Tuesday, June 23, 2015
First off, thanks to Stephen Miller for shepherding the blog for the last year-plus. We co- and contributing editors have been off on various adventures, but Stephen has asked us to recommit to regular blogging and I know we're all excited to do so.
Back before I became a land use lawyer in private practice in Colorado, I was the Managing Attorney of the Land Use Clinic at the University of Georgia. We did a fair amount of work around big box development, including maintaining a guidebook for Georgia local governments. So, I continue to follow news about big box stores with some interest. Recently, the Institute for Local Self-Reliance published a piece, "For Cities, Big-Box Stores Are Becoming Even More of a Terrible Deal." The story outlines the efforts of chains like Lowes to avoid local property taxes by an ingenious method:
From the story:
Figuring out the value of a property can be a complicated business. In Michigan, town and county assessors typically use a property’s construction costs, minus depreciation, as a primary metric to determine its fair market value; taxable value is half that amount. Property owners sometimes prefer, instead, to use the sale prices of comparable properties. This was the approach that Lowe’s took—with a catch. Lowe’s looked at the definition of the word “comparable,” and decided to stretch it. It said that, because big-box stores are designed to be functionally obsolescent, that comparable stores are those that have been closed and are sitting empty—the “dark stores” behind this method’s name.
“Unlike many other commercial properties,” the assessor hired by Lowe’s argued in court, “free standing ‘big-box’ stores like the subject [property] are not constructed for the purpose of thereafter selling or leasing the property in the marketplace.”
It’s an established part of the big-box retail model that the boxes themselves be custom-built, cheaply constructed, and disposable. If retailers decide that they need a bigger space, it’s cheaper for them to leave the old one behind and build a new one. When Walmart, for instance, opened its wave of new, twice-the-size Supercenters across the country in 2007, it left hundreds of vacant stores behind it. This means that new, successful stores like the Marquette Lowe’s are rarely the locations that are up for sale, and that when big-box stores do come on the market, it’s because they’ve already failed or been abandoned by the retailer that built them. In other words, Lowe’s was saying, it had built a property that, despite generating roughly $30 million in annual sales for the company, had very little value, and because of that, it should get a break in its property taxes.
According to the report, this is part of a larger scheme by large chains to avoid property tax implications, which has significant ramifications for local governments:
As one example, take Walmart, the largest among them, which looks for tax loopholes wherever it can find them. “For every kind of tax that a retail company would normally pay or remit to support public services, Walmart has engineered an aggressive scheme to pay less and keep more,” found a 2011 report by the non-profit research organization Good Jobs First. These include using its fleet of lawyers to systematically challenge its property tax assessments, and gimmicks such as deducting rent payments made to itself through captive real estate investment trusts. Good Jobs First calculated that these tactics cost state and local governments more than $400 million a year in lost revenue, and concluded, “Walmart may be more of a fiscal burden than a benefit to many of the communities in which it operates.”
There’s also the other side of a local government’s ledger. Big-box retail is expensive to maintain. Because these stores are located outside of town centers and designed for car culture, they require local governments to extend and bolster public services and infrastructure like sewers, roads, and police forces. They also rely on these services heavily. When eight communities in central Ohio looked at the fiscal impacts of big-box retail, they found that the stores actually demanded more public services than they generated in revenue, and created a drain on municipal budgets to the tune of a net annual loss of $0.44 per square foot, or about $80,000 for a typical Walmart supercenter.
Here at LUPB we've blogged a great deal about big box stores (a search of the site generates over 200 hits) and really, rarely is it good news. But, we'll keep our eyes open for future developments.
Jamie Baker Roskie