Another Side of Eminent Domain

[BDP]

I found this interesting and thought it would make good discussion:

Vote goes against Wal-Mart:
Council OKs using eminent domain to block retailer

Sort of the opposite extreme from us. Whereas we use public money to finance a big box store, they use their public resources to try and block one.

I can't say where I stand on this legally or ideologically, but I can say I am impressed the community's concerns for local development and local business. I also find the use of eminent domain to enforce community concerns, rather than override them, interesting.

[Midtowner]

It's definitely an interesting side. I think there's a strong public policy argument to be made for a local government to be able to make decisions as to what types of businesses are located within its premises.

There will almost certainly be a Wal-Mart located right outside the city limits which will deny the city tax revenues. This is essentially a political stunt by the local politicians standing up against 'big business.'

And as for using public money to finance a big box store, yes, we do that through TIF. As for the acquisition of the land used for that store through eminent domain, recent precedent would forbid that. see Board of County Commissioners of Muskogee County v. Lowery, 2006 OK 31.

http://www.oscn.net/applications/osc...?CiteID=445996

At any rate, that's all interesting for California, and it could happen in Oklahoma, but I'm not sure that it'd fly if the above precedent were applied. First, Counties are notoriously 'pro-business,' meaning that I would be VERY surprised to see any County in Oklahoma do anything to stop a Wal-Mart from moving in.
It's not exactly on-point, but applying the same rationale, we'd arrive at the conclusion that government might not be able to use Eminent Domain to stop a landowner from doing what they want on their land.

Also, the question of cost comes to mind. When the city uses ED to condemn land for Wal-Mart, the real landowner should expect to be paid VERY well for his land. Wal-Marts have been shelling out a premium for their land in many ED suits (there was a recent one in Enid where I believe it was $70,000+ per acre!).

[The Old Downtown Guy]

An interesting "power to the people" article. This is obviously not a typical US town. The citizens of the city of Hercules have really pulled together as a community of one mind to oppose out of scale big box development. It sounds like the city has addopted a redevelopment plan that has the strong backing of a majority of the residents and elected officials are proceeding to prosecute the vision of the good folks living there. I whole heartedly agree that they should be able to use any means at their disposal to control their destiny by imposing any restrictions they see fit on commercial development. It's their town. Not the sort of thing that's likely to happen in very many places.

I guess WalMart has been so successful at bullying their way into location after location and eleminating competition along the way, that they would open a store there no matter what the public sentiment seemed to be. Of course it's hard to guess what the outcome would be if they got their store open. Perhaps people would choose to still shop with the smaller local merchants and WalMart might fail there. That would be an even better outcome in some ways, but it would still screw up the city's development plan in the process.

A small neighborhood in Edmond organized to oppose a WalMart there a couple of years ago, but only got a few changes to the building design and a little extra landscaping, if memory serves. But, that may have been all they wanted.

IMO, most big box development runs contrary to good community planning. I'm not making an anti-business statement, I'm just saying that being able to go to one or two mega-corp outlets to do all your shopping doesn't necessarily improve the quality of ones life. I still favor the one to one human experience over smiley face low prices. I would rather go to Bill Kamps, Med Deli and the Farmers Market, pick up a few things at each place and enjoy a little conversation along with the shopping, rather than filling up my cart at WalMart or Albertsons.

[BDP]

This is essentially a political stunt by the local politicians standing up against 'big business.'

That's an interesting take. It reads more to me like it's leadership enforcing the will of the people who happen to be a big part of the business of that town. Only 4 people spoke in favor of Wal-Mart. That doesn't sound like a "stunt". It sounds like democracy.

First, Counties are notoriously 'pro-business,'...

Again, that's interesting. I guess favoring local business doesn't qualify as being "pro-business"? In my mind, Wal-Mart is essentially "anti-business" in that it intends to eliminate as many businesses in a given community as it can, and, eventually all the competition that comes with it.

And as for using public money to finance a big box store, yes, we do that through TIF.

And it would be nice to see us use TIF in a way that benefits local businesses rather than using it to compete directly against them.

As for the acquisition of the land used for that store through eminent domain, recent precedent would forbid that. see Board of County Commissioners of Muskogee County v. Lowery, 2006 OK 31.

While not factually consistent, I can see how the rule of law may apply in this case as well. I don't think it will fly either, but it seems a lot would have to do with what they intend to use the land for.

Again. legally I don't think this has much merit, but it's nice to see a community give a crap and be pro-business, that is pro local business. In the end, maybe Wal-Mart will simply respect what kind of community the people there want to have, instead of having Wal-Mart define it for them.

Obviously, most people in OKC want a Wal-Mart based community, so, yeah, I don't see it happening here, either. But I think it will be an interesting case to watch, and may prove to be a case where eminent domain is used to guide development instead of destroy local businesses and properties.

[Midtowner]

BDP, there are of course two sides to every coin. What you are vocalizing here seems to be in agreement with what I have said, but using different terminology. "Pro business," for example, for you takes a different meaning than it does for me. What you might call pro-business, I might call 'protectionist' or 'anti-competitive' or something along those lines.

I'm not a big fan of Wally World, but I do become a little uneasy when a community starts to decide which businesses it will allow, and which it will not. For example, it's pure conjecture on my part, but I have a feeling that this community would welcome Costco, or maybe even Target while turning Wal-Mart away. Is that a responsible (or even legal) use of the municipal powers?

On a smaller scale, it might decide to condemn the land Tom's Hardware was going to build on because Steve's Hardware had donated to the County Commissioner's campaign (of course citing some other bogus reasoning).

As we know, the power given to county government is often, if not almost always used irresponsibly, and almost always tends to favor those in greater positions of power. While we might agree with this particular use of municipal power because we hate Wal-Mart, I can think of plenty of other potential uses of this power where we would rightfully cry foul. You need to think a little beyond the immediate use and a little further down the road as to what type of precedent this would set.

[Oki_Man5]

According to the article, 300 residents showed up; I contacted the author, and he said about the population of Hercules: "I believe its about 24,000." 1.25% of the population may be all who opposed it.

[Oki_Man5]

OOOPPPPSSSS! Five people of the 300 spoke in favor of Wal-Mart; how many more Wal-Mart supporters were in the audience?

[Midtowner]

OOOPPPPSSSS! Five people of the 300 spoke in favor of Wal-Mart; how many more Wal-Mart supporters were in the audience?

A sample of people showing up to a city council meeting is a perfectly representative sample of the population in any community.

(on opposite day)

[Oki_Man5]

A sample of people showing up to a city council meeting is a perfectly representative sample of the population in any community.

(on opposite day)

I do not agree; the only time that most people would ever show up at a meeting is when it is their oxen who are being gored unless that you mean that the barely more than one percent of the population were the only ones in the city objecting to Wal-Mart which I would consider possible.

In this case though, I will give that if it were clear for many years back, and it were the populace who truly were active in giving the town its direction, it could be the case that most all the people were against Wal-Mart, but the likelihood that some politicos took over and pushed their own agenda on the people is more plausible.

Please do not give me that old rhetoric about voting them out if you do not agree with the direction; incumbents have such a stronghold on being re-elected that voting them out en masse is almost impossible. That is why Oklahomans voted in term limits?

[The Old Downtown Guy]

I think most of us posting on this thread are simply imparting our own values and preferences, myself included, and are not being as objective as the journalist who wrote the subject article. It's an interesting news story, but not something that is going to change any great number of minds or alter shopping preferences on a global scale.

Obviously, "anti-WalMart" is not a mainstream position in most of the US and certainly not in OKC for sure or they would not have become the largest corporation going. This small left coast community has seemingly expressed its collective will through a ligitimate political process and what I take from the news story is not much more than that. I do applaud their willingness to take a stand and am encouraged when powerful commercial self-interests fail to prevail in matters of development, zoning, land use etc. They are usually just carpet baggers pushing the corporate interest without regard to the effect on the places they do business.

IMO, and my experience, both Oki Man5 and Midtowner are correct about how many show up, why and what they represent. How all this translates to OKC is perhaps more important. I have never seen our Council Chamber packed for any reason and sadly, most people living in our city don't even know who their Councilperson is, let alone vote in the election.

[Midtowner]

DTG:

Whether this is a 'legitimate' political process (the use of eminent domain to pick and choose which businesses open in your community) is definitely not a settled matter. My guess is that this town will be hauled into court, and they will likely lose unless they can show some legitimate public use for the condemnation of this land. I guarantee you that Wal-Mart uses the Lowery case as a guiding precedent (it's not binding on the state of California though).

Like I said, the issue here is not whether or not a community can exclude Wal-Mart by eminent domain. It's much broader than that. The issue here is whether or not a community can use eminent domain as a tool to remain selective as to what businesses are located within its boundaries.

I would be extremely skeptical of this town's chances of ultimately prevailing here.

[Midtowner]

I do not agree; the only time that most people would ever show up at a meeting is when it is their oxen who are being gored unless that you mean that the barely more than one percent of the population were the only ones in the city objecting to Wal-Mart which I would consider possible.

In this case though, I will give that if it were clear for many years back, and it were the populace who truly were active in giving the town its direction, it could be the case that most all the people were against Wal-Mart, but the likelihood that some politicos took over and pushed their own agenda on the people is more plausible.

Please do not give me that old rhetoric about voting them out if you do not agree with the direction; incumbents have such a stronghold on being re-elected that voting them out en masse is almost impossible. That is why Oklahomans voted in term limits?

So you're disagreeing with me and saying that the approximate ratio in this town against Wal-Mart is 295:1?

If you agree with me as to the fact that it is a non-representative sample that showed up to this meeting (I'm a little dense, and I guess I don't follow the meaning of oxen being gored, but I'm very anti-violence and animal cruelty, so that makes me very sad), then how is it in any way related to the subject at hand that the council is pushing their own agenda?

I mean to say that your post is difficult to decipher. I get something about the fact that you distrust the municipal process, that you think only interested parties show up, etc. Its relation to the subject at hand though is something I'm a little unsure about.

[The Old Downtown Guy]

DTG:

Whether this is a 'legitimate' political process (the use of eminent domain to pick and choose which businesses open in your community) is definitely not a settled matter. My guess is that this town will be hauled into court, and they will likely lose unless they can show some legitimate public use for the condemnation of this land. I guarantee you that Wal-Mart uses the Lowery case as a guiding precedent (it's not binding on the state of California though).

Like I said, the issue here is not whether or not a community can exclude Wal-Mart by eminent domain. It's much broader than that. The issue here is whether or not a community can use eminent domain as a tool to remain selective as to what businesses are located within its boundaries.

I would be extremely skeptical of this town's chances of ultimately prevailing here.

The article doesn't present all of the facts, but my reading indicated that it was as much an issue about the size and design of the building(s) and the conflict about what WalMart was proposing vs the development plan guidelines adopted by the Herculese city council.

"The city contends Wal-Mart's plan to build a discount store does not fit with its plans to develop the waterfront into a pedestrian-oriented village with high-end shops and homes."


All of the anti-WalMart comments and emotional venting from a lot of the 300 or so in the audience may just be a display of the kind of negative feelings from more and more people as WalMart and other big-box operators try to shoe horn their mamouth buildigs into more urban environments, now that they are running short on suburbs to exploit.

I think there is a good argument for the Herculese development plan which WalMart's proposal runs afoul of. I don't see it as excluding a particular retailer. It's about building types, scale and proportion. Obviously, they couldn't say no to WalMart and yes to Neimans occupying the same square footage. At least that is how I see it.

"But critics countered that Wal-Mart's latest plan was still more than 50 percent larger than a store plan approved for the site before the retail giant bought the property."

"The city was the first in the state to adopt a redevelopment code that prescribes the design of streets, building dimensions and some architectural requirements, such as front porches. A key part of the plan called for a waterfront village with high-density housing and shops, a shoreline park, a train station, bus service and even a ferry stop."

I do however, personally view WalMart as a plague on mankind and find it alarming that they would threaten the community with financial ruin for opposing their plans to open a store there, if indeed the comments were accurately reported.

"Some residents were infuriated that Wal-Mart had warned that if the City Council voted for eminent domain, the move would cost the city millions."

[Midtowner]

And I think Wal-Mart will win.

I think that the city could go about this differently though. Eminent domain wouldn't have been my choice.

As for the use of eminent domain, I'm sure the acquisition itself has already cost the city millions

Politicians don't seem to care as long as they spend other peoples' money.

[Patrick]

Why was the use of eminent domain necessary? As I've mentioned before, could the city simply not approve a building permit for Wal-Mart?

[Midtowner]

Patrick, I'm not sure, but it seems to me that the city was trying to do something in a contraversial fashion. Maybe they were trying to use the taxpayers' money to show their well-developed sense of irony -- using eminent domain to keep a Wal-Mart out.

It seems there would be a lot of cheaper ways to do this such as placing restrictions on the size of buildings, restricting the size of parking lots, etc.

As it stands, I'm not sure that the city will be able to get away with this use of eminent domain, and Wal-Mart will probably make good on forcing the city to spend millions to attempt to enforce its decision.

[Survey]

Wal-Mart is a private company. If Wal-Mart decides to buy property in an area, it should be their property to develop anyway they see fit. I'm tired of cities thinking they can control what people do with THEIR property.

[Midtowner]

Wal-Mart is a private company. If Wal-Mart decides to buy property in an area, it should be their property to develop anyway they see fit. I'm tired of cities thinking they can control what people do with THEIR property.

I'm tired of building codes and zoning ordinances. If the guy who owns a corner lot in my (hypothetical) gated community wants to construct a strip club, by God, it's his property!

Let's stop enforcing covenants, equitable servitudes, etc. Sound ordinances, etc. should also be ignored because the landowner can do what they want on their own property.

Survey, you are becoming the king of drive-bys on this board. Why don't you make an argument or two in favor of your unfounded assertions, and then we can talk. Otherwise, please keep your blathering to yourself in the future

[The Old Downtown Guy]

Why was the use of eminent domain necessary? As I've mentioned before, could the city simply not approve a building permit for Wal-Mart?

From a re-reading of the article, it appeared that the 17 acres of land had been assembled and was available for purchase on the open market rather than being held by a public entity such an Urban Renewal Authority, but there was a development plan addopted by the city of Hercules which governed what was built on the parcel. WalMart purchased the 17 acres and proposed a typical mamouth WalMart, got rejected, redesigned the project and got rejected again because it was still way bigger than the city's development plan called for. So, rather than continue to argue with WalMart, the city simply enforced their offer to purchase the property back from WalMart so they could offer it for sale in a more controlled fashion to a developer that would agree to build something more in keeping with their development plan.

Mr. Survey, your comment that a property owner should be able to do what ever they want with their land, is absurd and without any basis or merit. The closest thing to your suggestion is Houston Texas and its lack of zoning. About the only restriction is that whatever is built must appropriately fit with what is nearby. Most people agree that it is a difficult condition to work within at best.

[Survey]

I'm tired of building codes and zoning ordinances. If the guy who owns a corner lot in my (hypothetical) gated community wants to construct a strip club, by God, it's his property!

I agree.

[Martin]

what if that guy's strip club brings down everybody else's property values? -M

[Survey]

I agree we should have zoning ordinaces. After that, though, a property owner should be able to build whatever they want.

[Midtowner]

I agree.

My response was dripping with sarcasm. Doesn't seem as though you were quite able to pick up on it. I imagined that those examples were so extreme that even the dullest of dullards would be able to pick up on the sarcasm... but alas, even I am wrong from time to time.

But you agree, huh? Well, you disagree with hundreds of years worth of property law, so I guess you should consider moving to another country

[Survey]

My response was dripping with sarcasm. Doesn't seem as though you were quite able to pick up on it. I imagined that those examples were so extreme that even the dullest of dullards would be able to pick up on the sarcasm... but alas, even I am wrong from time to time.

But you agree, huh? Well, you disagree with hundreds of years worth of property law, so I guess you should consider moving to another country

I knew you were being sarcastic. I was picking out of your post what I wanted to hear.

Laws are made to be changed.

[Midtowner]

Uh.. okay.. you picked out of my post something which would take me out of context, attributed that meaning to me, then agreed with it? Yeah, sure -- you have me totally convinced (I just want to note that the last phrase following the "--" was sarcasm for the sarcasm-recognition-challenged).

As for laws being changed, usually, we change the laws when the change would be beneficial to society as a whole. Please make the case as to how eliminating all land-use restrictions could somehow benefit society as a whole. Or are you not capable of a post that is more than 2 lines long?