7/03/2007

Wal-Mart proclaims win in Hercules fight: Contra Costa CA Times, 6/15/07

By Tom Lochner

A Contra Costa judge, confirming her earlier tentative ruling, has invalidated a Hercules ordinance that underpinned the city's effort to acquire by eminent domain a tract owned by retail giant Wal-Mart.

The ordinance, adopted by the City Council in September, sought to confirm the continued existence of the city's eminent domain authority in the so-called Dynamite Project Area and extend it for another 12 years.

Wal-Mart spokesman John Simley this week proclaimed "a clear win for the many thousands of customers who know Wal-Mart saves them money so they can live better" and said it would resume the process of applying to the city to build a store.

But City Attorney Mick Cabral said Hercules is considering other legal avenues for possibly using eminent domain.

In late spring 2006, the City Council authorized the invocation of eminent domain to seize the property for its fair-market value, contending Wal-Mart had shown bad faith by filing application after application for a store that would exceed the size limit under a 2003 development agreement with the previous owner of the tract. The parcel remained fallow, leading to a finding of economic blight by the city. The Dynamite Project Area refers to a dynamite plant that closed several decades ago, leaving behind physical blight.

Wal-Mart's latest, scaled-down application last year was for a 99,000-square-foot store, down from the 140,000-plus square feet of two earlier applications. The city contends the maximum size for any individual store on the tract is 64,000 square feet. Wal-Mart says its store falls within the approximately 168,000 total square footage of store space allowed for the tract.

The Wal-Mart tract is the 17-1/4-acre future Bayside Marketplace off John Muir Parkway roughly midway between San Pablo Avenue and San Pablo Bay.

Wal-Mart attacked the ordinance adopted in September on two main grounds: first, that the city's eminent domain authority in the project area had lapsed and therefore could not be extended; and second, that the city could not back up its finding of blight, a necessary condition for asserting eminent domain. Blight must be both physical and economic under current redevelopment law.

Contra Costa Superior Court Judge Judith Craddick, in striking down the September ordinance amending the redevelopment plan, ruled that Hercules had not made the case that the property is blighted. The ruling did not address whether the city's eminent domain authority had actually lapsed at the time the council adopted its ordinance.

"We're pleased with the judge's decision confirming that the city's ordinance was not valid," Simley said. "We're looking forward to working with the city to complete the application process and bring a very distinctive new store to the community."

Cabral did not elaborate on what basis the city might yet try to seize the Wal-Mart tract by eminent domain. The council discussed the Wal-Mart-eminent domain issue in closed session earlier this week, but Mayor Ed Balico said there was nothing to report when the council reconvened in open session.

Cabral expressed confidence that even if the city should decide no longer to pursue eminent domain, the terms of the 2003 development agreement would block the kind of store Wal-Mart has proposed.

Wal-Mart's announcement in late 2005 that it had purchased the Bayside Marketplace tract to build a store there has provoked stiff opposition from residents who say it would clash with the pedestrian-friendly concept of the Central Hercules and Waterfront areas by drawing automobile traffic mostly from out of town. Many residents denounced Wal-Mart at City Council meetings last year, accusing the company of paying low wages and providing lousy benefits to its employees while causing a net loss of sales tax receipts for host cities by destroying neighboring businesses. Wal-Mart has denied those charges and maintained throughout that it enjoys widespread community support in Hercules.

Craddick held in abeyance a permanent injunction to restrain the city from implementing a 2001 merged and restated redevelopment plan until the 2006 amendment is lawfully adopted, pending proof from the city of actions it has already taken to implement the 2001 plan. Cabral said the city expects to present the evidence by mid-August and that a final court ruling on the issue is likely in mid-September.


Contra Costa CA Times: http://www.contracostatimes.com