Wal-Mart came to a public hearing this week in Moon, Pennsylvania with an unusual weapon: a court stenographer.
It seems the giant retailer knows that a lawsuit will follow its proposal for this small township, so it wants to make sure it gets the record straight. But as it turns out, the legal intimidation of bringing a stenographer may have backfired.
Sprawl-Busters first travelled to Moon, Pennsylvania in June of 2008. A group of residents in this Pittsburg suburb were organizing to block a proposed Wal-Mart superstore at one of the busiest intersections in the small community. Two years later, Wal-Mart is still trying to hit the Moon.
The retailer’s plans for Moon, Pennsylvania have been 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 3rd. But seven days later, at a hastily called meeting on July 10, 2008, 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.
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 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 have been before the Planning Commission.
This week, the Moon Township Planning Commission voted 3-2 to recommend approval of the West Hills Wal-Mart — which has now grown to 151,000 s.f.
The plan will now to go the township supervisors on July 7th. Commission member Joseph D’Andrea, who voted against the plan, said 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, charged 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?”
Wal-Mart has told the township that it also will bring its own court reporter to the supervisor’s hearing on July 7th. “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?”
One of the Planning Commissioners came to the supervisors’ meeting and told them they should ask Wal-Mart to change its plans to build a mixed-use plan instead — one that would be more like the town center concept that was recommended ten years ago for this land.
This aligns with the proposal the group Moon First has suggested for the past two years.
The citizens’ group is sending out a flier to residents this week which says: “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 asks: “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 says Wal-Mart had 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 says the supervisors have “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 be responsive to the community, and scale down the size of the store, and adhere 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 protected] 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 creating a mixed use plan. Instead, they show up with a small army of lawyers and a court stenographer to try and intimidate you.
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 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 the township backs down every time a developer hires a court stenographer, then you really have no Overlay District, and you have no zoning left at all. 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. We don’t want the center of our township to become a gridlock.’ You are running out of time to protect that commitment.”