Free Trial Memo - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

ADAP, INC.

VS. RITZ REALTY CORP. and AVALONBAY COMMUNITIES, INC.

: CASE NO. 3:03CV350 (MRK) : : : : : : JULY 19, 2005

JOINT TRIAL MEMORANDUM I. TRIAL COUNSEL For the Plaintiff, ADAP, Inc.: Bruce L. Elstein, Esq. Elstein and Elstein, P.C. 1087 Broad Street Suite 400 Bridgeport, CT 06604-4260 t (203) 367-4421 f (203) 366-8615 [email protected]

For the Defendant, Ritz Realty Corp. Andrew L. Houlding, Esq. Rome McGuigan, P.C. One State Street Hartford, CT 06103-3101 t (860) 493-3468 f (860) 724-3921 [email protected]

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For the Defendant, AvalonBay Communities, Inc. Joseph L. Hammer, Esq. David M. Bizar, Esq. Day, Berry & Howard, LLP Cityplace I Hartford, CT 06103-3499 t 860-275-0100 f 860-275-0343 [email protected] [email protected] II. JURISDICTION This court has jurisdiction over this matter by virtue of the diversity of citizenship of the parties, pursuant to 28 U.S.C. § 1332. III. LENGTH OF TRIAL Counsel anticipate a trial length of 2-3 days. IV. FURTHER PROCEEDINGS The parties do not seek a ruling on any further proceedings prior to trial. V. NATURE OF CASE A. Plaintiff ADAP, Inc.'s Statement

First Count alleges anticipatory breach of the lease and seeks specific performance, injunctive relief, declaratory relief and legal costs. Second Count alleges breach of the lease and seeks specific performance, injunctive relief, declaratory relief and legal costs. Third count alleges breach of the covenant of good faith and fair dealing and seeks specific performance, injunctive relief, declaratory relief and legal costs.

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B.

Defendant Ritz Realty Corporation's Statement

Ritz defends against Plaintiff's claims on the grounds that Plaintiff unreasonably withheld its consent to the Proposed Development, and has in this and other ways breached the Lease and relieved Ritz of its reciprocal obligations. Further, Plaintiff should be denied equitable relief because it comes before the Court with unclean hands. Since the Lease permits development of the shopping plaza, its provisions should be given effect so that Ritz and AvalonBay may consummate a purchase and sale agreement that will benefit the entire Norwalk community. Moreover, Plaintiff is attempting to preserve an artificial status quo that arose from Ritz's longstanding inability to rent the former Pathmark grocery space at the site, and the resulting unbargained-for low parking demand at the site. C. Defendant AvalonBay Communities, Inc.'s Statement

AvalonBay joins in the above statement of Ritz Realty. Further, notwithstanding Plaintiff's unreasonable withholding of its consent to the proposed development, Plaintiff could not, as a matter of law, establish an entitlement to injunctive relief or specific performance as claimed. This is because Plaintiff has an adequate damage remedy at law, cannot establish that it will suffer irreparable harm if the Proposed Development goes forward, and the balance of the equities weighs heavily in favor of the Defendants. VI. STIPULATIONS AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW A. STIPULATIONS (1). 1. Parties

Plaintiff ADAP, Inc. (n/k/a AutoZone Northeast, Inc. and d/b/a AutoZone) is a

wholly owned and controlled subsidiary of AutoZone, Inc. ("AutoZone"). AutoZone regards

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itself as the nation's leading specialty retailer of automotive parts and accessories. AutoZone is a New Jersey corporation with its principal place of business located at P.O. Box 2198, Memphis, Tennessee 38101-9842. 2. As of November 20, 2004, AutoZone operated 3,448 retail stores in the United

States and 64 additional stores in Mexico. 3. 4. AutoZone has 27 stores in Connecticut. On February 17, 1998, AutoZone acquired ADAP, which was doing business in

six northeastern states as Auto Palace, an automotive parts and accessories chain. 5. Upon the closing of its acquisition of ADAP, AutoZone assumed control and

operation and took over the name and format of all of Auto Palace's 112 stores, including the store located at Riverview Plaza, Norwalk, Connecticut, that is the subject of this action. 6. Defendant Ritz Realty Corp. ("Ritz") is the owner of that certain piece or parcel

of real property known as "Riverview Plaza" located at 24 Belden Avenue, Norwalk, Connecticut ("Premises"). Ritz is a Connecticut corporation with its principal place of business located at 24 Belden Avenue, Norwalk, Connecticut 06810. 7. Defendant AvalonBay Communities, Inc. ("AvalonBay") is a developer of high-

quality apartment communities in the Northeast, Mid-Atlantic, Midwest, Pacific Northwest and Northern and Southern California regions of the country. AvalonBay is a Maryland corporation with its principal executive offices located at 2900 Eisenhower Avenue, Suite 300, Alexandria, Virginia 22314.

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(2). 8.

AutoZone Lease

On or about April 17, 1997, prior to AutoZone's acquisition of ADAP, ADAP and

Ritz entered into a written lease ("Lease") pursuant to which ADAP exclusively leased a portion of Riverview Plaza, located in the southwest portion of the existing building located closest to the access way from Belden Avenue, consisting of approximately 5,680 square feet (the "Leased Premises"). 9. The Lease contains an initial term of ten years commencing not later than October

1, 1997, followed by two successive renewal terms each of five years. 10. Riverview Plaza includes an office building, retail buildings (one of which is

vacant), and a building operated as an off-track betting facility. 11. A surface parking lot is located on the portion of Riverview Plaza abutting Belden

Avenue and Cross Street and has entrances and exits to both of those roadways. 12. There is an underground parking garage at Riverview Plaza, which has access to

Burnell Boulevard. 13. Since February 26, 1998, AutoZone has operated the Leased Premises as an

AutoZone store.

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B.

PLAINTIFF'S PROPOSED FINDINGS OF FACT AND DEFENDANTS' RESPONSES Plaintiff's Proposed Finding of Fact:

(1). 1.

Riverview Plaza Ritz Realty Corp. ("Ritz") is the owner of that certain piece or parcel of real

property known as "Riverview Plaza" located at 24 Belden Avenue, Norwalk, Connecticut ("Premises"). See complaint ¶ 7 and Ritz' answer (admission) thereto and testimony of Eric Berliner. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 2. AvalonBay Communities, Inc. ("AvalonBay") submitted plans ("Plans") to

construct two (2) apartment buildings on a portion of the Premises. Plans and testimony of Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. On or about November 26, 2002, AvalonBay submitted a site plan application ("Application") to the Norwalk Zoning Commission pertaining to Riverview Plaza (the "Development Plan"). See Rule 26(f) Report, Statement of Undisputed Facts) at § VII.N; Plaintiff's Local Rule 56(a)(2) Statement at ¶ 24; Defendant AvalonBay Communities, Inc.'s Local Rule 56(a)(2) Statement at ¶ 22. The "Development Plan" calls for the construction of two four-story apartment buildings, one over a portion of the surface parking lot and the other over the vacant retail building located within Riverview Plaza which formerly housed a Pathmark grocery store. See Defendant AvalonBay Communities, Inc.'s Local Rule 56(a)(2) Statement at ¶¶ 2, 23. The Development Plan will create 312

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residential apartment units and approximately 1,500 square feet of retail space and parking areas. See Rule 26(f) Report, Statement of Undisputed Facts) at § VII.R; Plaintiff's Local Rule 56(a)(2) Statement at ¶ 26; Defendant AvalonBay Communities, Inc.'s Local Rule 56(a)(2) Statement at ¶ 26. The Development Plan does not call for any structural additions to the building where AutoZone is located and provides for exterior improvements, consisting of façade renovations to the exterior of the building and the addition of trees and landscaping along Belden Avenue to the south of the AutoZone store. See Defendant AvalonBay Communities, Inc.'s Local Rule 56(a)(2) Statement at ¶¶ 24 - 26. Plaintiff's Proposed Finding of Fact: 3. The Norwalk Planning and Zoning Commission granted site plan approval of the

Plans. See complaint ¶ 38 and answers (admissions) thereto. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. On February 26, 2003, the Norwalk Zoning Commission approved AvalonBay's application. See Rule 26(f) Report, Statement of Undisputed Facts) at § VII.R; Plaintiff's Local Rule 56(a)(2) Statement at ¶ 27; Defendant AvalonBay Communities, Inc.'s Local Rule 56(a)(2) Statement at ¶ 3. AutoZone appeared before the Zoning Commission and objected to AvalonBay's application at the public hearing. See Rule 26(f) Report, Statement of Undisputed Facts) at § VII.Q; Plaintiff's Local Rule 56(a)(2) Statement at ¶ 28. AutoZone did not appeal the Zoning Commission's approval to the Connecticut Superior Court. See Rule 26(f) Report, Statement of Undisputed Facts at § VII.S; Plaintiff's Local Rule 56(a)(2) Statement at ¶ 29.

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Plaintiff's Proposed Finding of Fact: 4. Riverview Plaza presently has retail space with a large open field parking area

immediately adjacent to it, has excellent visibility from all surrounding roads and is easily accessible from points of ingress and egress from Belden Avenue and Cross Street. Plans, pictures and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted that Riverview Plaza has a surface parking lot on the portion of Riverview Plaza abutting Belden Avenue and Cross Street. Plaintiff's assertions that the parking area is "large" and "easily" accessible from Belden Avenue and Cross Street, and that the retail space at Riverview Plaza has excellent visibility from all surrounding roads, are subjective characterizations, not facts. Subject to and without waiving the foregoing objection, denied. For example, the view of AutoZone's storefront is obstructed for drivers traveling on Cross Street and Belden Avenue in certain locations and AutoZone's customers must compete for parking spaces with other Riverview Plaza tenants and courthouse parkers from across the street because there are presently no dedicated or reserved spaces for AutoZone customers. Plans, photographs, demonstrative exhibits, testimony of Mark Robbins, Eric Berliner and Peter Kastl, and deposition testimony of Ken Murray, Susan Valenti, John Michael Martin, Shawn Sheikhzadeh and James Butler. (2). AutoZone Lease Plaintiff's Proposed Finding of Fact: 5. On or about April 17, 1997, ADAP and Ritz entered into a written lease ("Lease")

for ADAP to exclusively occupy a portion of Building #1 of Riverview Plaza consisting of

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approximately Five Thousand Six Hundred Eighty (5,680) Square Feet (the "Leased Premises"). Lease and testimony of James O. McClain. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. ADAP entered into the lease with Ritz prior to AutoZone's acquisition of ADAP. AutoZone management, therefore, was not involved in the evaluation or selection of the Riverview Plaza store location. Testimony of James McClain. Plaintiff's Proposed Finding of Fact: 6. The Leased Premises is located in the corner location, or "end cap", of Building

#1 - closest to the access way from Belden Avenue. Plans, lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 7. The AutoZone store has frontage along the open parking lot and Belden Avenue.

Plans, pictures and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 8. AutoZone has a large sign on the front of its store that is visible from the open

parking lot, Cross Street and Belden Avenue. Pictures and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below.

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AvalonBay's Response: Admitted that AutoZone has signage on the front of its store which is visible from the open parking lot, and portions of Belden Avenue and Cross Street. However, views of the signage are obstructed from certain locations on Cross Street and Belden Avenue. The pylon sign at the Belden Street entrance to the surface parking lot near the AutoZone store has been broken for approximately three years and contains no AutoZone signage. Prior to the damaging of the sign during a storm (and, if the sign were to be repaired), the sign had the effect of interfering with views of the AutoZone store from certain locations on Belden Avenue and/or Cross Street. Photographs, demonstrative exhibits and testimony of Mark Robbins, Eric Berliner and Peter Kastl. Plaintiff's Proposed Finding of Fact: 9. The lease provides the lessee, among other rights, use and occupancy of the

Leased Premises for an initial term of ten (10) years commencing not later than October 1, 1997, followed by two (2) successive renewal terms each of five (5) years. Lease and testimony of James O. McClain. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 10. ADAP and Ritz agreed in Article 1 of the lease as follows:

Landlord agrees that at all times during the term of this lease, adequate roadways and passageways shall be provided at the building for passage by motor vehicles and on foot between the leased premises, the parking areas and the public streets, and highways adjoining the building. Landlord further agrees that Exhibit A is a complete and accurate representation of the layout of the building, parking areas, access roads, loading docks, passageways and other common areas and facilities and improvements shown thereon, now completed or under construction or planned for [Riverview Plaza], as well as of the locations of the store enterprises noted thereon and that the layout thereof, as shown on Exhibit A will be adhered to in the development of [Riverview Plaza] and/or any subsequent expansion

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and/or alteration thereof so as to maintain the relative position of the buildings, the parking areas, the roadways and passageways, and the spaces of the tenants, all as shown on Exhibit A. Landlord agrees that there shall be no change whatever in the location, shape or dimensions of the premises hereby demised, and no substantial change in [Riverview Plaza] layout which would in any manner or to any degree adversely or materially affect the accessibility to the leased premises from the parking areas or the visibility of tenant's signs or storefront, without tenant's prior written consent in each instance, which consent shall not be unreasonably withheld. Landlord further agrees not to place any free-standing buildings, kiosks, planters, trees, shrubs, stairs or other obstructions any place in front of the leased premises so as to affect the accessibility to or the visibility of the leased premises without first obtaining tenant's written consent, which consent shall not be unreasonably withheld or delayed. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 11. ADAP and Ritz agreed in Article 14 of the lease as follows:

Landlord agrees throughout the term of this Lease to properly maintain and operate all parking areas and other common areas and facilities or appurtenances to the building and to keep same in good order and condition and properly lighted and cleaned. The aforesaid obligations of Landlord shall include maintaining and at all times having adequate means of ingress and egress to and from accepted highways and public streets ... All of the aforesaid obligations of Landlord shall be performed in accordance with good and accepted real estate practices throughout the term of this lease, Landlord recognizing that all of said common areas must be available at all times, in good and attractive order and condition, to serve Tenant's customers, employees and invitees. * * *

Landlord acknowledges that due to the fact the Premises has no rear loading door or dock, Tenant must unload its deliveries of goods and products to the Premises through the front door via access from the parking area in front of the Premises. Landlord agrees that, notwithstanding anything in this Lease to the contrary or any rules and regulations now or hereafter established by Landlord for tenants of the shopping center, Tenant shall be permitted to load and unload its goods and products through the front door of the Premises. B. Landlord agrees that throughout the term of this Lease it shall provide and maintain, in good order and condition, paved and line painted parking areas -11-

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adjacent to the building for use by Tenant's customers and invitees, which parking shall comply with all local ordinances and regulations applicable thereto including with respect to the required ratio parking spaces to area of the leased premises. If at any time during the term hereof the total parking area shall be decreased permanently by more than thirty-five percent (35%), than in such event Landlord shall designate and reserve for the exclusive use of Tenant's customers (including by cordoning off spaces to identify them as reserved for Tenant's customers) fifteen (15) parking spaces within the cross-hatched area identified on Exhibit A hereto and Landlord shall enforce such parking restrictions as may be reasonably necessary to ensure the [exclusiveness] of such parking spaces. If Landlord shall fail to provide such parking or to enforce restrictions as are reasonably necessary to ensure such parking to Tenant's customers and such failure shall continue for thirty (30) days after notice from Tenant, then Tenant may, in lieu of the fixed annual rent herein specified, pay to Landlord a reduced rent equal to three (3%) percent of its gross sales from the leased premises, plus all utilities it is required to pay under this Lease, until such time as the situation is remedied by Landlord; provided, however, that if such failure shall continue for more than ninety (90) days after such notice, then Tenant may cancel and terminate this Lease upon written notice to Landlord of such termination. Landlord further agrees that it will use reasonable efforts to limit access to parking in the parking areas of the Shopping Center to patrons of the Shopping Center and will establish and use reasonable efforts to enforce such parking restrictions as may be necessary in order for that to occur. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 12. At present, there exist 262 parking spaces in the open field lot. Lease. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 13. The Lease dedicated at least fifteen (15) parking spaces ("Reserved Parking

Area") to AutoZone if parking were reduced in the open lot by more than 35%. Lease and testimony of James O. McClain. Ritz's Response: See AvalonBay's Response, below.

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AvalonBay's Response: Denied. The Lease provides that the Landlord shall designate and reserve fifteen parking spaces for the exclusive use of Tenant's customers if parking is reduced permanently by more than 35%. Lease, Article 14(B) (emphasis added). Plaintiff's Proposed Finding of Fact: 14. Parking for retail use in the present open field lot will be reduced by more than

35% if the Proposed Development is built. Plans and site approval. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. Moreover, as a result of the vacancy since 1998 of the 49,000 square feet, formerly occupied by a Pathmark Supermarket, the parking demand in the surface parking lot has been substantially less than it would have been if the former Pathmark space had been rented because customers of any tenant in that space would utilize the parking lot. The AutoZone Lease does not in any way preclude or impact the ability of Ritz to lease the former Pathmark space, including to another grocer. Plans and testimony of Mark Robbins, Eric Berliner and Peter Kastl. (3). AvalonBay's Contract Plaintiff's Proposed Finding of Fact: 15. On October 17, 2001 Ritz entered into a contract ("Contract") for the purchase

and sale of a portion of the Premises to AvalonBay. AvalonBay is the contract buyer of the portion of the Premises including the open parking lot. See complaint ¶¶ 29 and 30 answers (admissions) thereto. Contract. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted.

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Plaintiff's Proposed Finding of Fact: 16. Pursuant to the Contract, AvalonBay had the right to conduct due diligence and to

terminate the Contract "... for any other reason whatsoever, or for no reason ...". Contract. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that whether "AvalonBay had the right to conduct due diligence and to terminate the Contract `... for any other reason whatsoever, or for no reason ..." is irrelevant. Subject to and without waiving the foregoing objection, AvalonBay admits that the Contract provided for such a right prior to the end of the due diligence period. Contract. (4). AvalonBay's Knowledge of AutoZone's Lease Plaintiff's Proposed Finding of Fact: 17. On or about October 31, 2001 and during the due diligence period, AvalonBay

was provided a copy of the plaintiff's Lease. Receipt, Valente deposition and testimony of Allen J. Roberts, III. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that whether "[o]n or about October 31, 2001 and during the due diligence period, AvalonBay was provided a copy of the plaintiff's Lease" is irrelevant. Subject to and without waiving the foregoing objection, admitted. Plaintiff's Proposed Finding of Fact: 18. On or before October, 2001, Day, Berry & Howard LLP commenced to represent

AvalonBay Communities, Inc. in the purchase and sale of a portion of the premises referred to as "Riverview Plaza" in Norwalk, Connecticut. Testimony of Allen J. Roberts, III. Ritz's Response: See AvalonBay's Response, below.

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AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 19. AvalonBay identified the terms of plaintiff's Lease, and in particular, Article 1

thereof, as providing a potential basis for objecting to the Proposed Development. Letters of January 29, 2002 and February 7, 2002 and testimony of Allen J. Roberts, III. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that whether "AvalonBay identified the terms of plaintiff's Lease, and in particular, Article 1 thereof, as providing a potential basis for objecting to the Proposed Development" and the letters of January 29, 2002 and February 7, 2002, are irrelevant. Subject to and without waiving the foregoing objection, AvalonBay admits that in the letters addressed to Ritz, AvalonBay's real estate counsel raised the issue of whether the Lease would give tenants a potential basis for objecting to the Proposed Development, but denies any suggestion that AvalonBay believed that any such objection or the withholding of consent to the Proposed Development by AutoZone would be reasonable. (5). AvalonBay's Proposed Development Plaintiff's Proposed Finding of Fact: 20. By application dated November 26, 2002 ("Application"), AvalonBay submitted a

site plan review application with the Norwalk Zoning Commission ("Proposed Development"). See complaint ¶ 31 and answers (admissions) thereto. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted.

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Plaintiff's Proposed Finding of Fact: 21. The Proposed Development consists of construction of two (2) new multi-story

buildings, one in the area now used as an open parking lot and the other in an area formerly housing a Pathmark grocery store. See complaint ¶ 32 and answers (admissions) thereto. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 22. AvalonBay does not intend to make any structural additions to the building where

AutoZone is located, but intends on making "improvements" to the exterior thereto. Plans and testimony of Mark Robins and Peter Kastl. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted that the plan approved by the Norwalk Zoning Commission does not call for any structural additions to the building where AutoZone is located and provides for improvements to the exterior of the building. Plaintiff's Proposed Finding of Fact: 23. The "improvements" consist of façade renovations and the addition of trees and

landscaping along Belden Avenue. Plans and testimony of Mark Robbins and Peter Kastl. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted that the improvements consist of façade renovations. Denied that the approved landscaping plan calls for the planting of trees or landscaping along the portion of Belden Avenue abutting the façade of the AutoZone store. Site Plan Application, plans and testimony of Mark Robbins, Peter Kastl and Mark Forlenza.

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Plaintiff's Proposed Finding of Fact: 24. The Proposed Development will result in the: a. b. c. d. Addition of 312 residential units; Addition of 1,500 square feet of retail space; Reduction of parking spaces in the open parking lot; Installation of landscaping trees along Belden Avenue.

See complaint ¶ 33 answers (admission) thereto, plans and testimony of Peter Kastl and Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: a. b. c. Admitted; Admitted; Denied. Although the absolute number of parking spaces in the existing open parking lot will be reduced, the ratio of parking spaces to retail space (inclusive of the AutoZone space) will increase upon the completion of the Proposed Development. Riverview Plaza currently consists of approximately 100,000 square feet of retail space with 262 surface parking spaces, or about one parking space for every 382 square feet of retail space. Following construction, there will be 165 surface parking spaces to service approximately 40,000 square feet of retail space, or about one parking space for every 242 square feet of remaining retail space. These spaces will be located in the footprint of the existing lot and on the footprint of the old Pathmark space. In addition, AutoZone will be provided fifteen parking spaces proximate to AutoZone's store for the exclusive use of its customers on the footprint of the existing lot. Lease, plans, and testimony of Mark Robbins, Eric Berliner, Peter Kastl and Mark Forlenza. See also AvalonBay's Response to ¶ 42, below. d. Admitted that the plan includes such trees along Belden Avenue adjacent to the proposed building.

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(6).

AutoZone's Objection to the Proposed Development Plaintiff's Proposed Finding of Fact:

25.

Beginning in January 2002, the plaintiff has continuously and strenuously

objected to the Proposed Development. Faxes dated January 3, 2002 and January 8, 2002 and testimony of Terry McKee, Mark Robbins and James O. McClean. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. (7). The Proposed Development ­ During Construction Plaintiff's Proposed Finding of Fact: 26. AvalonBay has represented that the Proposed Development will take

approximately eighteen to twenty-one (18 - 21) months to complete. Memo and testimony of Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 27. During construction, parking will be altered and the existing open field parking

lot will be closed or largely inaccessible to customers, employees and invitees of AutoZone. Memo and testimony of Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. Although certain activities will take place in the parking lot, AvalonBay has developed phased construction plans to ensure that parking would remain available for Riverview Plaza's retail tenants throughout construction. For example, approximately 200 parking spaces in the portion of the existing parking lot closest to

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AutoZone, as well as the existing underground garage on the property, will be available the first seven months of construction. Further, in response to discussions with AutoZone, AvalonBay modified the excavation plan for the basement to eliminate a portion of underground parking originally proposed, and has considered the dedication of 15 parking spaces for AutoZone in front of its store during the entire construction process. AvalonBay also expressed a general willingness to work with AutoZone regarding parking logistics during construction. Phase One Diagram (PK0021) and testimony of Mark Robbins, Eric Berliner, Peter Kastl, and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 28. During months one through seven, approximately two hundred (200) parking

spaces at grade for retail customers and employees will exist in the "Western Lot". Exhibit H and Robbins 143:11 ­ 145:23. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. The "Western Lot," which is the portion of the existing surface parking lot closest to the AutoZone store, will remain open during the first phase of construction. Phase One Diagram (PK0021) and testimony of Mark Robbins, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 29. During months eight through twenty-one, there will be no parking present open

field parking lot. Memo and testimony of Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. During months eighteen through twenty-one, in addition to the underground parking available in garage 1, surface parking in the upper level

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of garage 2 (on the existing Pathmark space) will be available to retail customers. In addition, AvalonBay has considered providing to AutoZone 15 dedicated spaces in front of its store during all phases of construction, and has expressed a willingness to work with AutoZone regarding parking logistics during construction. Construction sequence plans and testimony of Mark Robbins, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 30. During construction, there will be significant business interruption and disruption.

Memo and testimony of Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. AvalonBay has developed phased construction plans to ensure that AutoZone retail customers will be afforded sufficient parking and access to Riverview Plaza throughout construction. In addition, AvalonBay has offered to work with AutoZone regarding parking logistics during construction, and has considered providing 15 dedicated parking spaces to AutoZone in front of its store during the entire construction process. Means for loading and delivery will be maintained during construction as well. Plans and testimony of Mark Robbins, Mark Forlenza, Eric Berliner, and Peter Kastl. Plaintiff's Proposed Finding of Fact: 31. There will be an impact upon tenants during construction. Letter of February 7,

2002 and testimony of Allen J. Roberts, III. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that the letters of January 29, 2002 and February 7, 2002, are irrelevant. Subject to and without waiving the foregoing objection, AvalonBay admits that in a letter addressed to Ritz, AvalonBay's real estate counsel referenced

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impacts during construction, as well as efforts to be undertaken by AvalonBay to avoid disruption or adverse impacts to tenants. AvalonBay denies, however, any suggestion that the February 7, 2002 letter constitutes an admission that construction would impact the tenants in a manner that would breach their lease rights. Rather, AvalonBay committed to use all commercially reasonable efforts not to disrupt or adversely impact the tenants during all stages of construction. AvalonBay has developed the Riverview Plaza project with full contemplation of the tenants' interests that there be sufficient parking, access to the premises for their customers, and visibility. Testimony of Mark Robbins, Eric Berliner and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 32. After construction is completed, there will no longer be any open field parking.

Plans and testimony of Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted that retail parking spaces, including 15 spaces dedicated to the use of AutoZone customers, will be located on the footprint of the existing surface parking lot, in the form of covered parking at grade. Plans and testimony of Mark Robbins, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 33. After construction is completed, parking will be enclosed under the buildings.

Plans and testimony of Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied that parking will be "enclosed." The parking will be covered at grade. Plans and testimony of Mark Robbins, Peter Kastl and Mark Forlenza.

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Plaintiff's Proposed Finding of Fact: 34. After construction is completed, parking in the vicinity of the AutoZone store will

be further away from the front door than it is presently. Plans and testimony of Terry McKee, Robert Blank and Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. Retail parking spaces, including those dedicated to the exclusive use of AutoZone's customers, will be located on the footprint of the existing parking lot in a location convenient for AutoZone's customers. AutoZone's contention that customers will have to travel a greater distance to the front door is without support and ignores the fact that current travel distance is not uniform but varies given the use by multiple retailers and their customers of a common parking area and the supply and location of unoccupied spaces at any given time. Site Plan Application, plans and testimony of Mark Robbins, Eric Berliner, Peter Kastl and Mark Forlenza. (8). The Proposed Development ­ After Construction Visibility Plaintiff's Proposed Finding of Fact: 35. After construction is completed, customers of AutoZone will need to walk

through a drive aisle for cars, without a sidewalk, to get to the AutoZone store. Plans and testimony of Terry McKee, Robert Blank and Mark Robbins. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. The Proposed Development is designed with concrete, traffic-calming pavers to act as a large sidewalk and crossing area for pedestrians and

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retail customers. Site Plan Application and testimony of Mark Robbins, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 36. At present, travelers proceeding westerly on Cross Street who approach the

intersection of Belden Avenue with the Premises on their left have a clear view across the open parking lot of the retail stores including AutoZone and its storefront sign. Pictures and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. Travelers proceeding westerly on Cross Street who approach the intersection of Belden Avenue do not have a clear and uninterrupted view across the parking lot of the AutoZone store and its storefront sign from all locations on Cross Street. In certain locations, such travelers do not have a clear view of the storefront because of cars in the parking lot and trees along Cross Street and/or Belden Avenue which impact the view. Site Plan Application, photographs, demonstrative exhibits, and testimony of Mark Robbins, Eric Berliner, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 37. At present, travelers proceeding southerly on Belden Avenue who approach the

intersection with Cross Street with the Premises in front of them have a clear view across the open parking lot of the retail stores including AutoZone and its storefront sign. Pictures and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below.

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AvalonBay's Response: Denied. Such views are currently obstructed for drivers traveling on Cross Street and Belden Avenue when they are in certain locations. Photographs and testimony of Mark Robbins, Eric Berliner, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 38. If the Proposed Development is built, there will be significant reduction in

visibility. Plans and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. Visibility of the AutoZone store from portions of Belden Avenue will not be affected by the Proposed Development. In addition, visibility of the AutoZone store and its signage are currently obstructed for travelers from certain portions of Cross Street and Belden Avenue. AvalonBay will be constructing signage along Cross Street, which will alert travelers on Cross Street to the presence of the AutoZone store. The existing pylon sign negatively impacting the visibility of the AutoZone store from Belden Avenue will be removed. No improvements are to be constructed between the Belden Avenue façade of the AutoZone store and Belden Avenue. Plans, photographs, demonstrative exhibits, and testimony of Mark Robbins, Eric Berliner and Peter Kastl. See AvalonBay's Responses to ¶¶ 8, 34, 35, above. Plaintiff's Proposed Finding of Fact: 39. For travelers going westerly on Cross Street, there will no longer be any visibility

of the AutoZone Store or its sign. Plans and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. See AvalonBay's Response to ¶ 38, above.

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Plaintiff's Proposed Finding of Fact: 40. For travelers going southerly on Belden Avenue, there will no longer be clear

visibility across an open field parking lot of the AutoZone Store or its sign. Plans and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. This view is currently partially obstructed. Further, the existing pylon sign in front of the AutoZone store which, when undamaged, obstructs the view will be removed. The AutoZone storefront on Belden Avenue will remain visible and a pylon sign will be added at the corner of Cross Street and Belden Avenue. Photographs, plans, demonstrative exhibits, and testimony of Mark Robbins, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 41. There will also be very substantial and numerous trees planted along Belden

Avenue that will further block any remaining view cars may have had of the AutoZone store from the Belden/Cross intersection. Plans, demonstrative exhibits and testimony of Mark Robbins and Peter Kastl. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. AvalonBay will landscape Riverview Plaza in accordance with Norwalk zoning requirements. Plans and testimony of Mark Robbins, Peter Kastl and Mark Forlenza.

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(9).

Parking Plaintiff's Proposed Finding of Fact:

42.

After the Proposed Development there will be 82 parking spaces shared between

residential and retail. Plans and testimony of Robert Blank, Mark Robbins and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. AvalonBay and Ritz have contracted to provide 165 parking spaces to Riverview Plaza's retail tenants during business hours once construction is complete. Further, 15 spaces are to be provided for AutoZone's exclusive use. Amendment No. 2 at RR00044-45; Ground Lvl Park Dist. drawing (PK0079-80), Site Plan Application, Lease and testimony of Mark Robbins, Peter Kastl, Eric Berliner and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 43. The parking will be reduced by more than 35%. Thus, AutoZone is entitled to the

exclusive use of fifteen (15) spaces in the Reserved Parking Area. Lease and testimony of James O. McClean. Ritz's Response: When the Lease was executed, the largest tenant in the Riverview Shopping Plaza was a 49,000 square foot Pathmark supermarket, whose customers substantially filled the surface parking lot with their vehicles. The parking lot was further crowded by vehicles operated by lawyers, litigants, and courthouse personnel who found it convenient to park in the lot and to walk to the Norwalk Superior Court building across Belden Avenue. This combination meant that the parking lot was constantly jammed with vehicles; Ritz briefly resorted to booting vehicles that were unlawfully parked there. But the Pathmark supermarket closed down in 1998, and that space has been vacant for seven years. Because of

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the Pathmark vacancy, the demand for parking spaces is vastly reduced. The remaining retail tenants occupy 40,000 square feet and have the use of 262 surface parking spaces; but it is only because Ritz has been unable to rent out the Pathmark box to a similar tenant (Home Depot at one time negotiated to lease the space) that AutoZone and the other tenants have such a favorable parking-to-retail ratio. Berliner Testimony. AvalonBay's Response: Denied. See AvalonBay's Response to ¶ 24(c) and Ritz's Response, above. Plaintiff's Proposed Finding of Fact: 44. The Proposed Development does not allow for any parking in the Reserved

Parking Area. Testimony of Mark Robbins and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. Retail parking spaces, including 15 spaces dedicated to the exclusive use of AutoZone's customers, will be located on the footprint of the existing surface parking lot in a location as convenient for AutoZone's customers as the current parking configuration. Lease, plans, and testimony of Mark Robbins, Eric Berliner, Peter Kastl and Mark Forlenza. See also AvalonBay's Response to ¶ 42, above. Plaintiff's Proposed Finding of Fact: 45. The character of the parking will be changed from an open field to covered

parking under a building with limited access. Plans, pictures and lease. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted that the parking will be changed from an open field to covered parking at grade. Denied that there will be limited access as a result. Plans and testimony of Mark Robbins, Peter Kastl and Mark Forlenza.

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(10).

Accessibility Plaintiff's Proposed Finding of Fact:

46.

Presently, there are two (2) points of ingress and egress to the open field parking

lot in Riverview Plaza. Plans and testimony of Mark Robbins and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted. Plaintiff's Proposed Finding of Fact: 47. After the Proposed Development, there will remain the same access off the street;

however, interior circulation will be dramatically changed. Plans and testimony of Robert Blank, Mark Robbins and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted that access to the surface parking lot from the street will remain the same. Denied that interior circulation at Riverview Plaza will be dramatically changed and that internal circulation after development will not be convenient for retail customers. Interior circulation at Riverview Plaza will be enhanced by widening Burnell Boulevard and converting it into a two-way road, which will allow for full vehicular access around the shopping center. In addition, traffic circulation will be enhanced by the creation of dedicated loading areas in front of the retail stores such that delivery trucks need not park in the fire lane. Loading capabilities will be enhanced. There will be dedicated loading spaces directly in front of the AutoZone store near the front door, as well as a loading area on Belden Avenue adjacent to the store. Site Plan Application, plans and testimony of Mark Robbins, Peter Kastl and Mark Forlenza.

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Plaintiff's Proposed Finding of Fact: 48. There will no longer be many drive aisles. From Belden Avenue, there will be

one (1) entry point to the parking closest to AutoZone. It will be covered and under a building. There are no close parking spaces. The customer must travel down the aisle and around if no spaces are available rather than enjoy the many options a customer now has. Plans and testimony of Robert Blank, Mark Robbins and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay denies that there will be no close parking spaces and any implication that parking or interior circulation at Riverview Plaza will be inconvenient for retail customers following construction. Retail parking spaces, including 15 spaces dedicated to the exclusive use of AutoZone's customers, will be located in an area as convenient to the AutoZone store as the present parking configuration. Moreover, the surface parking in front of the AutoZone store will continue to be accessible from both Cross Street and Belden Avenue. Lease, Site Plan Application, plans and testimony of Mark Robbins, Peter Kastl, Mark Forlenza, and Eric Berliner. Plaintiff's Proposed Finding of Fact: 49. Further, once parked, the distance of travel from the parking space to the

AutoZone front door will increase. Further, the travel for the customer will be restricted to the driveway in which cars are entering ­ there will be no sidewalk or crossing areas for retail customers. Plans and testimony of Robert Blank, Mark Robbins and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. Retail parking spaces, including those dedicated to the exclusive use of AutoZone's customers, will be located on the footprint of the

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existing parking lot in a location convenient for AutoZone's customers. AutoZone's statement that customers will have to travel a greater distance to the front door is without support and ignores the fact that current travel distance is not uniform but varies given the use by multiple retailers and their customers of a common parking area. Moreover, the Proposed Development is designed with concrete, traffic-calming pavers to act as a large sidewalk and crossing area for pedestrians and retail customers. Site Plan Application, lease, plans and testimony of Mark Robbins, Peter Kastl, Mark Forlenza and Eric Berliner. Plaintiff's Proposed Finding of Fact: 50. The existing site provides an ideal retail location on account of its location,

accessibility from major thoroughfares, accessibility from the parking lot to the store, excellent visibility, and convenient customer friendly parking. Testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that Plaintiff's subjective characterizations and opinions are not facts and therefore AvalonBay neither admits, nor denies them; to the extent that a response is required, they are denied. Subject to and without waiving the foregoing objection, the Riverview Plaza AutoZone location is not an ideal retail location from AutoZone's perspective because: (1) it has substantially less retail space than the 7,000 square foot AutoZone prototype store; (2) it is not a free-standing building; (3) it does not have dedicated parking; (4) it lacks a dedicated loading area; (5) its parking lot is directly across Belden Avenue from the Norwalk Superior Court building, and unauthorized parking of vehicles by visitors to the courthouse in the Riverview Plaza parking lot has been an ongoing problem and has interfered with AutoZone customers; and (6) it shares a common parking lot with a

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(presently vacant) 49,000 grocery store space, which Ritz is free to re-lease to another grocery store (or other tenant) if the Proposed Development does not proceed. AutoZone has considered and investigated the relocation of the Riverview Plaza AutoZone store several times, beginning prior to its becoming aware of the Proposed Development. AutoZone leased property for a relocated Norwalk store nearby the Riverview Plaza site on West Avenue/Merwin Avenue from Norwalk Currie Tire Company, Inc. The financial projections prepared by AutoZone in connection with the leasing of that site concluded that the store would meet AutoZone's financial parameters for opening a new store and would, in fact, generate comparable sales to those of the Riverview Plaza store. Further, AutoZone has considered opening a second location in Norwalk. A second Norwalk store would compete with the Riverview Plaza store. Plans, photographs, demonstrative exhibits, testimony of Mark Robbins, Eric Berliner, Peter Kastl and Robert Blank, and deposition testimony of Ken Murray, Susan Valenti, John Michael Martin, Shawn Sheikhzadeh and James Butler. See also AvalonBay's and Ritz's Responses to ¶ 43, above. Plaintiff's Proposed Finding of Fact: 51. The Leased Premises has an end cap location with plentiful, unobstructed and

convenient open field parking. Plans, pictures, lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that Plaintiff's subjective characterizations and opinions are not facts and therefore AvalonBay neither admits, nor denies them. Subject to and without waiving the foregoing objection, denied. Moreover, AutoZone's statement is inconsistent with the fact that the lease provides AutoZone with parking in a

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common parking lot shared by multiple retailers and their customers. Lease, plans and testimony of Mark Robbins, Eric Berliner and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 52. The parking is immediately adjacent to the Leased Premises. Plans, pictures,

lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Admitted that the surface parking lot is adjacent to the Leased Premises. However, not all parking spaces are close to the AutoZone store. Many spaces are located a significant distance from the store. Given that AutoZone currently has no dedicated spaces and shares the parking lot with numerous other tenants, the spaces closest to the store are not necessarily available to AutoZone customers at any given time. Photographs, plans, Lease and testimony of Mark Robbins, Eric Berliner, Peter Kastl and Mark Forlenza. See also AvalonBay's Response to ¶ 50, above. Plaintiff's Proposed Finding of Fact: 53. Access to the parking spaces is excellent. Plans, pictures, lease and testimony of

Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that Plaintiff's subjective characterizations and opinions are not facts and therefore AvalonBay neither admits, nor denies them. Subject to and without waiving the foregoing objection, denied. See AvalonBay's Response to ¶ 52, above.

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Plaintiff's Proposed Finding of Fact: 54. The Leased Premises has: a. Excellent visibility from Cross Street; b. Excellent visibility from Belden Avenue; c. Is located near Route 7; d. Enjoys easy access from all directions; e. Is located in an area close to population centers that utilize the retail center. Plans, pictures, lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects to subparagraphs a, b, d and e on the grounds that plaintiff's subjective characterizations and opinions are not facts. Subject to and without waiving the foregoing objection, subparagraphs a, b, d and e are denied. See AvalonBay's Responses to ¶¶ 8, 36, 37. Subparagraph c is admitted. Plaintiff's Proposed Finding of Fact: 55. The Proposed Development will negatively and adversely affect the desirability

for AutoZone customers to frequent its store on account of: a. Reduced accessibility; b. Reduced visibility; and/or c. Reduced convenient parking. Plans, pictures, lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that plaintiff's subjective characterizations and opinions are not facts. Subject to and without waiving the foregoing

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objection, denied. There will continue to be two points of ingress and egress from the southerly streets to Riverview Plaza. Interior site circulation will be enhanced. Moreover, unlike retail sales, which typically are made to customers physically present in the Norwalk store, commercial sales are typically transacted over the telephone and the goods are then delivered to the customer's place of business. Site Plan Application, photographs, plans, demonstrative exhibits and testimony of Mark Robbins, Eric Berliner, Peter Kastl, Mark Forlenza and Alex Oliphant. See also AvalonBay's Responses to ¶¶ 8, 24(c), 36-40, 50, above. Plaintiff's Proposed Finding of Fact: 56. The benefit of the end cap location will be diminished on account of the

placement of a new building adjacent to the store. Plans, pictures, lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that plaintiff's subjective characterization and opinion is not a fact and therefore AvalonBay neither admits, nor denies it. Subject to the foregoing objection, denied. Photographs, plans, demonstrative exhibits, Lease and testimony of Mark Robbins, Eric Berliner, Peter Kastl and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 57. The desirability of parking will be diminished in at least the following ways: a. No open field; b. Obstructed parking; c. Lack of convenient access to parking areas; d. Lack of convenient access to the store from the parking areas. Plans, pictures, lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. -34-

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AvalonBay's Response: Denied. The parking configuration under the Proposed Development will provide retail customers with convenient parking and access to the retail stores. Further, 15 dedicated spaces will be provided to AutoZone. See AvalonBay's Responses to ¶¶ 24(c), 42, 44, 48-50, 55, above. Plaintiff's Proposed Finding of Fact: 58. Visibility will be significantly diminished in that a large building will be placed

where the open parking field presently exists. Plans, pictures, lease and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: See AvalonBay's Responses to ¶¶ 8, 36-40, above. Plaintiff's Proposed Finding of Fact: 59. The atmosphere of the shopping center will be altered in style and appearance

making Riverview Plaza less desirable to a convenience auto parts retailer. Plans and testimony of Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that plaintiff's subjective characterization and opinion is not a fact. Subject to and without waiving the foregoing objection, denied. Plaintiff's Proposed Finding of Fact: 60. As a result of the Proposed Development, there will be a substantial change in the

layout of the Shopping Center. Plans. Ritz's Response: See AvalonBay's Response, below.

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AvalonBay's Response: AvalonBay objects that plaintiff's subjective characterization and opinion is not a fact. Subject to and without waiving the foregoing objection, denied. Lease, plans and testimony of Mark Robbins, Peter Kastl, Eric Berliner and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 61. The change in the layout of the Shopping Center will have an adverse or material

effect upon visibility of the AutoZone store and its signs. Plans and testimony of Terry McKee, Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: AvalonBay objects that plaintiff's subjective characterization and opinion is not a fact. Subject to and without waiving the foregoing objection, denied. Plans, photographs, demonstrative exhibits and testimony of Mark Robbins, Peter Kastl, Eric Berliner and Mark Forlenza. Plaintiff's Proposed Finding of Fact: 62. The change in the layout of the Shopping Center will have an adverse or material

effect upon accessibility of the AutoZone store for its customers. Plans and testimony of Terry McKee, Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. See AvalonBay's Responses to ¶¶ 4, 24(c), 27, 30-35, 49-57, above.

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Plaintiff's Proposed Finding of Fact: 63. The change in the layout of the Shopping Center will have an adverse or material

effect upon parking for the AutoZone store. Plans and testimony of terry McKee, Robert Blank and Alex Oliphant. Ritz's Response: See AvalonBay's Response, below. AvalonBay's Response: Denied. See AvalonBay's Responses to ¶¶ 4, 24(c), 27, 30-35, 49-57, above. Plaintiff's Proposed Finding of Fact: 64. AutoZone has reasonably withheld its consent to the Proposed Development.

Plans, pictures, lease, letters of January 20 and February 7, 2002, faxes of January 3 and 8, 2002, letters of March 17 and March 20, 2003 and testimony of Terry McKee, James O. McClain, Robert Blank and Alex Oliphant. Ritz's Response: Denied. AutoZone failed and refused from the outset to give any serious consideration to the Development or to provide objections based on facts rather than supposition and conjecture. When Eric Berliner called Jim McClain in 2001 to initiate discussions over the Development and the plans, McClain told Berliner AutoZone would never approve of anything, and they wanted it to remain exactly as it is, without even seeing the plans. Subsequently, Berliner made multiple attempts to engage McClain in discussions, but McClain simply did not return phone calls. Testimony of Eric Berliner. See also AvalonBay's Response, below. AvalonBay's Response: Denied. From AvalonBay's provision of the preliminary plans to AutoZone in December, 2001, AvalonBay has offered to discuss the project and work with AutoZone in order to address any concerns of AutoZone. AutoZone has been unresponsive in

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many instances and has summarily refused to enter a meaningful dialogue with AvalonBay. For example, Mr. McClain of AutoZone demanded from the outset that AvalonBay and Ritz cancel their plans. Mr. McClain made this demand after spending no more than half an hour of his time considering the plans sent by AvalonBay. On April 18, 2002, AvalonBay presented AutoZone with a modified site plan, specifically designed to address AutoZone's concerns. The plan: · · · · · · · eliminated a sub-grade garage, in order to improve construction logistics provided AutoZone with 15 dedicated parking spaces included the installation of a new pylon sign set back and cut the corner of one apartment building to increase visibility of the AutoZone store provided new store fronts phased construction to maintain access and parking during construction designed the new parking field to wrap the retail space on two sides

To further address AutoZone's concerns, Mr. Robbins flew to Las Vegas to present AvalonBay's plans to AutoZone's Terry McKee. Mr. Robbins informed Mr. McKee of the modifications to the site plan and additional aspects of the project that would benefit AutoZone, including: · · · · · eliminated the 49,000 square feet in retail space formerly occupied by the Pathmark Grocery Store, which previously demanded the majority of the parking field the enhancement and improvement of signage, bringing it closer to the intersection of Belden Avenue and Cross Street increased and enhanced circulation in the shopping area converting Burnell Boulevard in the rear of Riverview Plaza to a two-way road, which effectively creates full circular access around the shopping center enhancement of pedestrian access

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· ·

an increase in pedestrian traffic resulting from the creation of the river walk the addition of approximately 650 residential tenants, most of whom would own automobiles

Notwithstanding AvalonBay's modifications to the plans and offers to work with AutoZone, AutoZone has refused to give its consent to the Proposed Development. Although it has refused to consent, AutoZone still has not determined whether in fact its business at Riverview Plaza will be impacted either during or after construction to support any commercial justification for withholding its consent. Phase One Diagram (PK0021), Site Plans, testimony of Mark Robbins, Eric Berliner, Mark Forlenza, William David Gilmore, Terry McKee, James McClain, Alex Oliphant, and Robert Blank and deposition testimony of Ken Murray, John Michael Martin, Richard Abate, William David Gilmore and Shawn Sheikhzadeh. B. AVALONBAY'S ADDITIONAL PROPOSED FINDINGS OF FACT AND PLAINTIFF'S AND RITZ'S RESPONSES AvalonBay's Additional Proposed Finding of Fact: 1. AutoZone commenced the instant litigation by Complaint dated February 26,

2003, in which AutoZone alleged that consummation of the Development Plan would breach the Lease. (Complaint, Docket Entry No. 1.) Plaintiff's Response: Admitted. Ritz's Response: Admitted.

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AvalonBay's Additional Proposed Finding of Fact: 2. AutoZone's Complaint alleged anticipatory breach of contract, breach of contract,

and breach of the covenant of good faith and fair dealing against Ritz, and tortious interference with contract against AvalonBay. (Complaint, Docket Entry 1.) Plaintiff's Response: Admitted, however, plaintiff objects to the relevance. Ritz's Response: Admitted. AvalonBay's Additional Proposed Finding of Fact: 3. AutoZone's Complaint sought injunctive relief, specific performance, a

declaratory judgment and money damages. (Complaint, Docket Entry 1.) Plaintiff's Response: Admitted, however, plaintiff objects to the relevance. Ritz's Response: Admitted. AvalonBay's Additional Proposed Finding of Fact: 4. AutoZone applied for a temporary injunction, which this Court denied without

prejudice on December 1, 2003. (Motion by ADAP, Inc for Temporary Injunction, Docket Entry 4; Endorsement denying motion for Temporary Injunction dated March 3, 2003.) Plaintiff's Response: Admit