Thursday, May 25, 2006

Hercules has more muscle than Wal-Mart

   The latest in the Wal-Mart Wars:  A big story this week was the vote of Hercules, a small and tony suburb northeast of San Francisco, to use eminent domain to take land on which Wal-Mart planned to build a store.  While only the most strident property rights advocates shed a tear for Wal-Mart, who will be compensated, this use of eminent domain provides a good chance to tee off against government with both rightist and leftist critiques.   

    First, although this use of eminent domain would seem to fit with Kelo's approval of "government knows best" what's good for the town, what about an analogy to "spot zoning"?  The idea in zoning is that law should treat similar spots similarly, and that government shouldn't single out a single "spot" or landowner for special zoning.  If we applied a like idea to the use of eminent domain, it might be acceptable to use the power for a certain category of land -- "blight" is the most common example, of course -- but not simply because the government doesn't like a particular landowner or its proposed use of land.

  From a leftist angle, an interesting story in San Francisco's alternative paper, SFGate, points out that local opponents argued that the store wouldn't fit in with the wealthy ambience of the town and thus isn't desired.  The point that the Wal-Mart might serve the needs of residents of less-affluent neighboring towns didn't make an impression, of course, on the Hercules council.  So, isn't this simply a Mt. Laurel situation, with shampoo replacing housing:  An affluent suburb uses it land use power to stifle market demand by the less affluent in the area?  Should California law require, as New Jersey did with housing, exclusive towns to consider the market demands of the less affluent?        

http://lawprofessors.typepad.com/land_use/2006/05/hercules_has_mo.html

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Comments

Hi, Paul,

Since New Jersey law allows rich suburbs to meet their fair housing obligations by paying for homes built in segregated cities, the result of the Mount Laurel decision is not only to increase racial separation in the state, but also to ensure the continued re-election of the urban incumbents who are credited with providing the new homes.

sam

Posted by: sam graff | May 29, 2006 4:13:24 PM