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Actual Size May Vary
by Ron Davis
An anchor tenant of a Georgia shopping center has lost a long-running battle over the square footage permitted for a competing store.
The shopping center, Galleria Mall in Warner Robins, has leased space to the anchor tenant, Belk, Inc., since 1989. But it is an attachment to that lease agreement that has caused the dispute between the two parties.
That attachment is a site plan that depicts the shopping center and previously included an 86,479-square-foot "future proposed discount department store." It also originally included a statement that "no buildings nor other structures" can be erected at the shopping center site "except as shown in the site plan."
Over the years, however, Belk and the shopping center developer amended the lease three times. The third amendment substitutes a new site plan that shows a 70,000-square foot "proposed future store" to be built at the shopping center. And for the first time the following words appear in the agreement: "Actual configuration & size may vary."
Some years later, the shopping center developer persuaded Dillardís, Inc., to construct a 101,298-square-foot department store at the center. In response, Belk objected, arguing that the 70,000-square-foot figure represented a maximum and that the proposed Dillardís store exceeded that limit.
The shopping center development replied that the Belk lease and attached site plan allow the size of the competing store space to increase. Belk then sued.
A Georgia appellate court, in agreeing with the shopping center developer, explained, "Since the site plan expressly provides that the actual size and configuration of the future store may vary and places no limit on that variance, we will not insert words to limit the permitted variance. In this context, the [site plan] simply shows the intended location of the future store, and the 70,000-square-foot figure simply reflects an approximation that places no outside limit on the size of the future store." (Belk, Inc. v. Warner Robins Zamias L.P., 555 S.E.2d 19 [Ga.App. 2001])
Decision: October 2001
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