March 14, 2007
Eminent Domain Works for Retailers
A bill before Utah’s governor would make it possible for communities to use eminent domain to take property away from owners in designated blighted areas so the land may be used for private development.
If passed, House Bill 365 would allow the community of Ogden to condemn land that would be used for to build a Wal-Mart. The city has sought a Wal-Mart for a number of years and attempted to use eminent domain in the past to secure a store. Ogden points to the jobs and tax revenues a Wal-Mart would provide as a clear sign the public good was being served.
Sen. Curt Bramble, R-Provo, initially opposed to the idea of eminent domain being used to bring Wal-Mart to Ogden two years ago, but has since changed his mind.
Sen. Bramble told The Associated Press, "I still believe the power of eminent domain should not be used for private development. There are some circumstances, however, where there may be a justification."
Rulon Yorgason is an Ogden resident opposed to 365. "It is mob rule," he said. "If people in your neighborhood say you’ve got to give it up, there’s nothing else you can do."
Steven Anderson, director of the Castle Coalition, an organization opposed to the use of eminent domain for commercial purposes, said the problem with the bill before Gov. Huntsman is it isnot defined clearly enough and open to abuse.
Terms such as "blight" and "excessive vacancy" are open to a wide variety of subjective interpretations, he said.
"No one’s home or small business is safe," said Mr. Anderson.
Rep. Stephen Urquhart, R-St. George, sponsored the bill. "We want to do our best to respect private property, and that’s what our citizens expect. But clearly, there is an expectation that government also help out with some blight situations. I think that is a reality we need to deal with," he said last month as the bill was debated.
Wal-Mart is not the only retailer to have been caught up in intra-community battles such as the one going on in Ogden.
Back in 2005, a spokesperson for Home Depot, told the Atlanta Business Chronicle, "When cities or states identify areas for redevelopment and present them to The Home Depot for consideration, the company has an obligation to its customers, shareholders and associates to make a careful review of the potential investment, its return to the shareholders and the community. If a city moves forward with plans to use eminent domain, The Home Depot is often one of the most desired tenants to participate in this type of redevelopment."
Discussion Questions: Where do you stand on the use of eminent domain being used to allow private development that may be seen as benefiting a community or state? Does the definition of what constitutes the "public good" need to be broadened or otherwise redefined to allow for the benefits private development may bring to a community?
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The judgment passed in Berman v. Parker, 348 U.S. 26 (1954) extended the definition of ‘public good’ in eminent domain to include urban improvement projects, especially in blighted areas that needed to be renewed. Interestingly, the Supreme Court decided that even if some of the properties being condemned were not blighted or in need of re-development it was necessary to expropriate them to effectively carry out the public good (specific instance was a store owner who claimed that since his store was not blighted, his property being handed over to developers would be taking away from one businessman and giving to another). So it would appear that the law would be on the side of the re-developers and Wal-Mart in the case of Ogden. Personally, if I were one of the property owners being condemned, I would not be a happy camper and may not be willing to see the big picture. But as a matter of fact, businesses like Wal-Mart and Home Depot have historical data that supports the view that they have improved the economies of the communities they have opened up in by pulling in revenue from all the neighboring areas. In that sense, this can be included in the definition of ‘public good.’
Growing up in what was then the rural edges of Milwaukee, Wisconsin, my parents also were the victims of eminent (more appropriately spelled ‘imminent’) domain via the DOT and highway expansion. Ironically, this led to rapid suburban expansion and retail “blight.” What was then a new concept, the mall, was built and along with it came strip malls, QSRs, Wal-Mart, Home Depot, apartments and all of the social challenges that followed. The mall, 35 years later, is now completely vacant, its skeleton having outlived its ‘customer experiences,’ waiting for some new land developer to step forward. They called it progress then, as they do today but history puts all things in context.
When retailers, particularly Wal-Mart, start leveraging their political (commercial) clout to exercise eminent domain then, as Ryan Mathews correctly states, we are on a very slippery slope indeed. As consumers continue to take control of their communication and commerce vehicles they will not easily forget their neighbor that ‘invaded’ their neighborhood.
On a brighter note, a college friend opened a small folk club and cafe in Fort Atkinson, WI, The Cafe Carpe, and as the president of the town council, successfully repelled Wal-Mart from invading their small community. When you’re there, stop in and say hello and Thanks to Bill.
I’m sure someone will correct me if I’m wrong but aren’t there a whole load of empty stores all over the country where Wal-Mart thought it would be cool to open then changed their minds and left places deserted but wouldn’t let anyone else take them over? Would these be eligible for application of eminent domain principles? Surely great big deserted stores or malls are not good for the local economy or anyone’s ideas of aesthetics. They might even be seen as blight.
That said, and although I am a great believer in the importance of the community, I do not believe that an individual’s property can be justifiably force purchased just for yet more commercial development. I am even opposed to what is going on in London in the almighty name of the Olympics even though that is less obviously commercial. What I am in favour of is (and please forgive my use of language here, I do consider this term to be at least semi-obscene) regeneration. As Bill pointed out, blight does not happen overnight. As it is also in the eye of the beholder, it is debatable whether individual houses or stores qualify and those individual rights do need to be upheld. There are far too many opportunities for the unscrupulous to get their foot in the door to allow such policies ever to be agreed without extremely tight supervision and definition.
Sounds like Wal-Mart influenced Senator Bramble, don’t you think? It wouldn’t be the first time a politician waffled when buttered up and drenched in syrup. As a family member used to remark, “make sure you get syrup into every little square.” Our family is from Oklahoma, close enough to Arkansas to inherit such sayings.
Eminent domain should be a voted-on, public decision based on how bad they want it and how bad they need it (the property). The issue then becomes cost. Once a community decides by popular vote that they want their neighbor’s property for whatever reason, it’s time to calculate fair market value, relocation expenses, and compensation for psychological pain and suffering (for owners who are forced out of decades-old family homes, away from spectacular views, more distant from relatives, etc.). Public vs. private use then becomes moot. Eminent domain should become just as victims-rights, litigation-prone as any other legal issue where juries decide cost and damages. That’ll make local governments think twice. Bottom-line, pay the owners, not the politicians.
I find it startling in this day and age (i.e. the post-“Kelo” furor age) that this idea would surface in Utah (of all places) involving Wal-Mart (of all companies).
Those who actually read the Supreme Court holding will recall the rationale for the decision–which even then barely won a majority–was that (the particular) e.d. was part of a “comprehensive…and well crafted redevelopment scheme;” e.d. was explicitly rejected if the purpose was solely to benefit a private party. While the story doesn’t really provide enough background to judge this case intelligently, it seems to veer toward the latter.
Eminent domain started out for the right reasons to allow governments to acquire land needed for the public’s best interests. As with so many things, big money has “clouded the judgment” of our politicians into believing that private businesses with the money to make big political contributions have the public’s best interests in mind. And even if they don’t, the new business will create more jobs, pay more taxes and benefit us all more that way.
In my opinion, eminent domain should be allowed only for roads, schools and other public projects that clearly benefit the general public and can’t be done any other way. It should never be done for private enterprises–period! Politicians should never be able to favor one private landowner over another.
There are so many problems with the common good argument? How is it determined? Who is considered when talking about the common good? How do you know if project really helps the common good? What is the common good anyway?
With all of that aside, if the area were truly attractive to the businesses because of potential sales, they would be willing to buy the land and build? To make it more attractive municipalities can offer tax incentives to the companies and/or individuals? Condemning the homes and giving the land to a private company doesn’t make good business sense unless you are increasing the company’s taxes so they give back to the community or requiring that the hire local people or conduct training programs for local potential employees or that they support the local school or do something to promote the local good if they are getting land for free.
Emminent Domain practices must be open and very public. There have been too many back room deals to transform “blighted” communities into Wal-mart parking lots and environmental disasters, or worse…Caldor, Ames and host of other failed retailers.
Yet retail development is a core concern of city planners. Without the right retail zoning, access and parking, an urban center quickly loses its edge and a neighborhood loses its appeal.
The arguments for development are compelling: tax base, increased jobs, community development, stimulating private investment. On the other hand, seizing property can be devastating to families, the neighborhood, property taxes, and many intangibles. The trade-offs need to be discussed in open forums so that planners and elected officials can wrestle with tough trade offs without any hint of impropriety.
Using Eminent Domain for commercial development is simply wrong and un-American. The town I live in has abused this beyond belief. Eminent Domain was created so government could build for government uses only. This is for something the whole community will benefit from, not some developer. If a new school is needed then it is fine, assuming it is done right. In reality, when Eminent Domain is used to give land to developers, it is simply payoff to big campaign donors. If a developer wants to, they can simply buy the land at market prices.
The real test of the appropriateness of eminent domain comes in the implementation. The inherent problem with it is that it pits one individual’s judgment of “blight” or “common good” over another’s. In this case, the property owner’s. I know the law refers to “common good” as thought this were some quantifiable measure of the collective will, but that will is most often defined and implemented by a single bureaucrat or department. And that’s where the trouble lies.
As with others above, I have a personal experience with this issue. My parents owned a 20 acre parcel in NC when Interstate 40 was being built. The DOT held town meetings laying out the route and informing property owners that “this is determined to be the best route for the road, based on the lay of the land. Our objective is to build the straightest road possible for safety reasons.” That route touched a 1 acre corner of our land. Then the politically connected doctor who owned land adjacent to ours (and that would carry the bulk of the proposed roadway) suddenly determined he was building a subdivision there.
You guessed the result already, I’m sure. As you drive I 40 East into Asheville, wave to Mom and Dad as you go around the big curve in the road. They still live on the two acres of land left.
This is a very emotional issue and difficult to solve. On one hand, if you leave things alone they will probably only get worse. On the other hand the very foundation of our whole economic system is based on the concept of private capital ownership. The challenge is that you don’t want to make blight a profit center. If you are not careful, greedy individuals will begin buying up properties then ignoring them in the hope that the government will eventually buy them back at inflated prices. So how do you avoid blight, ensure property rights, prevent scamming the system, and not throw someone out of the home they have occupied for 50 years, all at the same time?
First of all, this is a perfect example of how an ounce of prevention is worth a pound of cure. The blighted areas did not fall into disrepair all at once. Someone was not doing their job to let the property get blighted in the first place. That aside, the question is now how do you get out of the situation? I think you have no choice but to use eminent domain. I think there has to be a clear distinction between “owner occupied” and rented property, whether the occupant is a business or an individual. Tenants should also be protected if they have been there more than 10 years. For occupants who have been there more than 10 years, they should get double the full market value of comparable space in the un-blighted areas of the community. There may be a sliding scale for everyone else, but the absentee landlords who created the situation should get nothing.
Having grown up in Ogden, I have some empathy for those who want to see the city cleaned up a bit. But, as a practical matter, allowing any municipality to use eminent domain as a way of boosting commercial activity seems to me to be the first step on a very, very slippery slope. What would stop certain businesses,for example, from “incenting” lawmakers to use eminent domain as a means of accessing land they couldn’t get through normal commercial negotiation?
The doctrine of eminent domain came into being to allow governments to make necessary changes in their communities. But the litmus test of those changes is supposed to be the common good of the community. While that’s an ambiguous standard at best, it’s easier to see in the case of, say, a road that it is in the case of, say, a Wal-Mart.
One final note. Last year I walked through the Neighborhood Market close to the house I grew up in in Ogden. The first thing that happened was that I was (almost quite literally) assaulted by the store manager demanding to know, “Which one of my competitors do you work for?” He didn’t seem to want to accept the fact that I was just checking out the old neighborhood. Carefully stalking my friend and me as we strolled through the store he continued to act in what could best be charitably be described as an erratic manner. I could smell the produce department before I could see it. The green beans were dessicated and the peppers were rotting in their trays.
If this is how lawmakers define the common public good, maybe they need to go back to the drawing board.
I think there are other ways to convince land owners to give in to development other that eminent domain. If the property is clean, up to code and does not endanger others then it should be theirs to do what they want. It is bad to others that want to sell their land for such projects to loss out but that just part of our rights and freedoms.
It’s awfully hard for a small businessperson to fight City Hall. It usually takes a lot of time and money, which small businesspeople don’t have. So when it comes to eminent domain, it’s unlikely they’ll find justice. Adding to the injury, the article doesn’t make it clear if Wal-Mart will have to reimburse the government for its costs. In many instances, the public pays for the eminent domain property, and then the government sells or leases it to a private developer for $1 or some other nominal price. It isn’t even clear if there will be an open competitive bid auction for the property. Maybe another retailer or developer will pay more than Wal-Mart.
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The judgment passed in Berman v. Parker, 348 U.S. 26 (1954) extended the definition of ‘public good’ in eminent domain to include urban improvement projects, especially in blighted areas that needed to be renewed. Interestingly, the Supreme Court decided that even if some of the properties being condemned were not blighted or in need of re-development it was necessary to expropriate them to effectively carry out the public good (specific instance was a store owner who claimed that since his store was not blighted, his property being handed over to developers would be taking away from one businessman and giving to another). So it would appear that the law would be on the side of the re-developers and Wal-Mart in the case of Ogden. Personally, if I were one of the property owners being condemned, I would not be a happy camper and may not be willing to see the big picture. But as a matter of fact, businesses like Wal-Mart and Home Depot have historical data that supports the view that they have improved the economies of the communities they have opened up in by pulling in revenue from all the neighboring areas. In that sense, this can be included in the definition of ‘public good.’
Growing up in what was then the rural edges of Milwaukee, Wisconsin, my parents also were the victims of eminent (more appropriately spelled ‘imminent’) domain via the DOT and highway expansion. Ironically, this led to rapid suburban expansion and retail “blight.” What was then a new concept, the mall, was built and along with it came strip malls, QSRs, Wal-Mart, Home Depot, apartments and all of the social challenges that followed. The mall, 35 years later, is now completely vacant, its skeleton having outlived its ‘customer experiences,’ waiting for some new land developer to step forward. They called it progress then, as they do today but history puts all things in context.
When retailers, particularly Wal-Mart, start leveraging their political (commercial) clout to exercise eminent domain then, as Ryan Mathews correctly states, we are on a very slippery slope indeed. As consumers continue to take control of their communication and commerce vehicles they will not easily forget their neighbor that ‘invaded’ their neighborhood.
On a brighter note, a college friend opened a small folk club and cafe in Fort Atkinson, WI, The Cafe Carpe, and as the president of the town council, successfully repelled Wal-Mart from invading their small community. When you’re there, stop in and say hello and Thanks to Bill.
I’m sure someone will correct me if I’m wrong but aren’t there a whole load of empty stores all over the country where Wal-Mart thought it would be cool to open then changed their minds and left places deserted but wouldn’t let anyone else take them over? Would these be eligible for application of eminent domain principles? Surely great big deserted stores or malls are not good for the local economy or anyone’s ideas of aesthetics. They might even be seen as blight.
That said, and although I am a great believer in the importance of the community, I do not believe that an individual’s property can be justifiably force purchased just for yet more commercial development. I am even opposed to what is going on in London in the almighty name of the Olympics even though that is less obviously commercial. What I am in favour of is (and please forgive my use of language here, I do consider this term to be at least semi-obscene) regeneration. As Bill pointed out, blight does not happen overnight. As it is also in the eye of the beholder, it is debatable whether individual houses or stores qualify and those individual rights do need to be upheld. There are far too many opportunities for the unscrupulous to get their foot in the door to allow such policies ever to be agreed without extremely tight supervision and definition.
Sounds like Wal-Mart influenced Senator Bramble, don’t you think? It wouldn’t be the first time a politician waffled when buttered up and drenched in syrup. As a family member used to remark, “make sure you get syrup into every little square.” Our family is from Oklahoma, close enough to Arkansas to inherit such sayings.
Eminent domain should be a voted-on, public decision based on how bad they want it and how bad they need it (the property). The issue then becomes cost. Once a community decides by popular vote that they want their neighbor’s property for whatever reason, it’s time to calculate fair market value, relocation expenses, and compensation for psychological pain and suffering (for owners who are forced out of decades-old family homes, away from spectacular views, more distant from relatives, etc.). Public vs. private use then becomes moot. Eminent domain should become just as victims-rights, litigation-prone as any other legal issue where juries decide cost and damages. That’ll make local governments think twice. Bottom-line, pay the owners, not the politicians.
I find it startling in this day and age (i.e. the post-“Kelo” furor age) that this idea would surface in Utah (of all places) involving Wal-Mart (of all companies).
Those who actually read the Supreme Court holding will recall the rationale for the decision–which even then barely won a majority–was that (the particular) e.d. was part of a “comprehensive…and well crafted redevelopment scheme;” e.d. was explicitly rejected if the purpose was solely to benefit a private party. While the story doesn’t really provide enough background to judge this case intelligently, it seems to veer toward the latter.
Eminent domain started out for the right reasons to allow governments to acquire land needed for the public’s best interests. As with so many things, big money has “clouded the judgment” of our politicians into believing that private businesses with the money to make big political contributions have the public’s best interests in mind. And even if they don’t, the new business will create more jobs, pay more taxes and benefit us all more that way.
In my opinion, eminent domain should be allowed only for roads, schools and other public projects that clearly benefit the general public and can’t be done any other way. It should never be done for private enterprises–period! Politicians should never be able to favor one private landowner over another.
There are so many problems with the common good argument? How is it determined? Who is considered when talking about the common good? How do you know if project really helps the common good? What is the common good anyway?
With all of that aside, if the area were truly attractive to the businesses because of potential sales, they would be willing to buy the land and build? To make it more attractive municipalities can offer tax incentives to the companies and/or individuals? Condemning the homes and giving the land to a private company doesn’t make good business sense unless you are increasing the company’s taxes so they give back to the community or requiring that the hire local people or conduct training programs for local potential employees or that they support the local school or do something to promote the local good if they are getting land for free.
Emminent Domain practices must be open and very public. There have been too many back room deals to transform “blighted” communities into Wal-mart parking lots and environmental disasters, or worse…Caldor, Ames and host of other failed retailers.
Yet retail development is a core concern of city planners. Without the right retail zoning, access and parking, an urban center quickly loses its edge and a neighborhood loses its appeal.
The arguments for development are compelling: tax base, increased jobs, community development, stimulating private investment. On the other hand, seizing property can be devastating to families, the neighborhood, property taxes, and many intangibles. The trade-offs need to be discussed in open forums so that planners and elected officials can wrestle with tough trade offs without any hint of impropriety.
Using Eminent Domain for commercial development is simply wrong and un-American. The town I live in has abused this beyond belief. Eminent Domain was created so government could build for government uses only. This is for something the whole community will benefit from, not some developer. If a new school is needed then it is fine, assuming it is done right. In reality, when Eminent Domain is used to give land to developers, it is simply payoff to big campaign donors. If a developer wants to, they can simply buy the land at market prices.
The real test of the appropriateness of eminent domain comes in the implementation. The inherent problem with it is that it pits one individual’s judgment of “blight” or “common good” over another’s. In this case, the property owner’s. I know the law refers to “common good” as thought this were some quantifiable measure of the collective will, but that will is most often defined and implemented by a single bureaucrat or department. And that’s where the trouble lies.
As with others above, I have a personal experience with this issue. My parents owned a 20 acre parcel in NC when Interstate 40 was being built. The DOT held town meetings laying out the route and informing property owners that “this is determined to be the best route for the road, based on the lay of the land. Our objective is to build the straightest road possible for safety reasons.” That route touched a 1 acre corner of our land. Then the politically connected doctor who owned land adjacent to ours (and that would carry the bulk of the proposed roadway) suddenly determined he was building a subdivision there.
You guessed the result already, I’m sure. As you drive I 40 East into Asheville, wave to Mom and Dad as you go around the big curve in the road. They still live on the two acres of land left.
This is a very emotional issue and difficult to solve. On one hand, if you leave things alone they will probably only get worse. On the other hand the very foundation of our whole economic system is based on the concept of private capital ownership. The challenge is that you don’t want to make blight a profit center. If you are not careful, greedy individuals will begin buying up properties then ignoring them in the hope that the government will eventually buy them back at inflated prices. So how do you avoid blight, ensure property rights, prevent scamming the system, and not throw someone out of the home they have occupied for 50 years, all at the same time?
First of all, this is a perfect example of how an ounce of prevention is worth a pound of cure. The blighted areas did not fall into disrepair all at once. Someone was not doing their job to let the property get blighted in the first place. That aside, the question is now how do you get out of the situation? I think you have no choice but to use eminent domain. I think there has to be a clear distinction between “owner occupied” and rented property, whether the occupant is a business or an individual. Tenants should also be protected if they have been there more than 10 years. For occupants who have been there more than 10 years, they should get double the full market value of comparable space in the un-blighted areas of the community. There may be a sliding scale for everyone else, but the absentee landlords who created the situation should get nothing.
Having grown up in Ogden, I have some empathy for those who want to see the city cleaned up a bit. But, as a practical matter, allowing any municipality to use eminent domain as a way of boosting commercial activity seems to me to be the first step on a very, very slippery slope. What would stop certain businesses,for example, from “incenting” lawmakers to use eminent domain as a means of accessing land they couldn’t get through normal commercial negotiation?
The doctrine of eminent domain came into being to allow governments to make necessary changes in their communities. But the litmus test of those changes is supposed to be the common good of the community. While that’s an ambiguous standard at best, it’s easier to see in the case of, say, a road that it is in the case of, say, a Wal-Mart.
One final note. Last year I walked through the Neighborhood Market close to the house I grew up in in Ogden. The first thing that happened was that I was (almost quite literally) assaulted by the store manager demanding to know, “Which one of my competitors do you work for?” He didn’t seem to want to accept the fact that I was just checking out the old neighborhood. Carefully stalking my friend and me as we strolled through the store he continued to act in what could best be charitably be described as an erratic manner. I could smell the produce department before I could see it. The green beans were dessicated and the peppers were rotting in their trays.
If this is how lawmakers define the common public good, maybe they need to go back to the drawing board.
I think there are other ways to convince land owners to give in to development other that eminent domain. If the property is clean, up to code and does not endanger others then it should be theirs to do what they want. It is bad to others that want to sell their land for such projects to loss out but that just part of our rights and freedoms.
It’s awfully hard for a small businessperson to fight City Hall. It usually takes a lot of time and money, which small businesspeople don’t have. So when it comes to eminent domain, it’s unlikely they’ll find justice. Adding to the injury, the article doesn’t make it clear if Wal-Mart will have to reimburse the government for its costs. In many instances, the public pays for the eminent domain property, and then the government sells or leases it to a private developer for $1 or some other nominal price. It isn’t even clear if there will be an open competitive bid auction for the property. Maybe another retailer or developer will pay more than Wal-Mart.