The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Wendy’s yesterday hailed the planning authorities’ rejection of Atlantis’ appeal as “paving the way” to finally develop its new Paradise Island restaurant that has been delayed for “several years”.

Gail Lockhart-Charles KC, attorney for Aetos Holdings, the fast-food chain’s Bahamian franchisee, said in a statement issued on her client’s behalf that support for Wendy’s mobile kitchen had been “phenomenal” while it awaited the outcome of the planning challenges to its redevelopment of the former Scotiabank branch site.

“Wendy’s is very pleased that the appeal filed by Atlantis challenging the Wendy’s & Marco’s Pizza Town Planning permission has been dismissed, clearing the way for Wendy’s to construct its beautiful new restaurant on Paradise Island on the site of the old Scotiabank building,” she said.

“Wendy’s has been operating its state-of-the-art Wendy’s-branded mobile kitchen while the Atlantis appeal was running its course. The support for the mobile kitchen has been phenomenal.

“Now that the appeal has finally been dismissed, Wendy’s is delighted that it can move forward with its plans to renovate the former Scotiabank Paradise Island site that it purchased several years ago, and constructing its beautiful new Bahamian-owned and operated restaurant on the premises.”

Tribune Business revealed yesterday how 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, totally rejected all the opposing arguments put forward by Atlantis and other hotels including the absence of a traffic impact study and non-existent land use plan for Paradise Island.

The Appeals Board found the restaurant, which is expected to involve a $3m investment and create 75 full-time construction jobs and between 100 to 125 permanent full-time jobs once completed, “does not offend” land use restrictions and is “compatible” with the surrounding area and nearby businesses.

Aetos Holdings, whose principals are Chris and Terry Tsavoussis, has always believed that the main reason Atlantis and other Paradise Island resorts have fought so vigorously against the proposed restaurant’s presence is because of the competitive threat it poses to their own dining and food and beverage operations.

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, not to mention the area’s residents. Wendy’s and Marcos Pizza’s offerings will also likely be competitively priced compared to many Paradise Island rivals.

Tribune Business previously revealed that both Atlantis and another Paradise Island developer, Sterling Global, the latter of whom is transforming the former Hurricane Hole into Paradise Landing, both had chances to acquire the former Scotiabank property before Aetos Holdings. Atlantis did not move, while Sterling’s offer is understood to have been rejected by the bank because it was too low.

It now remains to be seen whether Atlantis, Sterling and the Paradise Island Tourism Development Association (PITDA), which represents the likes of the Ocean Club and Comfort Suites, will seek to challenge the Appeals Board verdict in the Supreme Court following the comprehensive rejection of their case.

Their opposition to-date is understood to have cost Aetos Holdings significant time and money, but the fast food group remains determined to prevail and will likely fight against any further challenges until the bitter end.

Atlantis and its fellow resorts had put forward multiple grounds of appeal. They 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 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.

However, 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.” 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.