End Safety Area or RESA, amongst other reasons to prevent radar disturbance and for safety. For the OLS, building height restrictions apply. The RESA is the surface to both sides of the runway which has to be suitable for risk reduction for air craft in case of an overshoot an undershoot or runway excursion. Assessment ManOWar 1 lies at approximately 360 m off the runway. ManOWar 2 at approximately 350 m. For the southern part of both sites building height restrictions apply for the OLS. There are no restrictions regarding the RESA. Both sites are located on the long side of the runway. Because of these building height restrictions, there are no buildings allowed over 40 m high on both sites. The northern part of the sites do not have air traffic related building height restrictions. ManOWar 1 The maximum building height on ManOWar 1 is 10 m which is well within the OLS margins. ManOWar 2 The maximum building height on ManOWar 2 is 12.5 m which is well within the OLS margins. Conclusion The aspect of air traffic does not bar the development of the amendment plan.

4 http://www.crow.nl/nl/Online_Kennis_en_tools/Verkeersgeneratie/Rekentool.html

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5.10 External safety

Assessment framework At present, St. Eustatius does not have legislation or policy for external safety. To assess the development, the Dutch Bevi-standards for the PR (Plaatsgebonden Risico or site-bound risk were applied, even though these do not formally apply to St. Eustatius. The site-bound risk concerns the chance per year of a person residing continuously and un-protected in the vicinity of the risk source of losing his life as a result of an incident with the transport of hazardous substances. The different levels of the site-bound risks are being de-picted by risk contours (lines) surrounding the hazard source, with which the points with a similar site-bound risk are linked. The normative contour for a new development is 10-6,

which corresponds to a chance of one in one million years. Within that contour, Dutch legis-lation does not allow sensitive objects, such as residential areas, hospitals and large shop-ping centers and allows limited sensitive objects, such as businesses and company dwellings, only if there are valid reasons for that. Assessment In the vicinity of the plan area, a number of high-risk installations are situated. • Both ManOWar 1 and ManOWar 2 are in the vicinity of the St. Eustatius airport. Apart

from the building height restrictions, other planning restrictions apply for the area sur-rounding the airport, for the prevention of safety risks and noise nuisance. In the 75 m- obstacle limitation surface surrounding the runway, building is not allowed.

• NuStar is located to the north-west of the plan area. A external safety assessment has been conducted for this installation5. The results show that both sites are not located within the PR-contours.

• Furthermore, a safety zone of 1,000 m applies surrounding NuStar, see figure 5.2. For development within this safety contour it must have been proved that there is an ac-ceptable safety level.

• The sites are located near business operations located on the business area. These com-panies include businesses, such as gas storage, a container terminal and a sand pit. For these and other businesses a safety distance of maximum 100 m to residential areas is recommended to prevent odor, noise and air nuisance (source: St. Eustatius, Strategic Development Plan, dated October 22, 2010).

5 “Quantitative Risk Analysis NuStar Expansion project on St. Eustatius”, Royal Haskoning, December

2011

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Figure 5.2 Environmental contours (source: Strategic Development Plan (2010) ManOWar 1 • ManOWar 1 lies at a distance of approximately 360 m from the airport. This is well within

the obstacle limitation surface. The airport does not bar the expansion of the business area.

• ManOWar 1 is not located within the NuStar site-bound risk contours. • The plan area for the expansion of the business area lies at a distance of approximately

850 m from NuStar, within the safety zone. The additional research by DCMR into the group risk for NuStar shows that the criteria for the group risk are being met and that there is an acceptable safety level. The proximity of NuStar therefore does not bar ex-pansion of the business area. By amending the present zoning ‘Public Interest Use – Penitentiary’ (PU-P) to ‘Business Area’ (BA), the group risk on the ManOWar 1 site will probably not increase. On a busi-ness area, people are only present for a limited time frame and they are usually self-sufficient. This is not the case for a penitentiary; this is a sensitive object where vulnera-ble people are present for 24 hours a day. Rezoning ManOWar 2 to enable the peniten-tiary on this site will therefore be a considerable improvement for the sake of external safety.

• ManOWar 1 abuts the present business area and as such will probably be inside safety zones. The expansion of the business area is a limited sensitive object which will hardly increase the group risk for the present high risk installations. The presence of high risk installations therefore does not bar the expansion of the business area.

ManOWar 2 • The site intended for the penitentiary is at approximately 350 m from the airport. This is

well outside the obstacle limitation surface. The airport therefore does not bar the in-tended development.

• The NuStar site-bound risk contours do not overlap the ManOWar 2 site. • ManOWar 2 is at approximately 1,000 m from NuStar, on the edge of the safety zone.

The additional DCMR research into the NuStar group risk indicates that the group risk cri-teria are being met and that there is an acceptable safety level.

• ManOWar 2 is at approximately 200 m from the present business area and at approxi-mately 300 m from the present businesses. This is well outside the 100 m safety zone of

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present or future high risk installations. The presence of present or future high risk in-stallations do not bar development of a penitentiary.

Conclusion The conclusion is that the plan meets the policy and the standards for external safety are met. The aspect of external safety does not bar the development of the amendment plan.

5.11 Light pollution

Assessment framework and assessment ManOWar 1 The lighting to be applied on the business area will consist of regular street lighting. There-fore there is no case of light pollution. ManOWar 2 The walls and the open-air exercise and activities area will be lit. The lighting applied will have the regular street lighting level with a maximum of 20 lux. Light pollution as a conse-quence of the penitentiary is therefore not to be expected, moreover because of its location in the hills. Next to the regular lighting, the penitentiary will use spotlights, to be employed in the case of an escape. This will occur only incidentally. Light pollution as a result of the spotlights will not or hardly occur. Conclusion The aspect of light pollution does not bar the development of the amendment plan.

5.12 Water and erosion

Assessment framework In order for the building permit to be granted, it has to be proven that the initiative will not cause erosion. This requirement derives from ROP Art. 36.6. Assessment ManOWar 1 Assessment of the aspect of erosion by rain water and other forms of erosion by water will be executed for the building permit. ManOWar 2 In order for the building permit to be granted, research will be executed into the connection of the penitentiary to the water mains being constructed on St. Eustatius. Also in order to prevent erosion, methods for collecting, draining and infiltration of rain water will be re-searched. Conclusion For the time being, there is no reason to expect erosion to result from the zoning amend-ment. The actual assessment will be included in the building permit procedure.

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Chapter 6. Explanation to the zoning and the designations

The zoning being amended in this amendment plan concerns: • ManOWar 1: the zoning ‘Public Interest Use – Penitentiary’ is being amended to ‘Business

Area – 1’. Because the regulations differ in detail from the original ROP regulations, a new article is to be entered. Because the zoning ‘Business Area’ will remain applicable for the present business area, the zoning ‘Business Area – 1’ will not replace ‘Business Area’, however it will added to the ROP.

• ManOWar 2: part of this zoning will be amended from ‘Mixed Use – Business/Agriculture To be detailed’, to ‘Public Interest Use – Penitentiary 1’, which will allow development of a penitentiary. Because the regulations differ in detail from the original regulations in the ROP, a new article is to be entered. This will apply to the ManOWar 2 site and will replace ROP article 14.

The two new zoning areas will be explained below.

6.1 Business Area – 1

The Business Area – 1 zoning is based on the Business Area zoning as recorded in the ROP. Use The ‘Business Area – 1’ zoning renders the planning regulations for the development of new businesses on ManOWar 1. Business categories To the regulations for this zoning a Categorized Businesses List has been added as an ap-pendix (see ROP) in which each business category is listed for its environmental impact. The businesses with the least impact are listed in category 1. The businesses with the highest impact are listed in category 5. A higher category therefore implies a larger impact. Because of the vicinity of the penitentiary (at approximately 100 m), the ‘Business Area – 1’ zoning allows light and middle high businesses. This means that businesses categorized in 1 through 3.2 of the ROP Categorized Businesses List are allowed. These businesses apply a distance of 100 m from sensitive functions, such as a penitentiary. Construction The construction method has been included in the building regulations. Exemption authority The Categorized Businesses List contains a great number of types of businesses. Still, it may be the case that a business type has not been entered. If this is the case, the Executive Council may allow development of such a business by executing exemption authority, if it has been proven that this business will have the same environmental impact as businesses listed in the allowed categories. If this is the case, development of the business may be al-lowed. This, however, will require exemption authorized by the Executive Council.

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6.2 Public Interest Use – Penitentiary 1

The ‘Public Interest Use – Penitentiary 1’ zoning has been based on the ROP ‘Public Interest Use – Penitentiary’ zoning for ManOWar 1. Use The ‘Public Interest Use – Penitentiary 1’ zoning allows buildings for a penitentiary and for services for public order and security. Additional amenities are also allowed. These are paths, green areas, water courses, water bodies, pavement, gardens, terrains, parking facilities and public utilities. Construction • Construction of buildings is allowed anywhere on the zoning area, taking into account

that the maximum building percentage is 70%. This building percentage has been rec-orded on the plan area map. The intended building surface is well within this percentage.

• Buildings shall have a maximum building height of 12.5 m. This has also been recorded on the plan area map. The building height differs from the building height which applied to ManOWar 1 based on the ROP zoning ‘Public Interest Use – Penitentiary’. Raising the maximum building height by 2.5 m is required to compensate for the differences in height of the site, the design of the penitentiary and the measuring method, also see level.

• A building shall have a maximum of two floors, excluding the pitched roof. • A building shall be built at least 10 m from the plot boundary. • The building height for fences to demarcate plots and terrains shall be 2 m if not located

between the building and the road. The building height for fences to demarcate plots and terrains if located between the frontage and the road shall be 1.5 m maximum. Excep-tions are fences to keep arrested persons and prisoners within the penitentiary grounds. For these structures a maximum building height of 5 m.

Level To measure the building height, the level (or elevation) is considered the base line. In case of ManOWar 2, the level is determined by the average height of the terrain (art. 1.18 c.). The largest difference in height on the ManOWar 2 terrain is 14 m. The average height of the terrain is therefore 7 m height difference from the lowest part of the area. Considering the building height of 12.5 m, a building of at the most 5.5 m is allowed on the highest part of the area, measured from ground level (12.5 m – 7 m = 5.5 m above ground level). Exemption authority The zone contains an exemption regulation to allow buildings to be constructed closer to the plot boundary. To allow this, the Executive Council has to authorize exemption. The Execu-tive Council may do so, if they decide the exemption will not affect the possibilities for use of the adjacent grounds. A building may not be built closer than 5 m to the plot boundary.

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Chapter 7. Feasibility

7.1 Economic feasibility

ManOWar 1 There are as yet no initiative developers for ManOWar 1. Future initiatives are to be devel-oped at the developer’s own risk and expense. When developers present themselves, agreements will be made between the developers and the St. Eustatius Public Entity regarding costs for the St. Eustatius Public Entity, such as planning compensation and other possible measures. ManOWar 2 The site ManOWar 2 will shortly be in ownership of the Government Buildings Agency (Rijks-gebouwendienst). The building plan will be realized under the Government Housing Regime (Rijkshuisvestingsstelsel) and will be financed through a loan facility of the Government Buildings Agency with the Ministry of Finance. Thereby the building plan is economically fea-sible. Agreements will be drawn up between the applicant and the St. Eustatius Public Entity, in order to otherwise cover the possible costs for the St. Eustatius Public Entity. These agree-ments will enter into possible planning compensation and measures, amongst other matters for landscaping and archaeology.

7.2 Social feasibility

Prior to adoption of this amendment plan by the Executive Council, the draft amendment plan – as is established in the ROP – will be made available for public inspection during fif-teen days. During this period all will have the opportunity to submit objections. The period for public inspection will be announced in the regular Dutch and English daily newspapers published on the island. At the moment that the amendment plan is adopted, the building permit may be issued.

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Regulations

Article 8a Business Area - 1

8a.1 Zoning definitions a. The zoning area ‘Business Area’ is to be used for businesses, service buildings, offices,

technical schools and buildings for storage and transshipment and waste transport, ca-ble- and TV-stations, radio stations and restaurants. The businesses allowed are those listed in Categories 1 through 3.2 of the List of Categorized Businesses (Bedrijvenlijst) registered in Appendix 1 of the ROP. Present businesses of a higher Category are also al-lowed;

b. A business area covers more than the buildings listed above. A business area also has roads, paths, green areas, water courses, water storage, pavement, gardens, terrains, parking facilities and public utilities. These functions are also allowed within the zone ‘Business Area’.

8a.2 Building regulations Building in the zoning area ‘Business Area’ is restricted by certain regulations. These are: 8a.2.1 Buildings a. a building shall have:

1. a building height as registered in the indication ‘maximum building height (m)’; 2. a maximum of two floors (either with or without a pitched roof); 3. to be built at least 3 m from the plot boundary; 4. to be built at least 7 m from a road, or if there is no road, at least 5 m from the plot

boundary to the front of the building; b. the total building surface may not exceed the percentage registered in the indication

‘maximum building percentage’ of the zoning area; c. deviating from the regulations a and b, buildings are allowed to be built according to the

present situation, only if the indicated heights, distances and surfaces are restrictive compared to the present situation.

8a.2.2 Other structures a. A fence to demarcate plots and terrains shall have:

1. a building height of a maximum of 2 m if at the back of a building; 2. a building height of a maximum of 2 m if next to a building and not be closer to a

road than the frontage of the building facing the road or the extension of this front-age;

3. a building height of a maximum of 1.5 m if between a road and the frontage of a building or the extension of a building.

b. other structures shall have a building height of a maximum of 5 m. 8a.3 Exemption from building regulations 8a.3.1 Exceptions In certain cases it is allowed to build: a. higher than the indicated building height;

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b. closer to the plot boundary or to a road than the distances indicated. 8a.3.2 Conditions Exemption to enable the above mentioned exceptions has to be authorized by the Executive Council. The Executive Council is only able to authorize exemption, if no disproportional damage is done to: a. the street- and townscape; b. the environmental situation; c. traffic safety; d. the possibilities for use of or the views from the adjacent grounds. The exemption for higher building may not result in a building height of more than 3 m over the maximum allowed building height. 8a.4 Exemption for businesses 8a.4.1 Non-categorized businesses The allowed businesses have been registered in the categories 1 through 3.2 of the List of Categorized Businesses in Appendix 1 of the ROP. If a business is not listed, this business may still be allowed if necessary. This requires exemption authorization by the Executive Council. This exemption may only be issued if the impact on the environment of the business concerned is to be considered equal to that of businesses listed in Categories 1 through 3.2. 8a.4.2 Higher-categorized businesses The Executive Council may authorize exemption for businesses listed in a higher category in the Categorized Businesses. This is allowed only if research shows that the impact on the environment of the business concerned by its working method, production processes, other methods or utilities is equal to that of businesses listed in Categories 1 through 3.2. 8a.5 Utilization regulation Use (whether or not by third parties) of buildings, other structures and terrains conflicting with the zoning and the regulations is prohibited. The Executive Council shall authorize ex-emption of this prohibition if so requested, only if there are no pressing reasons to restrict the most efficient use.

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Article 14a Public Interest Use - Penitentiary 1

14a.1 Zoning definitions a. The zoning area 'Public Interest Use - Penitentiary' is to be used for a penitentiary and

buildings for public order and security; b. Apart from the abovementioned buildings, the associated utilities are also allowed. These

are paths, green areas, water courses, water bodies, pavement, gardens, terrains, park-ing facilities and public utilities.

14a.2 Building regulations Building in the zoning area ‘Public Interest Use – Penitentiary 1’ is restricted to certain regu-lations. These are: 14a.2.1 Buildings a. a building shall have:

1. a maximum building height as is registered in the indication ‘maximum building height (m)’;

2. a maximum of two floors (either with or without a pitched roof); 3. to be built at least 10 m from the plot boundary;

b. the total building surface may not exceed the percentage registered in the indication ‘maximum building percentage’ of the zoning area.

14a.2.2 Structures a. a fence to demarcate plots shall have:

1. a building height of a maximum of 2 m if at the back of a building; 2. a building height of a maximum of 2 m if next to a building and not be closer to a

road than the frontage of the building facing the road or the extension of this front-age;

3. a building height of a maximum of 1.5 m if between a road and the frontage of a building or the extension of a building;

b. other structures than fences shall have a building height of a maximum of 5 m; c. an unscalable fence, i.e. for keeping persons on the fenced terrain, shall have a building

height of maximum 5 m. 14a.3 Exemption from building regulations 14a.3.1 Exceptions In certain cases a building is allowed to be built closer to the plot boundary than the indicat-ed distance. 14a.3.2 Conditions Exemption to enable the above mentioned exceptions has to be authorized by the Executive Council. The Executive Council is only able to authorize exemption, if no disproportional damage is done to the possibilities for use of or the views from the adjacent grounds. A building may be built at least 5 m form the plot boundary. 14a.4 Utilization regulation Use (whether or not by third parties) of buildings, other structures and terrains conflicting with the zoning and the regulations is prohibited. The Executive Council shall authorize ex-emption of this prohibition if so requested, only if there are no pressing reasons to restrict the most efficient use.

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