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Doctored Development
by Ron Davis

Conflict over a change of plans for a New Jersey shopping center property are at last being resolved. But the final solution is not likely to satisfy the center’s developer.

The conflict began when the developer bargained for the Woodbridge property, owned by a physician, then changed plans for the shopping center’s development. The deal at the time of purchase called for construction of a shopping center that would share land that the physician owned.

On the site at that time was a medical building, which, based on agreed terms would remain intact, and another smaller building that a retailer leased and would relinquish to the developer. The developer would then raze that building. The arrangement between the physician and developer included a plan to share parking in the complex, with additional parking added where the smaller building was located. Based on those goals, the Middlesex County Zoning Board approved the project.

The developer then constructed the shopping center, which soon began operations. But instead of demolishing the smaller building, the developer leased it to the operator of a pizza restaurant.

The zoning board responded by citing the developer for failure to comply with the site plan. The developer then offered an amended site plan that would eliminate the requirement to demolish the smaller building and to allow its leasing.

The zoning board denied the amended plan, and the developer sued, arguing that denial of the plan was “arbitrary and capricious.” The physician also opposed the developer’s actions and sued, seeking reimbursement of legal fees paid to enforce the agreement with the developer.

A New Jersey court ruled in favor of the zoning board and ordered the developer to complete all the site plan work, including demolition of the smaller building. The court also allowed the physician to seek reimbursement for his legal expenses. After a controversy over the amount, however, the court granted the physician only $655. The physician appealed.

A New Jersey appellate court returned the case to the lower court to determine the true amount the physician spent on attorney’s fees. (His attorneys contended that he owed them $18,126.) Said the judges, “This requires a determination as to the actions of the developer by attempting to unilaterally amend the site plan and appealing the zoning board’s denial constituting a breach of the agreement between the developer and the physician.” (Park Center at Route 35, Inc. v. Zoning Board of Adjustment of the Township of Woodbridge, 2007 WL 858830 [N.J.Super.A.D.])

Decision: March 2007
Published: March 2007



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