Giant Eagle, Whole Foods case goes to Court of Common Pleas

Published Jun 3, 2014 at 9:55 am (Updated Jun 3, 2014 at 9:55 am)

Developers of the former Consol Energy Site along Route 19 in Upper St. Clair, 1800 Washington Road Associates, LP (WRA), have filed a lawsuit against Moira Cain-Mannix citing she worked for Giant Eagle to keep a proposed Whole Foods supermarket out of the township. Cain Mannix, a resident of Upper St. Clair, lives near the proposed development and is a lawyer with the law firm Marcus & Shapira, which has represented Giant Eagle many times in the past.

WRA has been planning to turn the site into an area called Siena St. Clair with a Whole Foods supermarket and a separate retail building that would include restaurants, professional offices and limited retail. WRA also have plans for a separate housing development with around 40 multi-family homes.

Gerard Cipriani, a principal of WRA, stated that the suit was “filed to allow a jury to assess whether Giant Eagle’s attorney was genuine in her multi-year delay of a project involving her most important client’s chief local competitor.”

According to court documents filed May 9 in the Allegheny County Court of Common Pleas, Cain-Mannix “has represented Giant Eagle in the United States District Court for the Eastern District of Pennsylvania on at least eight separate occasions since 2006, three occurring in 2013.”

In addition, Marcus & Shapira represent Giant Eagle and the founding partner of the law firm, Dan Shapira, holds, directly or indirectly, an ownership position in Giant Eagle, the document states.

The document goes on to state that when Whole Foods expressed interest in leasing a space at the Washington Road property, “Giant Eagle’s Senior Vice President Gene Tommasi commented to a WRA principal that ‘We (Giant Eagle) cannot allow that to happen. We need to talk.’”

It adds that Cain-Mannix’s “deceptive and unlawful efforts to stall, delay, obstruct and otherwise prevent the orderly process of the Plaintiff’s development benefitting the citizens of Upper St. Clair specifically and the Pittsburgh region generally,” according to court documents.

The suit alleges that Cain-Mannix acting alone or in concert with other entities, “participated in a plan of obstruction, seeking in any way possible, to delay or destroy the advancement of the Washington Road Development.”

Cipriani stated that on May 28, “After three years of interference, Cain-Mannix was forced to admit under oath before Judge James that Giant Eagle has in fact paid all of her expenses associated with her attempts to stop or delay the Siena project.” Cipriani said she had previously refused to answer that question.

“She also admitted that she was fully aware of all five municipal meetings and hearings concerning the rezoning of the property and chose not to attend any meeting,” Cipriani said. “As such, we suspect she will lose any claim that her constitutional rights concerning adequate notice were violated and her claims will be dismissed by our courts, allowing the project to finally move forward.”

Rob Borella, senior director of corporate communications for Giant Eagle provided this statement: “Giant Eagle, Inc. has been mentioned in two lawsuits filed against citizens by 1800 Washington Road Associates involving the proposed development known as Siena at St. Clair. As a long-standing member of Pittsburgh’s South Hills community, Giant Eagle has viewed with concern the increasing traffic congestion in the Route 19/Fort Couch Road area and the adverse impact it has on our customers and team members seeking to shop and work in the area. Adding to these concerns were objections from citizens living in the immediate area of the proposed development. Therefore, it was surprising that zoning ordinance changes for the Siena development were approved to benefit 1800 Washington Road Associates. In July of 2013, the Pennsylvania Commonwealth Court found that the zoning changes were not properly enacted and the Pennsylvania Supreme Court later let stand the Commonwealth Court’s decision.”

The statement goes on to say: “The proposed mixed use facility offered by the developer is certain to cause traffic conditions in this area to further deteriorate. Giant Eagle does not believe the proposed development is in the best interest of the community and that any zoning changes should be enacted in full compliance with the law. Accordingly, the company offers legal and technical support to residents who choose to exercise their constitutional rights in opposing such developments.”

Attorney Tom Ayoob, who has been representing Cain-Mannix in the land use dispute, said “It’s not Whole Foods, it’s the intensity of the development of the site,” that she is concerned about. He added that Cain-Mannix lives near the proposed development and is worried about traffic and the impact the development could have on residents, such as lighting and noise.

“It’s not a specific user, it’s the impact of the development,” Ayoob said. He said that developing specific sanctions for one site, in this case the former Consol site, constitutes “spot zoning.” He added, “This isn’t a township-wide change.”

In 2011, Upper St. Clair amended its zoning ordinance that allows for the development of retail and residential space as a conditional use at the site of the former Consol Energy offices on Washington Road.

“This is not just limited to Whole Foods. This is a strip mall, a retail and multi-high-rise development,” Ayoob said. “This has been going on a couple of years and she’s been prevailing,” Ayoob said of Cain-Mannix. He said a civil court already ruled in her favor. “Her objection to this ordinance is valid,” he said.

Ayoob said the case was argued in front of Judge Joseph James in common pleas court and they are expected to file briefs in the case June 19 and are waiting for the judge’s ruling.

Kevin Allen, Cain-Mannix’s attorney in the civil matter could not be reached for comment.

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