On July 11, 2008, Sprawl-Busters reported that Supervisors in Moon township Pennsylvania 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. 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 township’s law firm, 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 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. Wal-Mart had asked the supervisors for a conditional use modification of many of the design features required by the overlay zone, 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 had 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. 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. Township 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. On August 20, 2008, Sprawl-Busters reported that Moon residents gave the supervisors and Wal-Mart a little legal advice of their own. A group of residents retained Pittsburg attorney Barbara Ernsberger, of the law firm Behrend and Ernsberger, P.C. Ernsberger filed an appeal 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. 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. This week, however, the project in Moon took another twist. The group Moon First sent the following release to Sprawl-Busters: “Moon Township Solicitor Michael Santicola announced in a late night meeting of the Moon Township supervisors September 2nd that Wal-Mart Corporation had failed to sign the Preliminary Plan that the Moon supervisors had approved in their July 10th meeting, which they originally denied on July 3rd. Furthermore, because the agreement had not been signed within the 30 day period required by ordinance, the preliminary plan is void but NOT the conditional use deviations approved by Moon Supervisors. This means that the residents of Moon can be harmed by any future development since the conditional use deviations already approved are still intact. Moon First is pleased with this action and hopes that Wal-Mart Corporation has come to a deeper understanding and appreciation for the interests, needs and desires of the Moon community. Moon First is under no illusion that Wal-Mart will just abandon this development project, but that if they re-apply that they will adhere to the requirements and ordinances, and vision of our Strategic Plan and relevant overlay district plans. We believe that the voice of the Moon community has been made clear against this Wal-Mart development as first conceived and we again hope that Wal-Mart has heard that voice and if they decide to go forward that they apply with a development plan that is high quality, scaled to fit ordinances, is of mixed-use and has thoroughly analyzed the traffic, lighting and sound impact and does not compromise the health, safety and welfare of Moon citizens, including the quality of life of it’s adjacent condo and rental residents. Moon First will remain engaged with our township government and it’s residents, citizens and small business community to monitor this development project and continue to work hard for the interests of our fellow Moon residents.
There’s been a lot of bouncing around the Moon on this project. One week the supervisors vote a project down, the next week they reverse course. One week it looks like a citizen lawsuit is needed, the next week Wal-Mart fails to meet a simple deadline. It’s not clear what Wal-Mart’s deliberate delay means in this case. Perhaps they expected a quick approval in Moon, and decided to pullback in the face of legal opposition. More likely is the theory that the company was not willing to accept some of the provisions of the overlay district, and are trying to determine how best to avoid them. The company could be responsive to the community, and scale down the size of the store, and adhere to the district’s requirements. 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. 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 preliminary approval vote did not mean that the store will be built — but was a signal that the supervisors had 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. Readers are urged to email Supervisor Chairman Tim McLaughlin at [email protected] with the following message: “Mr. Chairman, We are pleased to hear that Wal-Mart did not accept the Preliminary Plan within the one month timetable required. That’s good, because the Preliminary Plan was a bad plan. I hope that you will require the company to conform to the overlay district, and not give one more square foot of concessions to Wal-Mart. They could solve many of their problems by dramatically shrinking the store, and on their own volition adhere to the setback and design provisions the township painstakingly put into place. This company has the financial capacity to meet all the standards in the district. If they come back, 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. 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. Now that you have been given a second chance to consider the impact of this proposal, it’s time to enforce your code, and make Wal-Mart fit Moon — not the reverse.”
