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Phased Out
by Ron Davis

A minor change in development plans for a New Jersey shopping center has run into a major obstacle.

The shopping center, now under construction in Woodbridge, will eventually consist of two phases, the second of which has met with the obstacle. The developer, Park Center at Route 35, Inc., has already won approval from local government officials for the shopping center construction. And those officials have no problem with the first phase, which includes the center itself plus a parking lot to serve center patrons and visitors to an existing medical facility at the site.

Neither do they have a problem with the second phase as originally conceived. It called for demolition at the site of a structure housing a candy retailer. But because the candy store operator has a long-standing presence in the community, officials agreed to wait on that demolition until after expiration of his lease.

Eventually, that lease did expire, but instead of demolishing the building, the shopping center developer leased it to a pizza restaurant operator. In response, government officials cited the shopping center developer for failing to comply with the original plans.

The developer argues, however, that government officials never imposed any requirement as to when the second phase of construction would begin. Nor, he adds, did they describe phase two as a condition for granting phase one approval.

A New Jersey appellate court disagreed with the developer. Explained the judge, “The developer’s application unmistakably demonstrates that approval for phase one was conditioned upon the later completion of phase two. In seeking approval, the application described the developer’s intentions with respect to the candy shop structure in mandatory terms: ‘When all tenancies in said building terminate, said building will be demolished and phase two will be implemented.’… Phase two was thus a material aspect of the entire application and an integral component of the overall approval of the application.” (Park Center at Route 35, Inc. v. Zoning Board of Adjustment of the Township of Woodbridge, 2004 WL 32759)

Decision: January 2004
Published: February 2004



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