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2008-08-20
Moon, PA. Citizens File Lawsuit Against Township, Wal-Mart

On June 12, 2008, Sprawl-Busters returned from a site visit to Moon Township, Pennsylvania, reporting that citizens were quickly organizing to fight a proposed Wal-Mart superstore. Initially, the township's supervisors took one giant step for mankind -- by voting against the plan -- but one week later they reversed their decision and voted in favor of the Wal-Mart. This sudden change of heart was not brought about by any changes in Wal-Mart's plan, but because of bad legal advice from the lawfirm hired by the township, who scared the supervisors into believing their own personal assets could be on the line if Wal-Mart sued the township. The supervisors voted 3-2 against a Wal-Mart preliminary plan for a superstore on July 3rd. But seven days later, at a hastily called meeting on July 10th, they reversed their vote to 4-1 in favor of the plan. Two of the supervisors who voted against the plan said they had "misgivings about the legality of their vote." All Wal-Mart had to do in Moon was threaten to throw its legal weight around, and the supervisors backed down. Wal-Mart has applied to build a 148,561 s.f. superstore on the site of an abandoned 1960s-era mall known as the West Hills Shopping Center, located on one of the community's major intersections, University Boulevard and Brodhead road. There are also two major housing developments abutting the project on its western side. "We are working toward our No 1 goal," Supervisor Chairman Tim McLaughlin told the Pittsburg Post-Gazette in June. "To have the best Wal-Mart in Western Pennsylvania." There's lots of competition, because Wal-Mart has 15 stores within 25 miles of Moon, including a Wal-Mart three miles away from this site. The proposed Wal-Mart is incompatible with all the planning the township has done over the past 5 years regarding the special overlay district where this site is located. Township officials developed a plan that would maintain the University Boulevard corridor's commercial success. That plan was the Beers School Road Strategic Plan, which included a conceptual design for improvements to University Boulevard to improve traffic flow, enhance pedestrian access and mobility and develop streetscape improvements. The plan recommended implementing urban design changes to the corridor such as landscaping, sidewalks, building facades, public amenities and a gateway. The plan was presented and approved by the Moon Township Board of Supervisors in 2003. The township went further, and created the University Boulevard Overlay district, a tool to implement their strategic plan for the area. Then Wal-Mart entered the picture, and the strategic plan went out the window. In January of 2007, the public learned that the West Hills Shopping Center, had been sold to Wal-Mart for $4.7 million. During their review of Wal-Mart's preliminary plan, the Supervisors quickly became concerned over the potential traffic congestion at the already difficult intersection. Chairman McLaughlin told Wal-Mart representatives at the end of April that he didn't want to go to his grave knowing that his board was responsible for creating a traffic gridlock. "We have a quality of life that is outstanding," McLaughlin said. "We want to protect our resident's quality of life. We don't want the center of our township to become a gridlock." Another supervisor said he thought Wal-Mart's traffic study was flawed. The overlay district has a series of design guidelines that were created to heighten the public amenities in the area, to improve traffic flow and enhance pedestrian access. Wal-Mart has asked the supervisors for a conditional use modification of many of these design features, because they clash with a traditional big box store. The objective of the University Boulevard overlay district was to create a district for "regional scale mixed use development," not suburban sprawl. Wal-Mart cannot meet the requirement for ground floor transparency (i.e. windows), and the overlay district flatly states: "Buildings which exhibit long, flat facades and continuous linear strip development are prohibited." The parking lot does not conform to the design guidelines, so Wal-Mart has asked the township to make the overlay district fit the retailer's needs -- rather than the district's requirements. On July 2nd, the Supervisors met to consider a series of variances Wal-Mart wanted from the township's zoning rules. In a meeting that ran late into the night, the Supervisors voted 3-2 to reject the retailer's preliminary development plan. As many as 90 residents crammed into the municipal building to voice their concerns. One resident described the proposal as a "10-pound building [sitting] on this 5-pound site." John Augustine of Moon First asked the township to allow an independent engineering firm to review Wal-Mart's plan. In the end, Supervisors Marvin Eicher, Michael Hopper and Jim Vitale opposed the plans, but Supervisors Chairman Tim McLaughlin and Frank Sinatra voted to support a sprawling suburban design. Wal-Mart walked out of the room with four approved variances -- including a narrowed setback provision that allows the company to build within 10 feet of the property line of a large residential complex that abuts the project. "Their plans just didn't meet the requirements of our ordinances or the intent of them. We want developers to come into the community, but we want them to meet our standards. They might be high standards, but I believe the quality you expect is the quality you get," Supervisor Eicher explained. The Supervisor told the Pittsburg Tribune-Review, "They failed to properly address our ordinance. They need to readdress the ordinances and resubmit the plan." "They can start all over again and do it clean," Supervisor Vitale said. But a week later, before the Supervisors even had time to write up their decision, the Board quickly assembled an unscheduled meeting, and changed their mind. The supervisors chose to ignore the township's Comprehensive Plan, the Beers Road strategic plan, and the purpose of the overlay district. Supervisor Eicher was the only official to steadfastly oppose the plan. The Board did not rescind the 7 denied variances -- so Wal-Mart will have to reformat its proposal when it submits a final plan for approval. The change in vote by Supervisors Hopper and Vitale was attributed to the opinion of the township's lawfirm. Attorney Myron Sainovich counseled the Board that Wal-Mart might sue the township if they denied the preliminary plan. "You cannot deny the plans based on your not liking that type of store," Sainovich was quoted as saying by the Beaver County Times. "Because the conditional uses are denied is not sufficient legal basis for denying a major land development plan," the township's attorneys said. Supervisor Hopper, who flip-flopped on his vote, told the Tribune that his reversal came about because the township's lawyers told him that he personally -- not just the township -- could be sued by Wal-Mart if the project were not approved. This week, Moon residents gave the supervisors and Wal-Mart a little legal advice of their own. A group of residents has retained Pittsburg attorney Barbara Ernsberger, of the law firm Behrend and Ernsberger, P.C. Ernsberger filed an appeal late last week against the Moon Supervisors and Wal-Mart in the Allegheny County Common Pleas Court. The resident's appeal charges that supervisors' decision was "arbitrary, capricious and discriminatory." The complaint also states that concerns over litigation are outside the scope of their job of keeping Wal-Mart accountable to Moon zoning codes. The appeal also seeks to overturn the conditional use modification that allows Wal-Mart to reduce the side setback of its development from 40 feet to 10 feet from the abutting apartment and condo complex on Brodhead Road. "That's my biggest concern," one of the plaintiffs, Edwin Nelson, told the Pittsburg Tribune Review. Nelson is a former Moon supervisor. "If they could build a smaller store, satisfy our traffic concerns and return to the 40-foot buffer, I would not necessarily be opposed to them," he said. Another plaintiff is Joseph Dentici, president of Franklin Square, a real estate company that owns the property leased to Kuhn's Quality Foods supermarkets, a grocery store located next to a Kmart located within site distance of the Wal-Mart site. Residets Anthony Mester and Jesse Nicholson also signed as plaintiffs. Attorney Santicola, on behalf of the township, told the Tribune that the legal appeal by residents was not timely, because all that has happened thus far is approval of a preliminary plan. By not respecting local zoning provisions, Wal-Mart's superstore has turned into another lawsuit for the shareholders to pay for.

What you can do: When Moon First residents walked into the supervisor's hearing room on July 10th, they were the only party in the room without legal counsel -- and the results show the difference. The township had its lawyer, Wal-Mart had its lawyer -- but the taxpayers who will be most affected were unrepresented. This vote for Wal-Mart was entirely based on a legal opinion by the township's lawyer, which was not countered by an attorney representing the residents. The Moon supervisors were intimidated by Wal-Mart's lawyer, and the township's lawyer, to reverse their vote. All of this was done before the Supervisors walked into the room to vote. Clearly either the two law firms directly communicated with one another, or the township's law firm discussed the matter over with concerned supervisors in executive session -- but much of this, if not all, was done in private, away from public view. One week the supervisors vote a project down, the next week they reverse course. The township lawyer's recommendation deflected litigation from Wal-Mart -- but in doing so, the township abandoned its own overlay district plans. Instead of protecting the health, safety and welfare of the resident of Moon, supervisors were voting to protect themselves. The supervisors had plenty of legal reasons to deny this plan -- all of them based on their zoning code -- not on whether or not they liked the store. If the township writes up findings of fact that demonstrate that a 100% retail project is an inappropriate use in an overlay zone designed for 'regional scale mixed use development,' then it is neither arbitrary nor capricious, and the courts are not likely to substitute their judgment for that of local officials. Instead of focusing only on the variances requested, the Supervisors lost sight of the overlay district goals and purpose. They could also have raised concerns over the fact that this project will be injurious to the use and enjoyment of other properties in the immediate vicinity. This proposed store serves a trade area that is far larger than that defined in the original Beers Road Strategic Plan that created the overlay district. The township's lawyers have used the threat of a lawsuit to short-circuit the review process, and suggest to the supervisors that they had no legal foothold at all to deny the project -- which just is not the case. The preliminary approval vote does not mean that the store will be built -- but is a signal that the supervisors have no stomach for taking on Wal-Mart. That left local opponents with little option but to pursue their legal rights to litigate themselves -- using the same blunt instrument that Wal-Mart used to get the Board to reverse its vote. Wal-Mart has jumped over the Moon regulations -- but whether they suceeed or not will depend largely on the citizen's group, Moon First. Readers are urged to email Supervisor Chairman Tim McLaughlin at tmclaughlin@moontwp.com with the following message: "Mr. Chairman, Now that your Board has reversed its vote on the Wal-Mart superstore preliminary plan, your work has just begun. Please give Wal-Mart a copy of the University Boulevard overlay district, and ask them to return with a much smaller store that will not require several new stop lights on Broadhead, that has the proper setbacks from residential land, that will not remain open all night, that meets all the parking and design standards in the district, and that is truly a mixed-use development that serves the Beers School Road trade area. Then ask them to underwrite the cost of an independent traffic impact study, slope stabilization study, a fiscal impact study, a noise study, a lighting/glare study, and an assessment of their impact on abutting residential properties. You have the right under your zoning code to deny this project, and use incompatibility with the overlay district and traffic congestion as just two reasons. Most of the objections to this plan are scale-related. If you write up your findings of fact, no Wal-Mart lawsuit will overturn your decision to deny. You have gotten overly cautious advice from your attorneys. Your personal assets are not on the line. If you had no power to deny, then why was Wal-Mart bothering to come before you? Yours is not just a pro forma review. If the township backs down every time a developer threatens litigation, then you really have no Overlay District, and you have no zoning left at all. The message to developers from this case is 'just show up with an attorney and you will get what you want in Moon.' This is the message you have sent by approving the preliminary plan. Now it's time to enforce your code, and make Wal-Mart fit Moon -- not the reverse."










 
 
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