California Town uses eminent domain to reject Wal-Mart

[Bearcat729]

Interesting way to try and fight Wal-Mart but I doubt it will work

http://www.abcnews.go.com/WNT/story?id=2001070


Town Snubs Wal-Mart, Citing Supreme Court
Hercules, Calif. Rejects Retailer Using Eminent Domain to Reclaim Land

By BRIAN ROONEY

May 24, 2006 — A developing city east of San Francisco is the first place in the country to use the Supreme Court's eminent domain ruling to keep Wal-Mart out of its area.

The retail giant has 3,900 stores across the country — nearly seven new stores open every week — but there won't be one coming to Hercules, Calif., at this time.

Tuesday night, during a sometimes raucous meeting, the city council voted unanimously to take Wal-Mart's land by power of eminent domain. It's a power the Supreme Court affirmed for municipalities in a controversial New London, Conn., ruling, in which the city wanted to take private property for a commercial development.

The Hercules, Calif., land in question consists of a 17-acre stretch next to new homes, offering a view of the San Pablo Bay. The city did not want Wal-Mart to be the centerpiece of its planned waterfront.

Instead, city planners have looked for a more historic-looking development, with buildings that include apartments on the second floor and shops and restaurants on the ground floor.

Precedent for Other Towns?

Towns from Virginia to California have fought Wal-Mart in the past, claiming the chain would kill local businesses. But many more have welcomed the chain for its jobs and tax revenue, even using eminent domain to bring the chain in.

No one has ever used eminent domain to stop Wal-Mart, and in an ironic reversal of roles last night, the company's spokesman cried foul at the town meeting where it reclaimed the land.

"It's not right to take private property for political purposes," said Wal-Mart spokesman Kevin Loscotoff.

Still, some legal analysts said this strategy could be used elsewhere.

"I think it's an important precedent for towns across the country that are trying to maintain some control over what their actual physical makeup is going to be," said David Barron, a professor at Harvard Law School.

Wal-Mart has never gone away quietly, so this could be the start of a battle for the California town.

[Rizon]

This won't hold for long. Hercules is redneck, and rednecks NEED Wal-Mart.

[oliegirl]

"It's not right to take private property for political purposes," said Wal-Mart spokesman Kevin Loscotoff.

I'm not a Wal Mart hater and in most cases disagree with the "Wal Mart is bad" idea, but even I see the hypocrisy in this statement...Wal Mart as a corporation wouldn't bat an eye before using ED for their benefit.

[Warhammer]

My .02 is that this is a bad precedent. The city can control what goes there based upon zoning laws. If the developer wants to sell that land to Wal-Mart and it is zoned commercially why should they be able to stop them?

I wonder if Wal-Mart could sue based upon discrimination?

[IwasHere]

I wonder how many people sitting on the town counsel own a local small business?

[Mustang]

Couldn't they just said, no.. you can't build here? I'd assume that the city would still have permits and such that they would need to issue where they could tie this up. :confused:

[flere-imsaho]

To be honest, I think this is within the spirit of the law, especially given:

The Hercules, Calif., land in question consists of a 17-acre stretch next to new homes, offering a view of the San Pablo Bay. The city did not want Wal-Mart to be the centerpiece of its planned waterfront.

Instead, city planners have looked for a more historic-looking development, with buildings that include apartments on the second floor and shops and restaurants on the ground floor.

[Warhammer]

My thing is that ED should not be used for this purpose. Would it be ok is it was a Nordstrom's there instead of a Wal-Mart?

[ISiddiqui]

I'm not a Wal Mart hater and in most cases disagree with the "Wal Mart is bad" idea, but even I see the hypocrisy in this statement...Wal Mart as a corporation wouldn't bat an eye before using ED for their benefit.

The ironic thing is that they haven't batted an eye in the past while using eminent domain! The tactics they have used before now get turned on them... which makes the protestations all the more funny.

[ISiddiqui]

I wonder if Wal-Mart could sue based upon discrimination?

Based on what? Discrimination against large retailers in favor of small ones? That's not against the law.

[Warhammer]

Based on what? Discrimination against large retailers in favor of small ones? That's not against the law.

However, it could produce a precedent that could be used against minority owned business to keep them out of an area.

I just feel this is a very bad precedent to set, if the area was zoned residential, fine I have no problem with this, but obviously it wasn't.

[flere-imsaho]

My .02 is that this is a bad precedent. The city can control what goes there based upon zoning laws. If the developer wants to sell that land to Wal-Mart and it is zoned commercially why should they be able to stop them?

My thing is that ED should not be used for this purpose. Would it be ok is it was a Nordstrom's there instead of a Wal-Mart?

The problem is that both ED and zoning laws are, basically, blunt instruments. It's easy to say that this can be controlled with zoning (and yes, it can), but in practice it's pretty difficult to do so. You're requiring the town to have anticipated a lot of eventualities when they draw up zoning, and in reality they will have had to also spend a lot on a good strategic plan for overall town development so that they can fall back upon this in court when challenged.

In reality, what happens with a lot of municipalities is that they get some revitalization going on, some new homes get developed/re-developed, and then zone some commercial space near the new residential space, hoping some nice independent/boutique stores go in there. Then the owner of that land sells it to someone who then sells it to WalMart. The town says "Hey, wait a minute, we were hoping for boutique stores there, something that fits the character of what we're trying to build here, not a 20,000 sq. ft. department store!" and WalMart says "Hey, tough." and builds it anyway because they know that a) they'll be done building before the town can re-do their zoning and b) they can overlawyer most small municipalities anyway.

I wish there was a cleaner legal/legislative option here than ED & zoning, but on the other hand, what a lot of this comes down to is WalMart being a better neighbor. If WalMart would come to these municipalities before purchase and say "hey, we'd like to build a store here, what do you think?", the whole thing could be avoided.

[ISiddiqui]

However, it could produce a precedent that could be used against minority owned business to keep them out of an area.

I just feel this is a very bad precedent to set, if the area was zoned residential, fine I have no problem with this, but obviously it wasn't.

And if it is used against minorities, then you have a racial discrimination case. Otherwise, nothing there.

And bad precedent? The precedent has already been set and has been in force for at least 50 years. This town is just using it in a different way, to keep out a company like Walmart instead of letting 'em in.

[John Galt]

However, it could produce a precedent that could be used against minority owned business to keep them out of an area.

This really makes no sense. Following this line of thinking leads nowhere. Walmart cannot sue "for discrimination" because no such cause of action exists in American law.

[IwasHere]

This really makes no sense. Following this line of thinking leads nowhere. Walmart cannot sue "for discrimination" because no such cause of action exists in American law.
I think they may have a case. They just need to prove that the town board is doing this because they do not approve of the lower income minorities that Wall~Mart tends to attract.

[ISiddiqui]

I think they may have a case. They just need to prove that the town board is doing this because they do not approve of the lower income minorities that Wall~Mart tends to attract.

That's quite a streach... close to snapping that line of argument is.

[John Galt]

I think they may have a case. They just need to prove that the town board is doing this because they do not approve of the lower income minorities that Wall~Mart tends to attract.

That is still not a cause of action. And it doesn't make a lot of sense. City councils regularly make decisions to prefer certain businesses over another and those decisions inevitably favor one customer base over another.

If, hypothetically (and this is a big hypothetical), there was a cause of action for this sort of claim, then that cause of action would almost certainly reside with the minority citizens of the community - it would not be Wal-Mart's.

Either way, this is all legal fiction until someone cites a statute or at least a relevant precedent.

[clintl]

I know, but try to explain this arguement.

And, probably a WHITER client base.

Very, very doubtful that that's the case. Race typically is not much of a factor in local politics in Northern California. Resistance to big box retail (and especially Wal-Mart Supercenters in particular) is a big factor, however, in many communities.

[oliegirl]

I know, but try to explain this arguement.

And, probably a WHITER client base.


I disagree with that assumption. Many communities are trying to limit how "commercial" the area looks simply because it looks a lot nicer and helps raise/maintian property values. They design the structures to "blend" in with the community atmosphere and have also limited the height of signs and "standardize" them so they all look pretty much the same. It's worked well in a number of places, Kingwood, TX is the one I think of - my aunt and uncle live there and when you drive past a Wal Mart, you hardly know because of the landscaping and architecture. It's a nice change from the overly commercial look most places have.

[Warhammer]

This really makes no sense. Following this line of thinking leads nowhere. Walmart cannot sue "for discrimination" because no such cause of action exists in American law.

Not a lawyer, I figured that corporations could sue for discrimination since they are able to do so on bid projects (and yes, I have seen companies do so, based on minority ownership status).

That is what I was getting at. Let's say instead of Wal-Mart, Ghetto Shoes tries to open a store there, which is owned by a black woman. What happens if the town invokes ED to keep her out? The precedent set by this case would could help ensure that happening.

[ISiddiqui]

Not a lawyer, I figured that corporations could sue for discrimination since they are able to do so on bid projects (and yes, I have seen companies do so, based on minority ownership status).

That is what I was getting at. Let's say instead of Wal-Mart, Ghetto Shoes tries to open a store there, which is owned by a black woman. What happens if the town invokes ED to keep her out? The precedent set by this case would could help ensure that happening.

What is all this 'precedent' by this case? I think you are trying (way too hard) to cordon this decision as 'precedent' for anything, thereby making it look work. The council here really didn't do much new except used eminent domain for smaller business rather than big business. Towns have invoked eminent domain to seize property to turn it into, say, a park from big businesses before.

[Solecismic]

When I was a journalist, I covered the battle between Saugatuck, Michigan and McDonalds.

Saugatuck had many rules about commercial building design, and McDonalds met every one of them. But local businesses freaked out and since they controlled the planning board, it got ugly quickly.

They managed to delay the project long enough on a parking space technicality for the land purchase option to expire. Then they worked on the land owner and made sure he didn't extend the option. McDonalds gave up.

This use of eminent domain is a little weird. Inventive, no doubt. I guess they're aware that Wal-Mart would have no problem creating a site plan that would meet all planning requirements.

Using eminent domain for private businesses seems like an abuse to me. What happened in Connecticut was wrong. It should be reserved for public works, like highways and power lines, and only then when there are no alternatives.

I live in an area that's served by one of those modern Wal-Mart supercenters. Yet local businesses still thrive. A big grocery store just opened about two miles down the road. And instead of being just another stupid chain grocery (which it is), it's bringing in a lot of high-quality products that Wal-Mart won't stock. So we go there.

If a town wants to shut its eyes and drive away large chain businesses, all they're doing is preventing competition.

Now, at the state level, people could always pass laws, like France has, which eliminate the use of part-time labor and prevent people from being fired for cause. That would effectively stop Wal-Mart's growth. But do we really want 25% youth unemployment and higher prices on everything? That's a huge price to pay for rejecting capitalism on aesthetic grounds.

[Warhammer]

What is all this 'precedent' by this case? I think you are trying (way too hard) to cordon this decision as 'precedent' for anything, thereby making it look work. The council here really didn't do much new except used eminent domain for smaller business rather than big business. Towns have invoked eminent domain to seize property to turn it into, say, a park from big businesses before.

Using ED in the past has been for taking something from a private entity (business, person, etc.) and using it for public use, as you illustrate land for a park. The distinction here is that a town is taking land away from a company and giving it to another company (effectively). This is slightly (but not much) different from the New London, CT, case. The difference is that it is taking land away from a company to give it to another. Since this is Wal-Mart, everyone is A-OK with it. Fine. But down here in the south, I can see it used by communities to keep out minority businesses, under the same pretense used here.

I feel that everyone should be playing by the same rules. Heck, that's why I think the New London case was wrong, because we opened Pandora's Box. When you take land for something other than Pandora's Box, all you are doing is taking it from one party and giving it to another and that is wrong.

[flere-imsaho]

This use of eminent domain is a little weird. Inventive, no doubt. I guess they're aware that Wal-Mart would have no problem creating a site plan that would meet all planning requirements.

And that's exactly the problem. A community can't say, through zoning laws alone, "basically, we don't want a big-box Wal-Mart store right here".

If a town wants to shut its eyes and drive away large chain businesses, all they're doing is preventing competition.

That's very debatable. Especially when the business plans of such chains often explicitly involve techniques to drive competing businesses (be they independent or other chains) out of business.

Again, if a community wants to say "Look, we just don't want big-box chains here, or at least not in this part we're trying to re-vitalize", then they should be able to do so.

Now, at the state level, people could always pass laws, like France has, which eliminate the use of part-time labor and prevent people from being fired for cause. That would effectively stop Wal-Mart's growth. But do we really want 25% youth unemployment and higher prices on everything? That's a huge price to pay for rejecting capitalism on aesthetic grounds.

That's a real collection of overstatements there. Firstly, this is hardly just "rejecting capitalism on aesthetic grounds". Big-box stores, including Wal-Mart, have an immense impact on their locale, including not least the noise and traffic levels. In many cases there are residential property values at stake here. Is that not capitalism too?

Secondly, it's quite a leap to equate these kinds of community decisions to a wholesale change in the labor market to make it more "like France".

There are plenty of examples of communities which re-vitalize themselves without the help of big-box stores, and there are plenty of examples where big-box chains work with communities to fit into their overall strategic plan, and do so effectively. There's a happy medium here which doesn't have to involve bullying or lawsuits.

[ISiddiqui]

Using ED in the past has been for taking something from a private entity (business, person, etc.) and using it for public use, as you illustrate land for a park.

No. Eminent domain has been used for around 50 years now for taking land from a private entity and giving it to another private entity because it was deemed more in the public's benefit. If you need proof of this, look at Chavez Ravine. Though usually they claim 'blight' at times in the past.

But down here in the south, I can see it used by communities to keep out minority businesses, under the same pretense used here.

Then you can sue based on racial discrimination.

[oliegirl]

Using ED in the past has been for taking something from a private entity (business, person, etc.) and using it for public use, as you illustrate land for a park. The distinction here is that a town is taking land away from a company and giving it to another company (effectively). This is slightly (but not much) different from the New London, CT, case. The difference is that it is taking land away from a company to give it to another. Since this is Wal-Mart, everyone is A-OK with it. Fine. But down here in the south, I can see it used by communities to keep out minority businesses, under the same pretense used here.

I feel that everyone should be playing by the same rules. Heck, that's why I think the New London case was wrong, because we opened Pandora's Box. When you take land for something other than Pandora's Box, all you are doing is taking it from one party and giving it to another and that is wrong.


I think you are reading way too much into this, and going down a path that is not likely to happen. I live in the South, and have for over 20 years...sure, some community could try to use ED to keep a minority owned business, but I don't think that it would go anywhere b/c asking a company, large or small, to meet community set guidelines using the ED argument, and trying to use ED to keep out minority businesses are 2 very different things. Using it against a minority would likely be very obvious, meaning there would be no other reasonable explanation for why you don't want that business to open.

[larrymcg421]

If you use ED to keep out minority businesses, you are not violating the 5th Amendment, but you are violating the 14th Amendment.

[John Galt]

If you use ED to keep out minority businesses, you are not violating the 5th Amendment, but you are violating the 14th Amendment.

I will soften what I said earlier. Walmart could bring a suit against the city under the 14th Amendment arguing that they did not receive Equal Protection under the Law. This is a "cause of action." However, it is a 100% guaranteed loser. The court will apply rational basis analysis, and as long as the city has any legal (meaning not based on race, gender, etc.) reason to have used ED in this case (and the reason can be an absolutely horrible non-sensical one), then Walmart loses. And for that reason, Walmart will NEVER bring such a suit.

[larrymcg421]

I will soften what I said earlier. Walmart could bring a suit against the city under the 14th Amendment arguing that they did not receive Equal Protection under the Law. This is a "cause of action." However, it is a 100% guaranteed loser. The court will apply rational basis analysis, and as long as the city has any legal (meaning not based on race, gender, etc.) reason to have used ED in this case (and the reason can be an absolutely horrible non-sensical one), then Walmart loses. And for that reason, Walmart will NEVER bring such a suit.

That was in reference to an earlier post about "minority owned businesses". I don't think Walmart has a 14th Amendment claim. I was just stating what the response would/should be if ED was used in such a manner in the south.

[Solecismic]

That's very debatable. Especially when the business plans of such chains often explicitly involve techniques to drive competing businesses (be they independent or other chains) out of business.

Again, if a community wants to say "Look, we just don't want big-box chains here, or at least not in this part we're trying to re-vitalize", then they should be able to do so.

The business world has changed in the last 50 years. Just as it has continually during America's development. The tiny corner grocery was replaced by a market, which was replaced by a supermarket, which is competing against Wal-Mart's version of a supermarket.

If you're small, and you want to compete on your own, you have two choices.

1) You can whine to your local government and hope they like you enough to drive out your competition.

2) You can find ways to redefine the competition by specializing.

I've had to do that. I do not have the resources to put out a football game that can go head-to-head with Madden. So I have to redefine the competition. I have to accept that I can't sell a mass-market game with pretty animations.

I picked one area where I thought the big games were lacking (roster management) and focused there. I hit Madden's weakness (realistic play results engine) because in order to have an action game, you can't enforce realistic play results on the customer.

I'll never get rich doing this, but I have defined a niche, more or less. I could whine about how much more noble I am than a faceless corporation like Electronic Arts, but what does that get me? It's not like someone's going to ban the sale of Madden in some area for my benefit.


That's a real collection of overstatements there. Firstly, this is hardly just "rejecting capitalism on aesthetic grounds". Big-box stores, including Wal-Mart, have an immense impact on their locale, including not least the noise and traffic levels. In many cases there are residential property values at stake here. Is that not capitalism too?

That's why we have zoning.

Secondly, it's quite a leap to equate these kinds of community decisions to a wholesale change in the labor market to make it more "like France"

But that's what France has done. Rigged the labor market to keep costs high. And in doing so, effectively prevented the Wal-Mart approach. In order to open a business in France, you need to trust your local labor force. Larger businesses can not cede that type of control on the local level. It's just about impossible for anybody to open a new business in France these days.

There are plenty of examples of communities which re-vitalize themselves without the help of big-box stores, and there are plenty of examples where big-box chains work with communities to fit into their overall strategic plan, and do so effectively. There's a happy medium here which doesn't have to involve bullying or lawsuits.

But isn't bullying exactly what Hercules is doing? They have the power here.

A good city plan is an effective tool. You force design requirements on stores. You keep them in commercial zones. If you have a good plan, you don't need to care whether it's a big box or it isn't.

My problem with this city has nothing to do with revitalization. It's simply a bunch of local businessmen who don't want competition and are taking advantage of the national hatred of Wal-Mart to justify their small mindedness. That's the exact opposite of revitalization.

[Galaxy]

Has their been any movement on changing the law of ED since the New London case?

[Solecismic]

Has their been any movement on changing the law of ED since the New London case?

Massive amounts. States can not pass laws quickly enough.

[John Galt]

That was in reference to an earlier post about "minority owned businesses". I don't think Walmart has a 14th Amendment claim. I was just stating what the response would/should be if ED was used in such a manner in the south.

I quoted you because it made me realize that I misspoke earlier. The result is the same, but I wanted to be accurate. I realized your statement was really about a different issue. It just made sense to me to quote you because you mentioned the 14th Amendment. I agree Walmart does not have anything resembling a good 14th Amendment claim, but they could probably survive a motion to dismiss (but would surely lose on summary judgment).

[JonInMiddleGA]

And that's exactly the problem. A community can't say, through zoning laws alone, "basically, we don't want a big-box Wal-Mart store right here".

But they could have limited the "big-box" aspect by applying size restrictions to the land in question, basically creating a "boutique commercial" classification. A retail version of "light industrial" vs "heavy industrial" if you will. As (I think) you were pointing out, they just can't say "we don't want Wal-Mart but Home Depot/Nordstrom/Target is okay".

They design the structures to "blend" in with the community atmosphere and have also limited the height of signs and "standardize" them so they all look pretty much the same. It's worked well in a number of places, Kingwood, TX is the one I think of - my aunt and uncle live there and when you drive past a Wal Mart, you hardly know because of the landscaping and architecture.

Same situation for the Wal-Mart that's closest to me right now, just up the road in Madison, GA. That's a town that's not only one of the historic preservation highlights in Georgia, it's also one of the toughest places to build anything new of any kind. I think there have been nuclear plants built that jumped through fewer hoops than local zoning put a Super W-M through there (one of our closest friends is the person in charge of the restrictions so I'm pretty familiar with the requirements they had to meet). When all was said & done, Wal-Mart met every guideline & has a new location that's nearly invisible to anyone who isn't actively shopping there

(One of the many restrictions on the site design was a requirement that they essentially build in a lower elevation than the surrounding road frontage. They basically built the store in a hole & then built up the unimproved outparcel with the ensuing fill dirt. The result was a Supercenter that is actually a little hard to find if you don't know where it is).

[Daimyo]

Instead, city planners have looked for a more historic-looking development, with buildings that include apartments on the second floor and shops and restaurants on the ground floor.

There is a Best Buy in the Lincoln Park area of Chicago that actually fits this description. Its kind of strange and a bit small for a Best Buy, but it really is a win-win. I wonder if Wal-Mart would have bulked at something like that?

[flere-imsaho]

The business world has changed in the last 50 years. Just as it has continually during America's development. The tiny corner grocery was replaced by a market, which was replaced by a supermarket, which is competing against Wal-Mart's version of a supermarket.

If you're small, and you want to compete on your own, you have two choices.

1) You can whine to your local government and hope they like you enough to drive out your competition.

2) You can find ways to redefine the competition by specializing.

You're skewing my argument. I don't disagree with what you say above. This is not necessarily about "saving the little guy". This is about making it so that if a community doesn't want a big-box in its "historic downtown" or "mixed-use waterfront", they don't have to have one there. This is about communities not having to accept development that's ridiculously out of character just because the developer (or its client) has better lawyers.

That's why we have zoning.

Zoning is an imperfect and blunt instrument. There are lawyers who do nothing but specialize in getting around zoning regulations. Is it too much to ask businesses to attempt to adhere to the spirit of local zoning regulations, even when they can legally circumvent the spirit while adhering to the letter?

But that's what France has done. Rigged the labor market to keep costs high. And in doing so, effectively prevented the Wal-Mart approach. In order to open a business in France, you need to trust your local labor force. Larger businesses can not cede that type of control on the local level. It's just about impossible for anybody to open a new business in France these days.

France has "rigged its labor market" in a somewhat poorly-thought-out attempt to create a socialist safety-net for its citizens, not specifically to keep out big-box stores. The roots of the current economic system in France lie 50 years in the past, anyway, far before big-box stores existed, so I'm not sure how you can make that claim.

If you're saying that one of the consequences of this is the exclusion of large and/or chain businesses, then sure, I'll agree with that, but I very much doubt you can prove that particular effect was a prime mover in the creation of France's current market setup.

But isn't bullying exactly what Hercules is doing? They have the power here.

No. I'm going to assume that like many small municipalities before them, Hercules tried to convince Wal-Mart not to build long before they went to the ED option. They may have even attempted to convince the original seller not to sell to Wal-Mart in the first place.

I'm going to assume, as they have done in the past, continue to do, and, in fact, is their modus operandi, that Wal-Mart decided to not play ball, confident that they could out-lawyer this small municipality as they have so many others.

That's bullying.

A good city plan is an effective tool. You force design requirements on stores. You keep them in commercial zones. If you have a good plan, you don't need to care whether it's a big box or it isn't.

Sorry, but this just isn't true. Most municipalities, especially small ones, have to choose between spending a lot of money to make zoning regulations so restrictive that they kill off business development anyway, or just rolling over against big corporations who can lawyer them right out of court. Besides, you're assuming that the average small community has the resources and foresight to put together a complex set of zoning regulations just in off chance someone like Wal-Mart is going to decide to drop a big-box there some day.

And yes, I do speak from experience, from working in Commercial Real Estate.

My problem with this city has nothing to do with revitalization. It's simply a bunch of local businessmen who don't want competition and are taking advantage of the national hatred of Wal-Mart to justify their small mindedness. That's the exact opposite of revitalization.

First of all, you don't know if this is the case in Hercules. For all you know, the local business leaders, with the support of the populace, have put together a good plan for re-vitalizing the community and offering retail opportunities the community wants. And even if this isn't the case in Hercules, I can tell you for a fact that this has been the scenario in countless communities across American who ended up with big-box Wal-Marts anyways.

Secondly, what you're suggesting is that the will of the local community be, in fact, subservient to the business plan of a large corporation. I'm sorry, but I just can't agree to that. Local communities should be allowed to set their own direction and succeed or fail (within reason) on their own.

Thirdly, the reason why Wal-Mart gets "picked on" so much about this is because they, as policy, target communities such as this (i.e. small communities) because they can't fight back. There's no real sense of fairplay with Wal-Mart, who habitually arrive in small communities with their expensive legal counsel and summarily tell the town elders that their zoning regulations aren't worth the paper upon which they're written. I'm amused that you can't see how this would generate some ill-will.

[flere-imsaho]

But they could have limited the "big-box" aspect by applying size restrictions to the land in question, basically creating a "boutique commercial" classification. A retail version of "light industrial" vs "heavy industrial" if you will. As (I think) you were pointing out, they just can't say "we don't want Wal-Mart but Home Depot/Nordstrom/Target is okay".

As I said in my reply to Jim, this is actually a lot more difficult to accomplish than it sounds. Zoning regulations that are designed to keep out specific developments have to walk a very thin line between restricting certain types of development whilst not also discouraging meaningful and profitable development altogether.

Combine this with the fact that most communities don't develop zoning regulations with the express purpose of restricting certain types of development (especially not that specific), and you end up with a situation where a sufficiently-motivated corporation and/or developer can walk right over the zoning regulations.

Now, the first thing someone's going to say is "Well, when that happens, just change the zoning or get an injunction." Easy to say, but for communities like this, it gets out of hand very quickly. If a small community like this decides to fight the problem by re-zoning, they're going to spend a lot of money very quickly getting the legal language in shape and properly vetted. Then, they're immediately going to face a serious lawsuit from the offending corporation (and, again, this is time and again Wal-Mart's modus operandi), and before you know it, this small community is deep into deficit spending over this one issue. Is it any wonder that most simply decide to cave and live with Wal-Mart?

[JonInMiddleGA]

As I said in my reply to Jim, this is actually a lot more difficult to accomplish than it sounds. Zoning regulations that are designed to keep out specific developments have to walk a very thin line between restricting certain types of development whilst not also discouraging meaningful and profitable development altogether.

While it's always challenging, I'm not sure that I'd agree that it's as difficult as you're portraying it here. And I say that as someone who both covered one of the most explosive growth areas in the country (Cherokee County, GA) during the height of their expansion and as someone who has sat on a zoning board elsewhere charged with both enforcing & making zoning rules.

Maybe it varies from place to place or state to state, but with due dilligence it's not that difficult to find an ordiance that has previously accomplished whatever you're trying to accomplish AND (critically) has withstood court challenge already. There isn't a constant need to re-invent the wheel to cover old ground, a lot of the strongest ordinances I've seen are largely boilerplate that's built to specs proven to do the desired job. Being the first place to face a new situation is, as you described, a much more demanding situation but those are becoming more & more the exception.

Combine this with the fact that most communities don't develop zoning regulations with the express purpose of restricting certain types of development (especially not that specific)

This point I disagree with almost completely, again, subject to geographical differences. Virtually every piece of local zoning in Georgia was/is enacted with the clear & sole goal of restricting certain types of development - from big box retail to strip clubs to heavy industry to high density residential to pig farms in the middle of a subdivision. (to the extent of several hundred pages in my little Hooterville alone, despite very little non-residential development in the past 30 years).
The odd exceptions are provisions that are written to promote specific types of development, but those are much fewer & farther between.

In cases where communities do lose a court battle, it's a virtual certainty that they lose for one of two reasons: either they failed to do an adequate job of preparing their ordinance or they tried to enforce the existing ordinance unfairly, the latter being exponentially more common in my experience.

Adequately prepared zoning ordinances can & do work, that's one of the things that makes me such a generally strong supporter of zoning. The vast majority of problems arise when communities either fail to plan (which should not penalize the developer that's working within the rules) or try to create different rules for different people. And the latter generally fails to survive a legal challenge, which is exactly how it should be.

[Solecismic]

You're skewing my argument. I don't disagree with what you say above. This is not necessarily about "saving the little guy". This is about making it so that if a community doesn't want a big-box in its "historic downtown" or "mixed-use waterfront", they don't have to have one there. This is about communities not having to accept development that's ridiculously out of character just because the developer (or its client) has better lawyers.

Zoning is an imperfect and blunt instrument. There are lawyers who do nothing but specialize in getting around zoning regulations. Is it too much to ask businesses to attempt to adhere to the spirit of local zoning regulations, even when they can legally circumvent the spirit while adhering to the letter?

That's just poor zoning. Communities can be and are very precise. What they can't do is say "if you're named Wal-Mart and current politics indicate we don't like Wal-Mart, you can't build here."



France has "rigged its labor market" in a somewhat poorly-thought-out attempt to create a socialist safety-net for its citizens, not specifically to keep out big-box stores. The roots of the current economic system in France lie 50 years in the past, anyway, far before big-box stores existed, so I'm not sure how you can make that claim.

If you're saying that one of the consequences of this is the exclusion of large and/or chain businesses, then sure, I'll agree with that, but I very much doubt you can prove that particular effect was a prime mover in the creation of France's current market setup.


Then we agree. Read how I phrased it. That's exactly what I said.



No. I'm going to assume that like many small municipalities before them, Hercules tried to convince Wal-Mart not to build long before they went to the ED option. They may have even attempted to convince the original seller not to sell to Wal-Mart in the first place.

I'm going to assume, as they have done in the past, continue to do, and, in fact, is their modus operandi, that Wal-Mart decided to not play ball, confident that they could out-lawyer this small municipality as they have so many others.

That's bullying.

That's a lot of assuming. Like I said, I was very much on top of the McDonalds application process back in Saugatuck. I spoke to the people running the protests. I spoke to the lawyers on the McDonalds end.

It was all about the logo. McDonalds bent over backwards to try and create a store that would look like a Saugatuck store. They've done it many times. Go to downtown Ann Arbor, on Maynard a block from the University. Tell me that's a corporate eyesore that doesn't fit the community as well as anythind around it.

Wal-Mart may look like it's bullying because it has more resources. It may work around poorly-written zoning rules (which are often poorly written only because of loopholes created for existing businesses owned by people on the commission). But the bully here is the town.


Sorry, but this just isn't true. Most municipalities, especially small ones, have to choose between spending a lot of money to make zoning regulations so restrictive that they kill off business development anyway, or just rolling over against big corporations who can lawyer them right out of court. Besides, you're assuming that the average small community has the resources and foresight to put together a complex set of zoning regulations just in off chance someone like Wal-Mart is going to decide to drop a big-box there some day.

It's not that complex. You want to prevent a big box, limit the size of any building. I've seen it many times. It's simple. It's legal. It doesn't discriminate.



First of all, you don't know if this is the case in Hercules. For all you know, the local business leaders, with the support of the populace, have put together a good plan for re-vitalizing the community and offering retail opportunities the community wants. And even if this isn't the case in Hercules, I can tell you for a fact that this has been the scenario in countless communities across American who ended up with big-box Wal-Marts anyways.


A free economy requires open competition. Try taking away my Wal-Mart. I'd also lose what makes the competing supermarkets worth while, what keeps them on their toes.

Not twenty minutes ago my wife asked what I needed from the store. She was planning on going to Wal-Mart to save a couple of dollars. I mentioned I was almost out of lunch meat. She changed her plans to go to the new supermarket, because saving the couple of dollars isn't worth the gas to go to two places.

A bunch of vocal antis may say they don't want the Wal-Mart. Do they necessarily speak for everyone? Should they have the power to make decisions for everyone that are not based on economic reasons?

Secondly, what you're suggesting is that the will of the local community be, in fact, subservient to the business plan of a large corporation. I'm sorry, but I just can't agree to that. Local communities should be allowed to set their own direction and succeed or fail (within reason) on their own.

Absolutely not. That's what zoning is for. But if a business meets those zoning requirements, let the free market prevail.

Thirdly, the reason why Wal-Mart gets "picked on" so much about this is because they, as policy, target communities such as this (i.e. small communities) because they can't fight back. There's no real sense of fairplay with Wal-Mart, who habitually arrive in small communities with their expensive legal counsel and summarily tell the town elders that their zoning regulations aren't worth the paper upon which they're written. I'm amused that you can't see how this would generate some ill-will.

They "target" these communities because of economic reasons. They've made a fortune being the first to realize that a clogged downtown with inefficient and expensive parking is a destination, and a shopping center is not necessarily a destination.

I'm amused you can't see how easy it is to write fair zoning laws. In these cases, it really seems like Wal-Mart is being attacked because of its name, not because of the store itself. These communities want these big stores. They're convenient. They provide a lot of easy, entry-level jobs. They're just not popular right now. And I attribute that to successful marketing by a bunch of small businesses who would rather whine than find new ways to compete in a growing economy.

[MrBigglesworth]

I'm amused you can't see how easy it is to write fair zoning laws. In these cases, it really seems like Wal-Mart is being attacked because of its name, not because of the store itself. These communities want these big stores. They're convenient. They provide a lot of easy, entry-level jobs. They're just not popular right now. And I attribute that to successful marketing by a bunch of small businesses who would rather whine than find new ways to compete in a growing economy.
It seems to me that the community isn't rejecting Wal-Mart for being a big box retaile, but because it would be an eyesore that goes against the planned development of the town. That may just be an excuse though, I don't know the ins and outs of the case. But if you are looking to create a quaint old-fashoined town to create a destination for people from around the region to come and get dinner or go shopping, a Wal-Mart doesn't fit what you are looking for, and won't bring about the atmosphere that you are trying to obtain. I could see that as a legitimate reason to keep Wal-Mart from going in there. However, I don't like ED being used like this.

[Warhammer]

It seems to me that the community isn't rejecting Wal-Mart for being a big box retaile, but because it would be an eyesore that goes against the planned development of the town. That may just be an excuse though, I don't know the ins and outs of the case. But if you are looking to create a quaint old-fashoined town to create a destination for people from around the region to come and get dinner or go shopping, a Wal-Mart doesn't fit what you are looking for, and won't bring about the atmosphere that you are trying to obtain. I could see that as a legitimate reason to keep Wal-Mart from going in there. However, I don't like ED being used like this.

But that is Jim's point, there are other ways to keep Wal-Mart out other than ED. What happens if Best Buy acquires the land and builds there?

Also, Wal-Mart focuses on the smaller communities not because they don't have the resources to fight them, but because that was their business model when they got started! In Arkansas, Wal Mart is worshiped because these small towns didn't have places to get a lot of the stuff Wal Mart carries. Wal Mart would open a store in the county seat, or the largest town in an area and people would flock to the store to get the stuff they couldn't get anywhere else!

FWIW, I hate Wal Mart and refuse to shop there because I don't like the stores. I prefer Target and/or Costco.

[stevew]

They built this huge wal mart locally, and I must say it's a very nice design. Using all brick on the front, it's not an eyesore like the grey and blue stores can be.

[stevew]

(One of the many restrictions on the site design was a requirement that they essentially build in a lower elevation than the surrounding road frontage. They basically built the store in a hole & then built up the unimproved outparcel with the ensuing fill dirt. The result was a Supercenter that is actually a little hard to find if you don't know where it is).

Yeah, the new one in the previous post is essentially like that. You have to almost be right on it, in order to see it.

[sabotai]

The ironic thing is that they haven't batted an eye in the past while using eminent domain! The tactics they have used before now get turned on them... which makes the protestations all the more funny.

When did Wal mart use ED?

(Note: Not saying they haven't, just asking. I hate when businesses use ED to build stores)

[clintl]

Towns from Virginia to California have fought Wal-Mart in the past, claiming the chain would kill local businesses. But many more have welcomed the chain for its jobs and tax revenue, even using eminent domain to bring the chain in.




From the article. It doesn't list specifically where ED has been used for Wal-Mart's benefit, but I have no doubt it has been done.

[Axxon]

Tuesday night, during a sometimes raucous meeting, the city council voted unanimously to take Wal-Mart's land by power of eminent domain. It's a power the Supreme Court affirmed for municipalities in a controversial New London, Conn., ruling, in which the city wanted to take private property for a commercial development.


I bet Jack Cochran owns stock in Wal-Mart. That's gotta be what's behind this. :)

[Craptacular]

I just recently got appointed to the economic development committee in the village I live in, and am trying to catch up. We are one of those communities that does not want any "big-box" type stores, but I'm pretty sure we have no ordinance limiting the size of any stores. This has been a big issue in the Madison area lately, as many communities have created big-box ordinances to prevent this kind of development.

There is definitely a hatred of WalMart in the area. My favorite example is in Monona. They had a large supermarket adjoining a large K-Mart, with a gigantic ugly parking lot to serve both. They both went out of business a few years ago. So, WalMart wants to come in and build a supercenter there. If there were any places you think it would make sense to build a WalMart supercenter, it would be there (a supermarket and large discount department store replaced by one store that combines the two). They're not proposing building in a farmfield, or coming to a community that only has little mom & pop stores. I'm not really a fan of WalMart either, and I don't disagree with people who fight WalMart on the grounds of wages, business practices, etc. However, I found it laughable that people were arguing against it on the grounds of things like traffic, noise, aesthetics, and big-box development in general. Even better, they are arguing how it would hurt a couple of large retail stores across the freeway ... ones that opened up LONG AFTER the K-Mart and other grocery store were there, and likely contributed to the demise of those two stores. WalMart did not ask for any tax-incremental financing, which is becoming a joke these days. They agreed to significant architectural changes, and are building parking under the store. People who fight things on ridiculous grounds are hurting their cause by overshadowing legitimate gripes.

[Passacaglia]

There is a Best Buy in the Lincoln Park area of Chicago that actually fits this description. Its kind of strange and a bit small for a Best Buy, but it really is a win-win. I wonder if Wal-Mart would have bulked at something like that?

The one on Clark, just south of Diversey? I go there all the time!

[Glengoyne]

I really thought that this was what the NIMBY thread was about.