The owners of a Mount Airy shopping center want a Carroll County judge to order a current tenant, Rite Aid of Maryland Inc., to accept a new Wal-Mart there.
Apparently, the Mount Airy Wal-Mart isn't the sure thing town planners and opponents thought it was.
A provision in the drugstore's January 1972 lease -- when the Rite Aid was a Drug Fair -- states that the shopping center owners cannot lease space to or permit a competing business within a two-mile radius, according to the lawsuit filed this week.
In November, the town planning commission unanimously approved plans for an 85,000-square-foot Wal-Mart on 14 acres behind Mount Airy Shopping Center, near Route 27 and Ridgeville Boulevard, noting that the land was zoned for commercial use. The land is owned by the shopping center.
"They have an approved site plan," said Monika Jenkins, the town planner who has been involved with the project for about eight months.
The new Wal-Mart would be behind the shopping center, which would be renovated and upgraded, and the state and county have approved road improvements, she said.
But until the rights of Rite Aid are determined by a court, "Wal-Mart has refused to execute a contract of sale with the plaintiffs," according to the lawsuit by Mark Taff of Bethesda and his sister, Carol Eisenberg of Florida, the Taff Family Trust, and Mount Airy Shopping Center LLC.
The dispute centers on a restrictive covenant that precludes " any other drug store, variety store or photo-finishing business, or any store whose primary business is the sale of patent medicines, health and beauty aids, cosmetics, lawn and garden or outdoor living merchandise "
While Wal-Mart offers some of these items, the owners contend, " the restrictive covenant of the lease agreement does not act to restrict the type of business that Wal-Mart may conduct at the Wal-Mart location." Their lawsuit asks the court to "find and declare that Wal-Mart is not" any of these and is not prohibited by the lease.
Wal-Mart isn't a party in the lawsuit -- only Rite Aid and the shopping center owners. The owners said in the lawsuit that they had notified Rite Aid of their intention to sell the adjoining land and asked for an agreement that the lease did not restrict the type of business Wal-Mart could conduct there.
Rite Aid sharply disagreed, according to a July 7 letter from I. Lawrence Gelman, the corporation's vice president for real estate law in Camp Hill, Pa., attached as an exhibit to the lawsuit. The letter said in part:
