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Wendy’s PI approval ‘void’ on land use plan absence

Wendy's Paradise Island rendering.

Wendy's Paradise Island rendering.

photo

Wendy's food truck on Paradise Island.

• Atlantis, resorts launch appeal to overturn go-ahead

• Wendy’s, Marco’s defiant: Confident ruling ‘upheld’

• Opponents: Go over bridge for ‘rare’ fast-food need

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Atlantis and other major resorts yesterday sought to overturn the approval granted to Wendy’s and Marco’s Pizza by branding it “void” due to the absence of a land use plan for Paradise Island.

The mega resort, together with other Paradise Island developers and hotels, launched their appeal against the Town Planning Committee’s decision to grant “site plan approval” for the conversion of the former Scotiabank branch by arguing there are sufficient delivery companies to satisfy tourist and resident cravings “on the rare occasion” they desire fast food.

Wendy’s and Marco’s Pizza, though, responded defiantly to the long-anticipated appeal by voicing confidence that the Subdivision and Development Appeal Board will “uphold” the Committee’s approval.

They and their franchise holder, Aetos Holdings, argued that there is nothing to block the site’s redevelopment as a fast-food restaurant, and accused Atlantis and the other resorts of advancing the same arguments in their appeal that were rejected by the Town Planning Committee.

Gail Lockhart-Charles KC, attorney for Psomi Holdings, the entity spearheading the Paradise Island restaurant project, said in a statement to Tribune Business: “There is no covenant or restriction on the property that prohibits Wendy’s operating its business on its Paradise Island site.

“We are confident that the decision of the Town Planning Committee to grant site plan approval for the Wendy’s Paradise Island site was correct in law and will be upheld by the appellate court. All of the arguments that Atlantis and its agents are advancing were heard and rejected by the Town Planning Committee.

“Wendy’s will not have a drive thru and it will not create more traffic than Scotiabank did when it operated from that site. People will not pay a bridge toll to go to Paradise Island to buy a Wendy’s when they can visit the Wendy’s on Mackey Street.” The latter statement implies that the Paradise Island restaurant’s target customer market is residents, tourists and persons who work in that destination.

However, Wendy’s and Marco’s Pizza’s opposition have made good on their pledge not to relent in the campaign block their arrival. The Paradise Island Tourism Development Association (PITDA), in whose name the appeal was filed, is now arguing that the absence of a specific land use plan and zoning bye-laws for the destination means Town Planning was “not competent to grant the approval”.

PITDA, which represents the likes of Paradise Landing (Sterling Global’s former Hurricane Hole project), the Ocean Club and Comfort Suites as well as Atlantis, is also asserting that the lack of a land use plan and zoning bye-laws resulted in the Town Planning Committee acting unlawfully and in violation of the Planning and Subdivisions Act 201 when conferring site plan approval.

Asserting that Paradise Island has “no transparent and objective development policy”, PITDA’s “grounds of appeal” argued: “The Committee, having confirmed the absence of a land use plan and zoning bye-law for Paradise Island, acted ultra vires the obligations and purpose of section 42(3) of the Act when it granted the approval of the application in the absence of a land use plan and zoning by-law, thereby rendering the approval void.

“The Committee was not competent to grant the approval of the application in the absence of the assistance of a land use plan and a zoning bye-law for Paradise Island, thereby rendering the approval void.” Glen Haddad, PITDA’s executive vice-president, had signalled this line of attack on the approval when warning his members were prepared to take their appeal all the way to the UK-based Privy Council.

The Association and its members, when last month turning their fire on the planning authorities over the Wendy’s approval, also hit out at the Department of Physical Planning for failing to fulfill its lawful obligation to develop a land use plan for Paradise Island some 13 years after the Planning and Subdivision Act was passed, arguing that this had resulted in “yet another uninformed planning decision”.

Mr Haddad told Tribune Business then that the requirement for the Department “to prepare a Land Use Plan for all islands of The Bahamas” is laid out in the Act’s section 16. And Dwana Davis, of Amicus Chambers, the attorney representing the Association in its appeal, has written to Physical Planning asking to “review any existing land use plan” for Paradise Island.

And, in a November 10, 2023, letter addressed to Charles Zonicle, director of physical planning, she also requested the ability for the Association to review previous site plan approval applications and decisions made by the Town Planning Committee, along with subsequent “revocation and modification” to these permits.

The Association, in setting out its grounds of appeal, seemed to argue that there was no justification for approving a Wendy’s and Marco’s Pizza because there is insufficient demand for their product on Paradise Island. And, should anyone require fast food from ‘across the bridge’ in mainland New Providence, then there are multiple service delivery firms that can assist.

“Besides the developer’s application, there appears to be no basis, justification or support for approving the development of fast-food restaurants on the property, in all the circumstances, including, for example, the fact that 12 Wendy’s restaurants currently exist on New Providence,” the appeal states.

“The prevalence of food delivery service providers including Kraven and Gofadis makes it easy for any resident or visitor of Paradise Island to order Wendy’s or Marco’s Pizza from a location that is within less than two miles from the island on the rare occasion that they choose to do so.”

Otherwise, the appeal largely regurgitated similar arguments and themes to those previously voiced and rejected by the Town Planning Committee. These included suggestions that “the brand, usual branding style and nature of the developer’s fast-food restaurants are inconsistent with the brand of the established luxury hotels, residences, restaurants and the idyllic landscape” Paradise Island delivers.

Pointing to opposition from residents in both Ocean Club Estates and Ocean Club Residences, the Association added: “The nature and relevance of fast-food restaurants are inconsistent with the desires of the residents and other major stakeholders of Paradise Island.

“The intended development does not appear to add any value to the neighbourhood or, at the very least, complement the current landscape, intentions and idyllic environment that the Paradise Island community is known for and its stakeholders expect.”

The Association also alleged that the Town Planning Committee failed to inform it of the approval decision, which “enabled the developer to take steps to and to commence significant development on the property” without its knowledge although it did not specify what work has taken place.

Wendy’s, following the Town Planning Committee’s approval, began selling its regular menu from a mobile food truck at the former Scotiabank branch, located at the junction of Harbour Drive and Paradise Beach Drive, in a bid to start repairing the financial losses that it alleges have resulted from the opposition to planning approval.

“This gives our company the ability to mitigate the loss in revenue due to the unnecessarily delayed opening for over a year-and-a-half from frivolous objections and stall tactics,” Wendy’s said in a previous statement issued by Mrs Lockhart-Charles on its behalf.

“We have sustained considerable damages in the form of financial losses and delay costs caused by the Atlantis attacks on our Town Planning Committee approvals to renovate and operate the former Scotiabank Paradise Island site purchased by us. We have been victorious so far, and we believe that we will continue to prevail, but we are gearing up for the long haul.

“We are exercising our constitutional rights as property owners and a fully-licensed 100 percent Bahamian-owned business to operate and earn income to cover the carrying costs of this prime commercial real estate. As Bahamian business owners, we have incurred substantial carrying costs for this commercial property with no revenue in return. This gives us a way to mitigate some of those losses,” Wendy’s added.

“Hence the decision to lawfully forge ahead with this new mobile kitchen. The construction of our restaurants at the former Scotiabank Paradise Island location would have been completed long ago, and we would have been up and running by now but for the trumped-up campaign against us.

“It will now take us an estimated 18 months to complete the project and open our doors to the beautiful new Wendy’s at the site of the old Scotiabank building. In the meantime, the mobile Wendy’s allows us to mitigate the losses caused by the campaign against us. It also stimulates the economy on the site, which is good for everyone.

Some 12 grounds of appeal in all were cited, with many focusing on the alleged traffic congestion and strain on available parking spaces that approving Wendy’s and Marco’s Pizza restaurants at that location would create. These concerns were previously rejected by Aetos Holdings and its principals, Chris and Terry Tsavoussis, who argued that opposition is largely motivated by the competitive threat they pose.

PITDA had previously urged the Town Planning Committee to allow extra time for Caribbean Civil Group to conduct a traffic impact study, which was refused. “The Committee, being mostly comprised of lay members without any or any significant technical expertise, unreasonably failed or refused to consider or be assisted” by such a report, the Association argued.

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