The Tribune

By NEIL HARTNELL 

Tribune Business Editor

nhartnell@tribunemedia.net

PLANNING authorities yesterday dismissed the appeal by Atlantis and other major resorts seeking to block Wendy’s Paradise Island restaurant by finding it “does not offend” land use restrictions.

The Subdivision and Development Appeal Board, in upholding the Town Planning Committee’s go-ahead for the fast food chain and its affiliated Marco’s Pizza brand, rejected all the arguments put forward by the mega-resort and other hotels including the absence of a traffic impact study and non-existent land use plan for Paradise Island.

Atlantis declined to comment on a verdict which also agreed with the Town Planning Committee’s October 2023 finding that the proposed restaurant is “compatible” with the surrounding area and nearby businesses. It remains to be seen whether the hotel, and others such as Sterling Global, the Hurricane Hole developer, will now challenge the Appeal Board’s finding before the Supreme Court.

None of the other parties to a verdict, which has been obtained by Tribune Business, could be reached for comment before press time.

Atlantis, Sterling and the Paradise Island Tourism Development Association (PITDA), which represents the likes of the Ocean Club and Comfort Suites, put forward multiple grounds of appeal including alleged procedural and application irregularities.

They also claimed “there was a failure to consider or receive traffic studies and/or assessments” on the impact the Wendy’s and Marco’s Pizza restaurants would have, plus the “disregard of lack of a land use plan, zoning bye-laws or transparent, objective development for the property area”.

Further objections cited by Atlantis and its fellow resorts included “the standard of clientele, traffic congestion, parking demands, obstacles for luxury development... and disregard for the views of [Paradise Island] residents at large”, with the general sentiment that Wendy’s and Marco’s Pizza would devalue Paradise Island’s image and status as a high-end tourism destination.

Describing the appeal as “round two”, given that it had previously sent Wendy’s application for site plan approval back to the Town Planning Committee for further consideration due to lack of consultation and failure to comply with the process set out in the Planning and Subdivision Act, the Appeals Board said no such criticism could be levied this time.

While voicing concern over the “lack of participation” in the appeal proceedings by the Department of Physical Planning, given that it was named as the first respondent, the Appeals Board knocked down the Paradise Island resort industry’s arguments one by one.

“While objections were made based on the lack of a traffic study, the same is not a mandatory requirement under the terms of the Planning and Subdivision Act and or Planning and Subdivision Regulations and, therefore, despite protest, the Board sees no reason on the basis of the intended use of the property that the lack of one should amount to the setting aside of the decision,” the Appeals Board said.

“This point may have been more materially considered if the report which was said to have been commissioned by an appellant was provided to the Board. However, absent more, the failure to consider same does not in the Board’s view rise to the level of vitiating the approval.”

As for PITDA’s argument that the lack of a land use plan and zoning bye-laws for Paradise Island resulted in the Town Planning Committee acting unlawfully, and in violation of the Planning and Subdivisions Act 2011 when granting site plan approval, the Appeals Board said it was guided by the legal expression that “the law does not compel the impossible”.

On the land use plan, it added: “Such a plan cannot be regarded as one does not exist, while it is extremely preferable that one is promulgated post haste.” In other words, the Government and its relevant ministries and agencies - especially the Ministry of Works - need to take note.

The Wendy’s and Marco’s Pizza restaurant will be located at Paradise Island’s former Scotiabank branch location at the junction of Harbour Drive and Paradise Beach Drive. Turning to the site itself, the Appeals Board confirmed that restrictive covenants determining what it could be used for have long expired.

“Having reviewed the restrictive covenants in the title documents of the proposed site, the intended use of the proposed site for the restaurants does not, in the Board’s view, offend the existing restrictive covenants,” it said.

“Moreover, and in any event, having regard to the surrounding fast food businesses and the indication that there will be no drive-through services this use does not seem incompatible once the conditions imposed by the approval are met. Those conditions relate to the erection of signs, billboards and advertising devices at the site.

The only modification made by the Appeals Board was to clarify that the Town Planning Committee has granted preliminary, as opposed to final, site plan approval as the law requires the former to be issued first before the latter can be granted. Wendy’s still has to obtain final site plan approval.

The verdict leaves Wendy’s clear to proceed with its Paradise Island plans unless a further legal challenge is mounted. 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.

The respective home-owners associations for Ocean Club Estates and Ocean Club Residences and Marina, which collectively purport to represent more than 200 property owners, had also voiced their opposition to the Wendy’s/Marco’s Pizza dual restaurant on the basis that the project does not fit with Paradise Island’s upscale image and will adversely impact their property values.

A letter, signed by Paolo Garzaroli as Ocean Club Estates president, and Mark Newman as Ocean Club Residences chair, said: “We represent more than 200 homeowners and condo owners on Paradise Island, which is the vast majority of the people who have made their homes on Paradise Island and who are directly impacted by the pending decision of the Town Planning Committee.

“Our members strongly object to the proposed change in use of this property to make it fast food restaurants.” The October 12, 2023, letter, addressed to Charles Zonicle, director of physical planning, cited fears that the Wendy’s/Marco’s Pizza location will drive increased traffic, congestion and “loitering” compared to Scotiabank. “This will create nuisance and possibly hardship for members of the community,” they wrote.