People Of Hercules Continue Struggle With Wal-Mart

Looks like the struggle between the people of Hercules, CA and Wal-Mart isn’t over. From the Contra Costa Times:

It was deja vu in Hercules Tuesday as the City Council, for a second time this year, unanimously invoked eminent domain to acquire a Central Hercules lot owned by the Wal-Mart Corp.

Just as when the council invoked eminent domain the first time in May, residents applauded the council Tuesday while Wal-Mart’s attorneys predicted the action would not stand up in court.

“Eminent domain is not supposed to be used as a popularity contest,” Edward Burg, an attorney for the world’s largest retailer, told the council.

Burg said courts struck down eminent domain actions in New York, Massachusetts and New Jersey that authorities there undertook in response to public outcries against a parking garage, a low-income housing project and a rehabilitation facility for people with AIDS.

“You are disrespecting the residents of this city by bullying your way into our community,” resident Ed Sharp told Wal-Mart. “You may be the retail Goliath, but that sign”—he pointed to the city seal suspended above the dais—“says ‘Hercules.’ Stand by it,” he urged the council.

Wal-Mart’s owns the 171/4-acre future Bayside Marketplace along John Muir Parkway, about midway between San Pablo Avenue and San Pablo Bay. The city contends the property is afflicted with “blight,” a necessary condition for invoking eminent domain. Blight, under state redevelopment law, can be physical or economic in nature.

The Wal-Mart lot is economically blighted for lack of activity, according to the city, which blames Wal-Mart for failing to file plans that conform to a 64,000-square-foot store size limit at Bayside Marketplace.

Wal-Mart in turn has accused the city of failing to act in good faith on its applications, the last of which, earlier this year, provided for a 99,000-square-foot Wal-Mart store at Bayside Marketplace as part of a complex that would fall within the mall’s total store space limit of 168,000 square feet.

After invoking eminent domain in May, the city did not follow up with an eminent domain action in court but instead acted several months later to perform what City Attorney Mick Cabral termed a “technical adjustment.”

In September, the council reaffirmed the redevelopment agency’s authority to invoke eminent domain, which Wal-Mart contended had expired, and extended it for another 12 years.

Wal-Mart argued then that once expired, the city’s authority to invoke eminent domain cannot be resurrected.

Cabral countered that the council can extend or revive that authority at any time before the city’s redevelopment plan for the area expires, which will not happen until about 2031.

Tuesday’s council action was a “resolution of necessity,” which allows the Hercules Redevelopment Agency to initiate an eminent domain action without a further council vote within six months. If it prevails, the city would have to pay Wal-Mart the fair-market value for the property.

Wal-Mart also challenged the city’s finding of blight. Burg noted that the city’s latest offer to buy the property, for more than $14.5 million, was $1.5 million more than the city offered Wal-Mart in May.

“Blighted property doesn’t increase in value by $1.5 million over six months,” Burg said.

Another Wal-Mart attorney, Arthur Friedman, urged the council to “abandon this illegal use of eminent domain and sit down with Wal-Mart.”

Wal-Mart sued the city earlier this month, contending the redevelopment agency’s authority to invoke eminent domain had expired and challenging the city’s finding of blight.

Residents have spoken out overwhelmingly against Wal-Mart at previous council meetings. They have said a big-box store catering to regional shoppers would clash with the city’s pedestrian-friendly vision for the waterfront and Central Hercules area. They have also warned that Wal-Mart destroys other businesses, especially smaller shops such as the city envisions for the waterfront area.