Upper St. Clair grocery battle seen as legal, not uncommon

The redevelopment site along Washington Road in Upper St. Clair on Wednesday, July 2, 2014.
The redevelopment site along Washington Road in Upper St. Clair on Wednesday, July 2, 2014.
Photo by Justin Merriman | Tribune-Review
Matthew Santoni
| Saturday, July 5, 2014, 6:25 p.m.

Contractors removed trees and are moving dirt at the Upper St. Clair site where developers want to build townhomes, retailer outlets and a Whole Foods Market, but a rival grocer hasn't stopped funding court appeals of zoning changes for the project.

O'Hara-based Giant Eagle paid for residents' efforts to stop or stall the project at the intersection of Washington and Fort Couch roads, and experts say it's neither unusual nor illegal for companies to pay for other people's lawyers when they have a vested interest.

“The only reason anybody is doing this, at the end of the day, is for the moolah,” said Mark Yochum, a Duquesne University School of Law professor. “Giant Eagle benefits from the outcome.”

Traffic cited as factor

Giant Eagle officials acknowledged in May that they provided support to residents Moira Cain-Mannix and Margaret Witner, who filed multiple challenges to the development.

Company spokesman Dick Roberts said the fact that Whole Foods is a planned tenant didn't factor into the decision to support the objectors. The grocer, which has a supermarket nearby, shares the residents' concerns about traffic and the appropriateness of the zoning changes, he said.

“None of the objectors receiving legal and technical support from Giant Eagle are being compensated or receiving any financial benefit,” Roberts said. “The company is supporting the constitutional rights of area residents to ensure any development is carried out responsibly, in compliance with the law and on a level playing field.”

Common practice

Allegheny County records show Joseph R. Lucot, a senior vice president at Giant Eagle who lives in a subdivision next to the site, joined the latest challenge. After its filing, Witner withdrew from appeals, leaving Lucot and Cain-Mannix as plaintiffs.

Matthew Racunas, the attorney listed for Witner and Lucot, could not be reached for comment.

The developers, 1800 Washington Road Associates, signed a lease with Whole Foods for a store along Washington Road, less than a mile from Giant Eagle's Market District on Oxford Drive in Bethel Park.

Yochum said it's common for insurers, creditors or litigation-finance companies to pay legal bills for people who otherwise couldn't afford it, in exchange for some financial benefit. It's less common for a company to get involved in a zoning dispute, but the financial stake for Giant Eagle is the same, he said.

“This is America. ... If a neighbor has a real honest-to-goodness (complaint), where he gets his funding doesn't matter,” said Stuart Ebby, a Philadelphia attorney and lecturer at the University of Pennsylvania School of Law. “These things can take years and years and kill some very good projects.”

2015 opening expected

Gerald Cipriani, a partner in 1800 Washington Road Associates, said the project is moving ahead despite the challenges, and Whole Foods anticipates opening in 2015.

The developers sued Cain-Mannix and Witner, seeking unspecified damages on claims that their appeals were without merit. In the lawsuits, the developers said they met early on with Giant Eagle executives who tried to dissuade them from including Whole Foods and offered to invest if they dropped the grocer.

Ebby said such countersuits would require proving that the residents didn't care about the project and the funders drove the appeals.

Jim Hertel, managing partner at Barrington, Ill.-based retail analysis firm Willard Bishop, said retailers commonly watch real estate transactions and municipal planning boards for hints of what competitors might be doing, but he hasn't seen one paying for appeals to stop or slow another chain.

When fighting for customers, the advantage typically goes to the store that opens first and becomes part of shoppers' routine, Hertel said.

Strong anticipation

The Washington Road corridor is home to a Trader Joe's, Fresh Market, Target and smaller specialty stores The Uncommon Market and Srisai Indian Food and Groceries. Yet some shoppers say they're eagerly awaiting a Whole Foods.

“I've been ... wondering when it would open,” said Michele Farrell, 52, of Carrick, shopping at Trader Joe's. “I don't see anything wrong with healthy competition.”

“I never shop at the (Market District) Giant Eagle because it's too big; it takes too much time to slog through,” said Carla Greenfield, 60, of Mt. Lebanon.

Neither Trader Joe's, which opened in Bethel Park in 2011, or Fresh Market, which opened in Mt. Lebanon last July, faced legal challenges.

“The more (grocery stores) clustered together, the better it is for me. Anything that brings food people past my door,” said Janet Gralka, owner of The Uncommon Market. “If we were all by ourselves, it's a long way to come. People will always complain about traffic, but it doesn't stop them from shopping.”

Matthew Santoni is a Trib Total Media staff writer. Reach him at 412 380 5625 or msantoni@tribweb.com.

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