Developer Sues To Stop Brick's Move To Terminate Foodtown Site Agreement

(The Foodtown site has been nothing but a parking lot since late 2009, when the old grocery store was demolished. Patch file photo)

The developer that was supposed to redevelop the former Foodtown site has filed a lawsuit seeking to stop Brick Township officials from terminating the redevelopment agreement, Brick officials announced Tuesday.

M&M Properties at Route 70, LLC, filed the lawsuit Dec. 3 in Superior Court in Ocean County in response to the township issuing a notice of default in September, citing the company’s failure to make any progress at the site, and failure to pay a deposit it was to have made when the agreement was signed in 2009.

The lawsuit, a copy of which was obtained by the Patch, seeks to void the termination notice, saying the township is at fault for the lack of progress because it has not obtained a needed permit from the state Department of Transportation.

“It has been 11 years since the township purchased the old Foodtown and nearly six years since M&M was selected to redevelop the site. And yet the property remains vacant; a financial burden that cannot be allowed to continue,” Mayor John Ducey said in a news release. “The council and I want to see this site developed as soon as possible. It is unfortunate that the redeveloper has chosen to sue the township and further delay progress on the site.”

M&M at Route 70 was chosen as redeveloper for the site in 2009 after submitting a proposal that included a 120-room hotel, retail space, a grocery store and two restaurant pads. But after being selected and signing an agreement with the township, Ducey said, M&M attempted to amend its original agreement to eliminate the hotel and construct a 192-unit condominium complex, citing research, they claimed, that the market would not support a hotel.

In late November, Ducey announced that an application had been filed to build a Residence Inn by Marriott on a parcel on Route 88. That application -- which Ducey said would likely go before the township Planning Board sometime in January -- is proof that the town can support a hotel, Ducey said.

“What is unfortunate is that while M&M has delayed and proposed condos, a developer is seeking approval to build a hotel less than a half-mile away,” said Mayor Ducey. “This demonstrates that their claim that a hotel couldn’t succeed in Brick Township is false.”

In September, the township sent M&M a notice of default as the required first step to the termination of the redevelopment agreement. Ducey cited the complete lack of progress on the site. In accordance with their agreement, M&M was to have purchased the site from the Township more than four years ago and commence construction over three years ago.

“Instead the land continues to generate no taxes while the township repays the debt that should have been paid off when M&M purchased the land,” the news release said. “The township has paid and continues to pay about $465,192 each year on debt service for the land and has spent $3.9 million to date due to M&M’s failure to move this project forward.”

M&M said the lack of the DOT permit has prevented it from doing anything.

“In 2011, the township applied to the New Jersey Department of Transportation for a permit required for any feasible redevelopment of the property,” it says in the suit. “To date, the township has been unable to obtain the aforementioned New Jersey Department of Transportation permit, which inability has precluded the plaintiff from progressing with most, if not all, the material aspects of the project.”

M&M says it demolished the old Foodtown building “at its own expense” and that the township spent money related to the project that it then demanded M&M reimburse, without giving M&M the right to object to the expenditure as specified in the Foodtown agreement, all during the time when Mayor Steven Acropolis and different council members were in office.

“Neither the mayor nor the council were in office when this property was purchased by the town or when this firm was chosen to redevelop the site nearly six years ago,” said Council President Susan Lydecker. “We are in office now and our main priority is the best interests of our community. We want to see the property developed privately. We want to see it back on the tax rolls.”

M&M also says in the lawsuit that it delivered the $100,000 deposit -- which Ducey cited in September as not having been paid, when announcing the township’s move to sever the agreement -- in October, but has received no reponse to that deposit or to the letter it included to the town, stating that it ”remains committed to working with the township and believes a mutually beneficial resolution can be achieved.”

“Six years is long enough to wait, especially when there were at least five other developers who bid to do this project,” Ducey said. “If one of them were chosen, I am sure there would be a completed project by now and we wouldn’t be dragged through litigation because we are doing the right thing for the taxpayers of Brick.’

Have a news tip? Email karen.wall@patch.com.

Stay on top of Patch’s local coverage of Brick by subscribing to the daily newsletter, here.

You can also post your own news, events and announcements on Patch by following these directions. Curious about how our new commenting platform, Disqus, works? Learn more about it here and start interacting with your community.