Trial to determine fate of development plans next to mall
Court ruling denies declaratory judgment
A trial slated for November will determine the fate of a proposed shopping center that Hutton Growth LLC, of Chattanooga, Tennessee, and Blessing Enterprises LLC, of Missouri, plan to build next to Crossroads Mall.
The trial date has been set for Nov. 14.
Hutton hoped to speed up the process by filing a petition in April, seeking a declaratory judgment from the court to interpret the 1963 cross easement agreement. An easement agreement is the right to use someone else’s land for a specified purpose.
The 1963 agreement details various obligations owed by each property owner to the other related to parking and traffic across the two parcels, indicating that the two parcels will operate as a “single, integrated commercial development” so far as practicable.
In the petition, Hutton asked that its development plans be declared by the court to be in compliance with the cross easement agreement.
A court ruling filed on May 22 denied that motion, citing a need for additional facts.
The court found that the agreement contains “ambiguous language.”
The ruling, by Chief District Court Judge Kurt Wilke, reads, “Due to the existence of these genuine issues of material fact, the court is precluded from determining whether plaintiff’s (Hutton) development complies with a Cross Easement as a matter of law. Therefore, plaintiff’s motion for summary judgement is denied.”
The motion would have declared Hutton’s development plans in compliance with the cross easement for the property.
Hutton intends to build a new shopping center on the former Sears site, which is owned by Blessing.
Hutton has proposed tearing down the old Sears store and replacing it with a 74,300-square-foot building that would house eight stores. The company also proposes to put up a 7,800-square-foot building closer to Fifth Avenue South that would house a restaurant and four stores.
In October 2016, the Fort Dodge City Council took steps to move the project forward, rezoning the site of the former Sears store and agreeing to give up public ownership of a driveway leading into the mall area from Fifth Avenue South.
Although the old Sears store appears to be an integral part of the Crossroads Mall, it is a separate property with a different owner.
The Crossroads Mall is owned by J. Herzog & Sons Inc., of Denver, Colorado.
Herzog claims Hutton’s plans would violate the 1963 easement agreement.
Attorney Sarah Franklin, of Des Moines, who is representing Hutton and Blessing, has said that both the mall and Sears store are subject to the easement from 1963.
Hutton’s plans call for the addition of a building 27 feet from the Crossroads Mall property line.
Hutton asked the court to declare that the building would not violate the cross easement agreement.
Paragraph one of the 1963 agreement “prohibits the parties from erecting any building, fence, or other obstruction along or near the property between tracts A and B.”
Paragraph one also states, “the invitees of each of the parties hereto shall be permitted to go freely across the boundary line between the parking lot areas of said two tracts.”
The court found the language to be unclear, making the interpretation of the terms to be an issue of fact.
In the petition, Hutton also asked that its development plans, which include a 24-foot-wide traffic lane on the west side of the building and delivery area would satisfy the cross easement’s requirement that “the invitees of each of the parties hereto shall be permitted to go freely across the boundary line between the parking lot areas of said two tracts.”
Lastly, Hutton asked that the development be declared consistent with the terms of the cross easement.
The court denied Hutton’s motion to declare those items consistent with the terms of the cross easement.
Attorney Neven Mulholland, of Fort Dodge, who represents the Crossroads Mall, has argued there will not be enough space for customers to access the mall based on the plans that have been submitted.
In January, a judge denied a motion by Mulholland, who sought to have the case thrown out because the plans were still “conceptual.”
But Hutton and Blessing have since argued to the court that “its site plan constitutes a concrete plan for demolition and development of the property,” Wilke wrote in his order.
“While there seemed to be some ambiguity in the way the site plan was previously described in pleadings, plaintiff’s counsel has recently resolved any confusion on this issue,” Wilke wrote. “Although plaintiff has not acquired any permits for this project, under Iowa law, plaintiff is not required to wait until the eve of construction to obtain a declaratory judgment. As it stands, plaintiff is ready to move forward with their site plan as soon as this litigation has been resolved.”
Hutton and Blessing’s filing said the due diligence period set forth in their contract has already been extended, and further postponement of judicial action could delay or even cancel the project.
A timeline for Hutton’s development hasn’t been publicly revealed.