The Tribune

• 'Nothing to prevent restaurant operating there'

• Hotel objectors had chance to buy themselves

• Atlantis: Approval 'unlawful' - no public meeting

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The only firm restriction governing how the disputed ex-Scotiabank location on Paradise Island can be used expired almost 50 years ago in 1975, Tribune Business can reveal.

The so-called "restrictive covenants", which have been obtained by this newspaper, show the site acquired by the Wendy's and Marco's Pizza franchise owner was limited to use as a bank branch and related offices for only a five-year period dating from the original conveyance of the property. The conveyance is dated November 9, 1970, which means the restriction expired more than 47 years ago at the end of 1975.

The revelations shed new light on the battle initiated by Atlantis and its fellow Paradise Island resorts and developers to bar Aetos Holdings, the Wendy's and Marco's Pizza owner, from converting the former Scotiabank branch - which it has acquired and now owns - into a restaurant destination featuring both brands.

The mega resort has teamed with the Ocean Club and Comfort Suites, as well as Hurricane Hole's developer, Sterling Global, in a bid to overturn the permission granted by the Town Planning Committee for Aetos Holdings to "change the use" of that location from a bank to fast-food restaurants. However, the "restrictive covenants" governing how the location is to be used do not appear to provide an iron-clad case by themselves for that decision to be overturned.

One well-placed source, speaking with knowledge of the covenants, told this newspaper: "There's nothing there to prevent a restaurant from operating there. The only restriction placed with regard to use of the property was in that 1970 conveyance when, for the first five years, it had to be a bank branch."

The November 9, 1970, conveyance's restrictions stipulate: "No trade manufacture or business other than the development of a bank branch and professional offices relating to the business of banking shall be carried out on the said hereditaments for a period of five years from the date hereof."

That, based on the documents seen by this newspaper, appears to be the only 'hard' or immovable restriction that would have caused the Wendy's and Marco's significant problems - and it does not now exist. Other restrictions set out in the 1970 conveyance relate to the height of the building; a prohibition on digging a well; how much of the site is to be covered by buildings; the setback from the boundary lines; and dedication of 15 percent of the location to landscaping.

These restrictions were updated in a subsequent 1984 document. Besides the well prohibition, these also retained the requirement for the owner to obtain the vendor's permission to erect a "billboard hoarding or other advertising device", while they are also forbidden from doing anything which "may be or will become an annoyance or nuisance to the owners and occupiers or any adjoining or neighbouring lot".

The 1984 document was signed by the late George Myers in his capacity as president of Paradise Island Ltd. Tribune Business was told that the successor to that corporate entity is one of Atlantis' numerous subsidiaries, and thus the mega resort would have possessed both the restrictive covenants and related conveyances - and been aware of the restrictions - when Scotiabank placed its former branch on the market for sale.

While the "annoyance or nuisance" restrictive covenant is subjective, it was cited by Atlantis and its subsidiaries in arguments to the Subdivision and Development Appeal Board as to why the original Town Planning Committee "change of use" approval should be overturned.

"The property on which [Aetos Holdings and its affiliates] wishes to install a Marco's Pizza and Wendy's restaurant contains a restrictive covenant against doing anything which may be, or become, an annoyance or nuisance to the owners or occupiers of any adjoining or neighbouring lot," Atlantis argued.

"A change of use which results in increased vehicular and pedestrian traffic congestion, increased noise, unpleasant odours and visible waste would be a clear annoyance or nuisance not only to neighbours on the adjoining lot but also to the entire Paradise Island community."

The mega resort also highlighted the restrictions pertaining to maximum building size, the minimum setbacks and parcels of land to be reserved for walkways and landscaping, arguing that Aetos Holdings had failed to submit detailed plans and architectural renderings as to how these elements would be preserved and complied with.

Aetos Holdings, though, is understood to be arguing that the concerns about increased traffic volumes, congestion and parking shortages are overblown. With few persons likely to drive over Paradise Island bridge from mainland New Providence to visit Wendy's or Marco's Pizza, its target customer base for those outlets will be the thousands of hotel and other workers, plus tourists, located within walking distance.

The former Scotiabank branch occupies a key strategic location at the junction of Harbour Drive and Paradise Beach Drive. Tribune Business was told that copies of the site's restrictive covenants were provided to all interested purchasers, who were all advised to do their research and consult their respective attorneys to ensure the planned use complied before making an offer.

This newspaper was also informed that Atlantis and some of the others seeking to now bar Aetos Holdings have little cause for complaint. Atlantis, which was said to have been approached first by Scotiabank as a potential purchaser, did not act despite possessing - and knowing of - the restrictions on that location.

Well-placed contacts, speaking on condition of anonymity, also disclosed that Sterling Global, the Hurricane Hole developer and another objector, actually did make an offer to acquire the former bank branch but it did not come close to meeting Scotiabank's valuation.

"Each of those people now complaining about it had an opportunity to purchase that property, and revise the restrictions, but now they're telling Wendy's and Marco's that they cannot do 'x', 'y' and 'z'," one source said. "To me, it reeks of bully in the playground. You can't come in after the fact and bully your way through it. To me, if you're going to block it, you should have bought it, changed the restrictive covenants and put it back on the market. There was a lot of interest in it."

Atlantis has denied that its stance is motivated by concerns about the competition that Wendy's and Marco's Pizza may pose, but several persons have pointed to the recent arrival of Shake Shack, the burger eatery, among the resort's restaurant options.

"It's OK for Atlantis to open up this restaurant, and have no objections from people around them, but not Wendy's," one asked. "It's OK for Dunkin' Donuts to open up a restaurant across the street from Atlantis and get permission to expand to double the size?"

Atlantis, in its appeal submissions, argued that allowing Aetos Holdings to go ahead will will create "a potential obstacle for planned luxury resort and residential development" on Paradise Island. It added that such projects are planned by itself, Four Seasons (the Ocean Club) and Sterling Global, Hurricane Hole's developer.

However, in supplemental arguments, it sought to attack the Town Planning Committee's decision on procedural matters by arguing that 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."

Atlantis added that the failure to include any plans, reports or other documents from Aetos Holdings in the appeal record "is another indicator" that the information provided by the latter was "woefully inadequate" and that Town Planning should not have given its approval.