The Tribune

• Former Scotia branch permission overturned

• ‘Technicality’ to only ‘delay’ fast food brand

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Wendy’s and Marco’s Pizza operator last night asserted it has not abandoned its Paradise Island ambitions despite the planning appeals board overturning the approvals previously granted for the former Scotiabank site.

Gail Lockhart-Charles KC, attorney for the Aetos Holdings affiliate behind the restaurant “change of use” application, told Tribune Business the decision had merely “delayed” her clients plans as it now requires them to go back before the Town Planning Committee for a full public hearing.

She argued that the Subdivision and Development Appeal Board, in yesterday’s verdict, had overturned the preliminary “change of use” approval from the Town Planning Committee on a “technicality”. Pointing out that the Wendy’s/Marco’s Pizza application was heard in March 2022, when COVID restrictions were still in effect, she said the earlier permission was set aside due to Town Planning’s failure to hold a public hearing or carry out adequate public consultation.

Mrs Lockhart-Charles, in a statement sent to this newspaper, said Aetos Holdings and its principals, Chris and Terry Tsavoussis, are not giving up on their Paradise Island restaurant plans despite yesterday’s reversal. “Our client’s brands, Wendy’s and Marco’s Pizza, share a common goal in wanting to provide hot quality food using the best ingredients and served with excellent service. Their success is the result of doing things the right way,” she said.

“Wendy’s has demonstrated an unwavering commitment to serve fresh food, at a fair price, in a comfortable atmosphere. They are a global family brand built on values of quality, service and always strive to create joy and opportunity in the communities they serve. Two beautiful and modern restaurants are in the works that will make everyone proud on Paradise Island, providing a place where guests can get quality hamburgers made from fresh beef at Wendy’s and enjoy quality pizza from Marco’s Pizza.

“The Town Planning Committee had previously granted approval to Wendy’s for its Paradise Island location. Unfortunately, the application was heard in March 2022 when COVID restrictions were still in place with regard to public meetings, and it has been held that the Town Planning Committee did not carry out adequate public consultation, so the approval has been set aside on this technicality and for no other reason,” Mrs Lockhart-Charles added.

“This technicality has delayed the process, as there must now be a public hearing. Wendy’s welcomes the public hearing and looks forward to sharing with its customers and the public its exciting plans for the development of its Paradise Island location.”

The appeal board’s ruling will likely delight Atlantis and the other Paradise Island hotels that had united in opposition to Aetos Holdings’ plans and sought to block its efforts to convert the former Scotiabank (Bahamas) branch into a restaurant destination for its Wendy’s and Marco’s Pizza brands.

Atlantis had teamed with fellow hotels, the Ocean Club and Comfort Suites, plus Hurricane Hole’s developer, Sterling Global Financial, as well as the Paradise Island Tourism Development Association in a bid to appeal the original Town Planning Committee approval on the basis that converting the bank into fast-food restaurants would create “a potential obstacle for planned luxury resort and residential development”.

The mega resort added that such projects are planned by itself, Four Seasons (the Ocean Club) and Hurricane Hole’s developer, and allowing the presence of Wendy’s and Marco’s Pizza will cause “incongruence with the idyllic setting of Paradise Island” and “erosion of the natural, scenic and aesthetic environment”.

However, none of these grounds ultimately swayed the appeal board’s decision. Describing the verdict as a “testing” one, it added: “The appellants [Atlantis and the hotels] jointly challenge the decision under appeal on the basis that same is irrational/unsustainable due to the congestion of traffic, environmental concerns, parking, impact on luxury of the island. Further challenges relate to covenant challenges and decisions going against the wishes of residents and business owners on Paradise Island.

“What, however, has concerned the Board on this appeal most is the position advanced that there was no application in accordance with the Planning and Subdivision Act. The public hearing was not consistent with the Planning and Subdivisions Act or, alternatively, if the hearing was in fact a public hearing it was not conducted in accordance with settled legal principles.”

The appeals board added that compliance with the processes and procedures set out in law by the Planning and Subdivision Act was vital to obtaining the necessary approvals or otherwise such permissions would be rendered

“meaningless”. And it noted that public hearings and consultations “must be fair”, with all relevant drawings, information and materials provided to interested parties so that they can give informed feedback.

There was “no evidence” that notice was given of a public hearing, although many of Aetos Holdings’ opponents were invited privately and did attend the hearing. “In addition, the nature of the information being requested, such as drawings, signage etc, are all information that ought to have been available in advance for consideration and comment by those being consulted,” the appeals board said.

“Having concluded that for such approval to stand there must be an application in accordance with the Planning and Subdivisions Act and public consultation as aforesaid, and same not having taken place, the appeal is allowed and the decision is therefore set aside.....

“[It] does not appear that an adequate opportunity was afforded to all parties to receive materials and make representations before a decision was made by the Town Planning Committee and this is fortified by the lack of documentation contained in the record of appeal provided.” The appeals board said Aetos Holdings is free to appeal its findings to the Supreme Court, and made no decision or findings on the other grounds of appeal raised.

The former Scotiabank branch occupies a key spot at the junction of Harbour Drive and Paradise Beach Drive. Drivers coming on to Paradise Island reach it before they get to Atlantis, Hurricane Hole and any of the other resorts, while persons exiting via the off-bridge also have to pass it. It is also within walking distance for both the thousands of staff and tourists at Paradise Island’s hotels, giving any fast food operator a lucrative and large market to tap into.

Atlantis, in appeal documents, said neither itself nor any of its subsidiaries had seen the original application for “change of use” from a bank branch “to a fast food restaurant location, namely to be used for Marco’s Pizza and Wendy’s restaurants”, that was submitted to the Town Planning Committee on October 26, 2021.

The planning authority gave preliminary approval for the change on March 29, 2022, prompting Atlantis to lodge its notice of appeal on April 20, 2022. It argued that the decision “was made with insufficient merit and regard to the adverse impacts on residents and commercial operations on Paradise Island”, with the negative impacts including increased traffic congestion and parking demand on Paradise Island.

Where Atlantis succeeded was its attack on the Town Planning Committee’s decision via procedural matters by arguing it was “unlawful” on the basis that no public consultation had been held. Arguing that their had been non-compliance with “the record of appeal”, as several documents required by law had not been provided, Atlantis said “change of use” applications are not mentioned in the Planning and Subdivisions Act 2010.

Regardless, the mega resort argued that “in any event, no matter what type of application for development is made”, a public hearing was mandatory before the Town Planning Committee reached its decision.”It is now apparent that no public hearings were held,” Atlantis said. “The meeting held by the Town Planning Committee on March 15, 2022, was not a public hearing.

“Whilst it is appreciated that [the Atlantis subsidiaries] were notified of and allowed to attend the meeting, that notification and attendance were not sufficient” to qualify as a public hearing. No notice of such a hearing, and/or informing the public it was being held, were included in the record of appeal.

“As a result, it is now submitted that the absence of any public notice, and therefore of any public hearing, is a further reason why the Appeal Board ought to overturn the decision of the Town Planning Committee,” Atlantis said. “Providing an opportunity for public input is a mandatory step that the Town Planning Committee must take before making a decision in any application for development.

“The importance of holding a public hearing cannot be underestimated. The public ought to have an opportunity to be notified and consulted regarding any development within their community. This was not done in the instant case... Accordingly it is submitted that the Town Planning Committee’s decision in the instant case to grant preliminary support of application was unlawful.”