Sample Case: Landmark Mall Development Company and Landmark Homeowners

As you learn about the various features of ADR Notable, you will see examples that pertain to our fictitious sample case.  Read more about it...

Parties

• Landmark Mall – represented by its President and CEO, Jamie Dorn, and Landmark Development Company counsel, Mark Gerstein.
• Landmark homeowners – represented by Alex Hoefer and attorney Catherine Mathews.  Additional homeowners present are Bob and Joan Mayer.
• The project architect, George Berg, is present for the mediation but is not affiliated with either party.

Facts of the Dispute

The development of Landmark Mall was recently proposed to be built on farmland and in place of a rustic farmers’ market in the Landmark rural historic district. The proposal attracted objections from many of the local residents, particularly those adjacent to the new development. The project proposal is for an average-sized mall of about 400,000 square feet with one large anchor tenant and a myriad of smaller stores.

There will be ample parking surrounding the structures and the parking lot will be well-lighted at night for security reasons. The mall will face a major road with significant commercial development, but will have store entrances front and back. At the rear of the mall there will also be shipping and maintenance access plus a narrow strip of parking which will abut many residential backyards.

The residents’ complaints are:

1.  The expected increase in traffic along the main street, from which they access their neighborhood.
2.  The parking lot lighting, which stays on all night, will brightly light the adjacent backyards and the backs of the homes.
3.  Noise from delivery trucks using the mall’s loading docks, particularly during early morning hours.
4.  Noise from trash and recycling pickup, similar to the delivery trucks.
5.  Storm water drainage from the parking lot is expected to worsen periodic flooding in the adjacent backyards and homes, in particular, the Mayer residence.
6.  The unsightly nature of the modern mall in contrast to the local historical architecture and the degradation of the view, going from farmland to a parking lot and commercial buildings.
7.  The elimination of the farmers’ market.

The Landmark Mall developer has complaints about the neighbors as well:

1.  Asserts that the neighbors have repeatedly pulled up surveyor markings.
2.  There has been vandalism on the equipment stored at the property that has been used in the design phase. The developer is worried about this practicing continuing during construction.
3.  The neighbors have tried to organize and publicize a boycott to scare away potential tenants.
4.  The neighbors have initiated legal proceedings to reverse the zoning to prevent commercial development.
5.  The neighbors have threatened to bring nuisance civil actions about the construction, and later, the operation of the mall citing noise, traffic, lighting, etc. The threats are impairing the developer’s negotiations for construction financing.

Proposals

The residents propose:

1.  The development be made much smaller and redesigned to be consistent with local architecture
2.  The parking lot lighting not remain on after the stores close or in any event not past 10 pm.
3.  Access for trash and maintenance and loading docks for shipping occur only during normal business hours.
4.  The farmers’ market be allowed space to continue operating on the property
5.  If the developer agrees, the neighbors will drop their rezoning efforts and agree not to start new litigation based on nuisance theories.
6.  The residents’ representative denies any involvement with a boycott or vandalism, but in caucus admits to knowing that a neighbor is responsible.

The developer proposes:

1. To landscape a berm between the rear parking lot and the residential homes to block the noise and lighting issues.
2. To consider minor changes to the design of the façade to better fit in with local architecture.
3. To ensure that the drainage does not exacerbate past problems, and to include new sewer lines to prevent the flooding the homeowners had experienced in the past.
4. To work with the farmers’ market to provide space to continue its operation for a reasonable space rental fee.
5. In return, the developer wants the individual homeowners to sign releases of claims regarding the zoning and potential nuisance claims, and to promise to discontinue any vandalism or solicitation of a boycott.
6. The settlement with the neighbors must be publicly announced to help clear the path for the developer’s financing.
7. Told in caucus with confidentiality waived: The developer believes the proposed size is the minimum footprint required to attract sufficient traffic to be successful.
8. Told in caucus – confidentiality not waived: The developer’s experience is that 24x7 lighting is necessary to deter break-ins and other crime. The developer was involved in a prior lawsuit when an employee of a store at a different mall was assaulted in a darkened parking lot after hours. The developer stills feels badly about it both personally and financially.

Additional input from George Berg, architect

1. A berm and the landscaping would add an estimated $60,000 to the cost of the project
2. Changes limited to minor features in the façade would require only a few hours of his design time since construction hadn’t started yet.
3. He told the mediator in caucus that the upgrades required to the local storm drains would likely fix the neighborhood flooding in any case. He waived confidentiality to this.
4. He could not imagine any viable alternatives to the traffic flows at the rear of the mall where the deliveries and trash pickup would occur.
5. He was not involved in any street traffic projections or models.