The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The developer behind a controversial Lyford Cay condominium complex yesterday pledged to “move forward” with the project despite several more regulatory hurdles being imposed.

Eastmor Properties, headed by Michael Dingman’s son, David, must now also obtain a Town Planning Committee order “discharging the restrictive covenants” that prevent the development of such complexes at that site plus obtain the necessary International Persons Landholding Act permits.

These conditions were added by the Subdivision and Development Appeals Board in a Friday, October 20, ruling, which elected not to “quash” the original preliminary site plan approval in favour of imposing extra regulatory obstacles.

These are in addition to the previous Town Planning Committee stipulations which, apart from reducing the project’s height by one-third from nine storeys to six storeys, and the number of units from 72 to 50, also required a Traffic Impact Analysis that investigated “the viability of a second entrance from Western Road” and a Certificate of Environmental Clearance (CEC) from the environmental regulator, the DEPP.

However, Eastmor Properties, in a statement issued to Tribune Business, said it still plans to proceed with the development despite the likely extra cost and time incurred in meeting all these conditions to obtain full site plan approval.

“Eastmor Properties, the developer of a condominium site at Lyford Cay, thanks the Subdivision Development and Appeal Board for its deliberations and decision to defeat the appeal by the Lyford Cay Property Owners Association (1971) Limited and others,” the developer said.

“The Board agreed with Eastmor that the approval of the Town Planning Committee should be upheld and added two conditions to the Town Planning Committee approval.

Eastmor Properties, working with the community and regulators, will continue its move forward to developing and building a condominium complex that highlights Bahamian design and construction, promotes island-style living, and includes climate friendly, state-of-the-art features.”

Meanwhile, the Subdivision and Development Appeal Board, also backed calls by attorneys representing the Lyford Cay Property Owners Association that “promulgation” of the long-promised Land Use Plan for each Bahamian island “would be beneficial for all development applications”. These plans were required by the Planning and Subdivisions Act 2010 but have yet to emerge some 13 years later.

The Appeal Board, in its ruling, dismissed arguments that public consultation on the Eastmor Properties project was “fatally and/or fundamentally flawed”. While agreeing that more relevant documents could have been made available, the Board said that while the process “could have been improved upon, the imperfections fell just short of justifying interference”.

It also rejected the contention by the Lyford Cay association and others that there was “a lack of reasons” contained in the Town Planning Committee’s original decision, or that pre-application consultation had taken place only with Keenan Johnson, the Town Planning Committee’s chairman, rather than the Department of Physical Planning.

The Board added that the latter would have been “incorrect” if it had occurred, but found this was “not in and of itself to warrant interference” because there was subsequently full public consultation and the decision was reached by the Town Planning Committee’s full membership.

“Notwithstanding the foregoing, where the Board sees strength in the appellants’ arguments is the application for approval appears to wrongly indicate that there are no restrictive covenants in respect of the lots prohibiting the intended development,” the Board added.

“The Board accepts the appellants’ arguments that the approval under appeal appears to be contrary to the restrictive covenants presently prevailing and there is no evidence that same have been discharged or the permitted use of land has been changed.”

The Appeal Board also found that “weighing against the Town Planning Committee’s decision is the inconsistency with the land use permitted under the International Persons Landholding Act, which presently provides on each conveyance that the lots are for use ‘to construct a single family dwelling’” and not a condo complex.

As a result, it ruled that Eastmor Properties cannot receive final site plan approval until the restrictive covenants and International Persons Landholding Act limitations are resolved. “The Board is not satisfied that the appropriate course of action is to quash the approval. However, same cannot stand absent variation,” it ruled.

As a result, the extra conditions were added to those imposed by the Town Planning Committee in its original site plan approval of August 23, 2022. There was widespread speculation, none of which could be proven or confirmed, during last summer’s Town Planning hearings that the project was targeted at providing accommodation for FTX’s expatriate workforce.

Allyson Maynard-Gibson KC, Eastmor Properties attorney, and Jimmy Mosko, its contractor, also held the same roles with FTX - the latter for construction of its now-abandoned West Bay Street headquarters.

It is possible too much was being read into these similarities, although Eastmor Properties had seemingly made no previous effort to develop a property it first acquired on March 5, 1997 - some 25 years before last summer’s Town Planning hearings.

Documents filed for the subsequent appeal also revealed that the Town Planning Committee last August appeared to have either rejected, or ignored, advice from Jehan Wallace, the Department of Physical Planning’s chief physical planner, which called for the condo development’s height to be reduced even further to just three storeys - a 50 percent reduction on what was ultimately approved.

Ms Wallace, in an August 23, 2022, paper submitted to the Town Planning Committee noted that some 182 of the 190 written comments received by the Department as part of public consultation “outlined various reasons of opposition to the project and request that the Committee refuse the application”.

Noting that the Department of Physical Planning had visited the project site at Hibiscus Drive West, she added: “Based on all the information provided, the Department does not recommend approval for the proposed nine-storey, 72-unit multi-family development. It is an overdevelopment of the site and is out of scale and character for the proposed neighbourhood....

“The Department recommends a density of 30 persons per acre or 50 units in total contained in buildings no more than three storeys in height. In addition to the submission of a revised plan that adheres to the above recommendations, a Traffic Impact Assessment and Certificate of Environmental Clearance (CEC) is required for the project.” The latter recommendations, though, were taken up.