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2010-10-04
Raynham, MA. After 5 Year Battle, Wal-Mart Competitor Runs Out of Legal Options

On April 15, 2009, Sprawl-Busters reported that a proposed Wal-Mart supercenter in Massachusetts had been thrown into a deep freeze. A rival grocery chain store, the Demoulas Super Markets Inc. of Tewksbury, Massachusetts, the parent company of Market Basket supermarkets, had taken Wal-Mart to court over a proposal superstore in Raynham, Massachusetts.

Demoulas is the owner of the Market Basket Plaza on Route 138 in Raynham, Massachusetts. Demoulas filed their lawsuit in May of 2005, naming the Raynham Planning Board and Wal-Mart as defendants. Five years later, Demoulas has finally exhausted its legal appeals. The Selectmen in Raynham announced recently that the Massachusetts Supreme Judicial Court has ruled that the Superior Court decision that favored Wal-Mart and the town, was final. This will mean a second Wal-Mart superstore in a town with less than 14,000 people. The Selectmen in Raynham are not exactly thrilled by that prospect.

Demoulas challenged the legality of a Planning Board vote made on May 2, 2005 to grant Wal-Mart a special permit, paving the way for a 208,622-s.f. superstore at the former Par 3 golf course, located next to the Market Basket Plaza, close to the Taunton, Massachusetts line. Demoulas charged that the Planning Board made its decision without full review of plans and without proper consideration of the impact of increased traffic on area roads.

Demoulas sought to overturn a decision by the Planning Board to accept a subdivision and a site plan under one heading, after waiving a review of the subdivision plan. Demoulas said the board failed to fully consider evidence during the public hearing phase of the project.

The Planning Board did not consider the negative impact of increased traffic and the impact of an offer by Wal-Mart to pay for new traffic lights along the Route 138 corridor, as well as a new traffic light at the entrance to their store. The superstore is projected to raise traffic by 40% near the site. Demoulas asserted that the proposed traffic light near the Wal-Mart entrance was too close to a traffic light located in front of their plaza. This would create traffic delays and gridlock along the two-lane Route 138 roadway.

Demoulas argued that the Raynham Planning Board failed to consider the benefits of a smaller store when members voted unanimously to approve project. But in his decision, Judge Robert Cosgrove stated that there was no precise method for determining the best store size. A Superior Court judge also denied an appeal of the project by the City of Taunton, which was filed over concerns with traffic and sewer use from the new store.

On March 14, 2008, Sprawl-Busters reported that the closing arguments in the case were heard in Superior Court in Fall River, Massachusetts. The Demoulas lawsuit had delayed Wal-Mart for four years. The trial, which was a non-jury trial, lasted about seven weeks. Superior Court judge Robert Cosgrove had the final decision to make, and it took him roughly a year to make his ruling.

According to the Taunton Gazette, Attorney Julie Pruitt Barry, representing Demoulas, said that the Wal-Mart superstore would add roughly 11,000 cars on Route 138, which would create "a potential and undisputed increase in traffic created by Wal-Mart." She said Demoulas was not motivated by "a fear of competition," because Market Basket customers are very loyal. "They go to Demoulas supermarkets because of the price and quality," Barry explained. She charged that the Planning Board "exceeded its authority and abused its discretion," by granting a sewer extension without first seeking approval from residents at a town meeting.

Wal-Mart's lawyer said the real reason for the lawsuit was increased competition to Market Basket. "It's clearly the 500-pound gorilla that's been sitting in the corner during every day of the trial," Wal-Mart's lawyer said. "Let's talk about what really is at issue." Wal-Mart described Demoulas' case as "flimsy," and "threadbare," and urged the Judge not to consider issues over environmental and economic impacts that were ruled out in previous court decisions.

The two sides disagreed over the issue of sewer service to the site. Demoulas said that the city of Taunton believes that Wal-Mart has to get the city's approval to install a 2,000 foot extension of sewer pipe. Wal-Mart said it does not need Taunton's approval.

The Mayor of Taunton admitted in 2005 that "the construction of Wal-Mart on Route 138 will be devastating to Taunton. Taunton will get all the traffic while Raynham gets all the fees and tax revenues."

On March 16, 2009, the Raynham Selectmen were informed by the town's lawyer that Judge Cosgrove had affirmed the decision of the town's Planning Board from 2005. The Judge dismissed Demoulas' appeal. The chairman of the Raynham Selectman, Joe Pacheco, indicated that Wal-Mart was now free to start applying for permits.

But Demoulas had 3 months to appeal the ruling. The Demoulas store directly abuts the proposed supercenter. If this store is built, Wal-Mart will have two supercenters in Raynham. The 220,000 s.f. Supercenter #2021 is located on Paramount Drive in Raynham, a few minutes away. Wal-Mart has indicated that it will start with a 148,000 s.f. store, and later add the 60,000 s.f. As of 2007, there were only 13,641 people in Raynham, a town with two big superstores.

On April 14, 2009, Wal-Mart got the bad news: Demoulas Supermarkets had appealed the Superior court ruling, which put the project on hold for another year or more. In June of 2010, a Massachusetts Appeals Court agreed with Judge Cosgrove, and on July 19, 2010, Sprawl-Busters reported that the Demoulas company was not finished with Wal-Mart: they took their appeal to the Supreme Judicial Court. Despite the September 15, 2010 SJC ruling, Demoulas may still be able to delay the project further.

Wal-Mart said last July that it was ready to move ahead. "We intend to move forward with our new store as soon as the process allows so our Raynham-area customers can save money so they can live better," a Wal-Mart spokesman told the Raynham Call newspaper. The retailer must now begin the permitting process. Raynham's Building Commissioner Dennis said it could take Wal-Mart another six to nine months to finish the permitting process, which includes review of the site plan and issuance of a building permit -- which also could be appealed by Demoulas.



What you can do: The Taunton Gazette reported that the town of Rayhnam was burdened by "Wal-Mart's massive two store commitment to their community."

The Gazette said that the existing superstore in Raynham "places a heavy burden on local police and fire forces. The newspaper said that in one recent year, Wal-Mart alone was responsible for 300 shoplifting calls to the store. "A second store across town would double the demand," the Gazette said.

Raynham Selectmen Chairwoman Marie Smith feels very unimpowered by the coming of the new store. "We can't stop it," the told the Gazette. "It's going to come whether we like it or not."

It's not often that you see one retailer take on another in court. In this case, Demoulas has deeper pockets than the usual opponent Wal-Mart faces. They have now held Wal-Mart off for 5 years, costing the company as much as half a billion dollars in sales.

Citizens groups have to struggle to raise the cash to go toe-to-toe with Wal-Mart. That was not a problem for Demoulas. Market Basket stores are a major discount competitor in Massachusetts, and the company has a reputation for low-cost groceries. Demoulas is no doubt unhappy with the court decision, and could continue to try to delay the superstore. Demoulas operates roughly 60 supermarkets in Massachusetts and New Hampshire.

Readers are urged to email Raynham Selectman Joseph Pacheco at Joe@JoePacheco.net with the following message: "Dear Selectman Pacheco, It's hard to believe that Raynham loves big box sprawl so much that it wants two huge Wal-Mart supercenters a few minutes apart. Demoulas has been the only thing standing between you and an absurd over-saturation of your small community by national chain stores. You know that Raynham does not need two giant superstores. You know that this store will hurt Taunton, and undermine its focus on its historic downtown. Yet little Raynham, which was carved out of Taunton -- is now greedily wasting its resources on a company that cannot keep from cannibalizing its own stores.

This second superstore will draw most of its sales from the existing Wal-Mart in Raynham, and will not net any new jobs, once you subtract out the jobs lost at other local grocers when they close. If you lose your Market Basket, what gain will this last five years of legal wrangling brought you? How many more big box stores will you allow to sprawl all over your community. How much cheap Chinese imports can one small town buy?

Your Chairwomen told the media that Raynham is stuck with Wal-Mart, 'whether we like it or not.' When is the Board of Selectmen going to take back control over growth?

Now is the time to impose a cap of 70,000 s.f. on the size of retail buildings, and put in place a demolition bond in case Wal-Mart one day decides to shut down one of its redundant locations in your town.

During the site plan review process, look carefully at the traffic impacts, and work towards shrinking the scale of this huge store. Otherwise, you will eventually be left with one or both of your Wal-Mart superstores sitting empty -- with no other retailer willing to fill an empty space that huge."










 
 
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