Moon, PA. Wal-Mart Litigation Blocks Its Own Proposal
Wal-Mart has taken the unusual step of blocking its own progress on a superstore proposal by filing a lawsuit against a community that has already said yes. The retailer is also asking the courts to force one township official to step down from the case because he is biased against Wal-Mart.
Sprawl-Busters first wrote about the small township of Moon, Pennsylvania -- just a stone's throw from the Pittsburg airport -- in June of 2008. We traveled to meet with a group of residents who were organizing to block a proposed Wal-Mart superstore at one of the busiest intersections in the small community. Almost two and a half years later, Wal-Mart is standing in its own shadow.
The retailer's plans for Moon, Pennsylvania were knocked off course during public hearings. On July 12, 2008, Sprawl-Busters reported that Supervisors in Moon township had taken one giant step for mankind -- by voting against a preliminary plan for a Wal-Mart superstore -- but one week later, under fear of litigation from Wal-Mart, they reversed their decision and voted in favor of the superstore.
The supervisors voted 3-2 against a Wal-Mart preliminary plan for a superstore on July 3, 2008. 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." The town's lawyer advised officials that if they voted against Wal-Mart, the giant retailer might sue them. Ironically, Wal-Mart ended up suing them anyway.
The officials apparently were not concerned that if they voted for Wal-Mart that their own taxpayers would sue them. All Wal-Mart had to do in Moon was threaten to throw its legal weight around, and the supervisors backed down.
Wal-Mart originally applied to build a 148,561 s.f. superstore on the site of a former 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.
The objective of the University Boulevard overlay district was to create a district for "regional scale mixed use development," not suburban sprawl. The overlay district flatly states: "Buildings which exhibit long, flat facades and continuous linear strip development are prohibited."
On August 20, 2008, Sprawl-Busters reported that Moon residents gave the supervisors and Wal-Mart a little legal advice of their own. The citizen's group Moon First filed an appeal against the Moon Supervisors and Wal-Mart in the Allegheny County Common Pleas Court. The residents' appeal charged that the supervisors' decision was "arbitrary, capricious and discriminatory."
The appeal sought to overturn the conditional use modification that allowed 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.
On November 12, 2008, Wal-Mart came back to the Supervisors for another vote. For the second time, the Supervisors voted to approve the retailer's plans -- but narrowly on a 3-2 vote.
On June 13, 2010, Sprawl-Busters reported that Wal-Mart had submitted a demolition plan for the existing shopping center, and, in the words of the town's planner, "Demolition could happen at any time." The town had given Wal-Mart a green light to begin demolition at the site before the latest plans even came before the Planning Commission.
If you visit the shopping center site today, all the stores have been demolished, except for one small Sherwin-Williams store which still has a lease in force to remain open. Sherwin-Williams cannot be removed from the site until May 31, 2012. Wal-Mart has indicated with three months after the paint store is gone, the building will be demolished.
On July 2, 2010, Sprawl-Busters noted that the Moon Township Planning Commission had voted 3-2 to recommend approval of the West Hills Wal-Mart -- which had grown to 151,000 s.f. Commission member Joseph D'Andrea voted against the plan, charging that Wal-Mart did not follow the township's comprehensive plan, which calls for village-like development in its Carnot overlay district.
Kenneth Behrend, the lawyer for the citizen's group Moon First, asserted that the developers' traffic impact study was wrong, and said that neighbors still had concerns about the lighting, noise and "unsafe areas" in the parking lot.
The day after the narrow approval by the Planning Commission, the township's supervisors met. One of the town officials, Marvin Eichler took issue with the small army of consultants that Wal-Mart brought to the Commission hearing. "Wal-Mart walks in with two attorneys and a court stenographer," Eicher was quoted as saying by the Beaver County Times. "That makes me suspicious -- just what is going on here?" That comment apparently ruffled Wal-Mart, which is now asking that Eicher be forced to recuse himself from further participation on the case.
"We are looking at an issue that could potentially go to court," Eicher told his colleagues. "That's why I want to know -- what will be the official record if we go to court?"
This week, according to the Beaver County Times, Wal-Mart is suing the township over two conditions that were placed on its July 7th vote for preliminary approval. The supervisors insisted that Wal-Mart get its traffic plan signed off by PennDOT, the state's transportation office, and second, that Moon would keep the right to approve any changes to township roads as a result of this project.
On August 20th, Wal-Mart filed an appeal in Allegheny County Court, asking the court to remove the two conditions, and to remove Supervisor Eicher. Wal-Mart claims that Eicher is biased against the retailer. Wal-Mart's lawyer said the supervisors act in a quasi-judicial manner, and that Eicher -- who eventually voted for the Wal-Mart plan with the two conditions -- was prejudiced against Wal-Mart.
Eicher's comment that he was suspicious of all Wal-Mart's lawyers prompted the recusal request. The retailer also charged that Eicher had inappropriately been involved in talking to Penn DOT about the transportation plan. Eicher has told the supervisors he will not step down from the case, and the township's lawyer told the Beaver County Times that Eicher's recusal was not warranted.
Wal-Mart complains that the supervisors are exceeding their legal authority by retaining control over any changes to township roads. "As written, it illegally provides the board final authority to approve off-site traffic improvements to state roads, despite the fact that Pennsylvania law vests authority to issue such approvals solely in PennDOT," the Wal-Mart appeal states.
The township fired back: "The developer must obtain approval from the board of supervisors prior to implementing any traffic modifications, changes, improvements, amendments, conversions or variations which will affect in any way the roadways owned and operated by the township of Moon." Court briefs are due October 7th.
What you can do: Moon taxpayers are now spending money to defend the supervisor's actions against Wal-Mart's legal assault.
In the past, when Wal-Mart threatened legal action, the supervisors folded. It is possible, therefore, that Moon officials now will seek some kind of settlement that softens the conditions.
Even if these legal issues get resolved, the newspaper says PennDOT could take months to grant a highway occupancy permit. "It wouldn't surprise me if it took a year to get that permit in place, for a development of this size," one local official told the Beaver County Times.
Moon First continues to oppose the project. Last July, the citizens' group sent out a flier to residents which read: "Ten years ago, the township spent $300,000, and with resident input in the form of focus groups, established a strategy for future development in our community. This strategy was called the Carnot Overlay District. The Overlay District included a 'town center' concept in the heart of our community... A town center would incorporate a mixed -- use development with smaller shops and offices with a down-scaled Wal-Mart that could resemble an Aldi's-type store."
Moon First asked: "Why can't our elected supervisors and their appointed planning commissioners, abide by the very vision that was established by its community residents 10 years ago?" The group said Wal-Mart read the comprehensive plan, and knew what that planned called for. "Instead of designing a store that meets our community's long held vision, they have forced their own store concept upon our officials. They have been intimidating and manipulative by asserting their corporate power upon our community. Their goals appear to be that of a corporate goliath who makes their own rules to force their will upon small communities, unless the residents stand firm and protect the quality of life in their community."
Moon First said the supervisors had "every right to tell Wal-Mart to come back with a plan that fits our overlay district. Tell Wal-Mart that we want a plan that not only meets their needs, but meets our needs with a mixed-use town center development."
There have been a lot of bumps on their trip to the Moon for Wal-Mart. The company could have been responsive to the community, and scaled down the size of the store, and adhered to the district's requirements -- but it attempted to blast away the opposition instead. The township abandoned its own overlay district plans. Instead of protecting the health, safety and welfare of the residents 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.
The township could have written up findings of fact that demonstrated that a 100% retail project is an inappropriate use in an overlay zone designed for 'regional scale mixed use development.' Instead of focusing 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. Local opponents had 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.
Readers are urged to email Supervisor Chairman Tim McLaughlin at email@example.com with the following message:
"Mr. Chairman, The latest plan submitted by Wal-Mart has grown even bigger, and more inharmonious with the overlay district it is in. Wal-Mart could solve many of their problems by proactively shrinking the store, and on their own volition create a mixed use plan. Instead, they show up with a small army of lawyers and a court stenographer to try and intimidate you. Now they have filed litigation after all. Their goal is to force you to settle.
Supervisors should never have approved a final plan on this site without an independent traffic impact study, a 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 had 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.
The township should stick firmly to the two conditions imposed in your approval. Don't settle with Wal-Mart by giving away control over Moon's roads. It's time to enforce your code, and make Wal-Mart fit Moon -- not the reverse.
Chairman McLaughlin, you have said you 'want to protect our resident's quality of life.' You were supposed to give your residents a town center -- instead they get a huge big box store. Don't cave into Wal-Mart legal pressure, and defend Supervisor Eicher's right to stay on this case."