Judge rejects injunction against Whole Foods and Hillsdale Drive Extended

At a hearing yesterday afternoon in Charlottesville Circuit Court, Judge Edward Hogshire denied an injunction to stop work on Hillsdale Drive Extended and the new Whole Foods grocery store.

In April, Kmart Corporation filed a lawsuit against the developer of Whole Foods, Meadowbrook Creek, LLC, for breach of lease. (Meadowbrook Creek is also Kmart’s landlord.) The suit states that construction of the road and other improvements planned for the property will eliminate 110 parking spaces in the Kmart parking lot, and asks for a halt to ongoing construction on the site.

“This sounds like a damages case,” said Hogshire.

Miles Dumville, Kmart’s representing attorney, told Hogshire that the losses Kmart had to endure due to construction are considerable. The store—the second best performing store in the Mid-Atlantic region, according to Dumville—has seen a three-percent decline (or approximately $250,000) in sales, while other Kmart stores experienced a one-percent increase.   

John Zunka, the attorney representing Meadowbrook Creek, LLC, questioned the timing of the lawsuit’s filing. Construction on the projects began in 2008 and, after a few stops, continued in late 2009.

Zunka said that while work resumed in December 2009, the lawsuit was only filed in April 2010, when the construction of the future Hillsdale Drive Extended was 60 percent done. According to Zunka, the road will be completed in 30 days.

The judge gave Kmart and Dumville the option to amend the suit to include the City of Charlottesville as a defendant, for its interest in Hillsdale Drive Extended. Meadowbrook Creek will have 21 days to respond to an amended suit.

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