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Eminent domain "whitelist"-- states where abuses are rare.
Eminent Domain and antitrust
Using environmental laws to apply "scorched earth" to property seized by eminent domain
Don't forget OSHA
Alienation of retailer customers, or business displacement
Boycott Wal-Mart, Costco, Target, Home Depot.
Links
MUNICIPAL BLACKLIST (by state)
Small business owners and homeowners: the following municipalities (ordered by state) are on record as abusing eminent domain to seize homes and small businesses for PRIVATE use, e.g. by big-box retailers. You are advised to blacklist these municipalities because they may one day destroy YOUR business arbitrarily and capriciously to clear the way for another. Locate your new business and the jobs that go with it somewhere else.
- California. "57% of 283 executives rated California the worst state in the nation in which to locate a business. A distant second at 36% was that other liberal hotbed, New York, while the New England state formerly known as Taxachusetts was third at 18%" ("Paris, California," Wall Street Journal, 27 September 2002, page A14).
- Cypress, CA. "The City of Cypress sought to condemn the Cottonwood Christian Center for a Costco-based retail development that would generate tax revenue, unlike the tax-exempt church facility."
- Lancaster, CA. "A federal court found that Costco threatened the city that it would leave unless the city condemned Costco’s neighbor, 99 Cents Only. On June 25, 2001, the court held the only purpose of the condemnation was “to satisfy the private expansion demands of Costco.” Because that is not a public use, the court held the condemnation violated the Constitution."
- ""Almost immediately" after its rival opened, Costco told the city it needed to expand, according to the ruling in the case by U.S. District Court Judge Stephen V. Wilson, in Los Angeles. Costco, based in Issaquah, Wash., demanded the 99 Cents Only space and threatened to move to nearby Palmdale if it didn't get it, the judge wrote. Ultimately, City Manager James C. Gilley informed 99 Cents Only officials they would have to leave. In June 2000, city officials voted to condemn the 99 Cents Only site." http://www.realestatejournal.com/propertyreport/propertyreport/20010731-starkman.html
- San Jose, CA. "Some cities also have much greater problems than others, with the worst offenders including Detroit; Riviera Beach, Fla.; San Jose, Calif.; and Philadelphia." http://www.forbes.com/2003/06/11/cz_ic_0611beltway.html
- Colorado
- Denver, CO. "But if the city of Denver has its way, these small businesses will be evicted to make way for a Wal-Mart super-center." http://reclaimdemocracy.org/independent_business/walmart_eminent_domain.html
- Wheat Ridge, CO. "Last month, Wheat Ridge, Colo., designated property owned by three independent businesses as blighted. The three enterprises---a multi-generation, family-owned automotive repair shop, a billiards hall, and a kitchen cabinet business---will be booted for a Walgreens drugstore." http://reclaimdemocracy.org/independent_business/walmart_eminent_domain.html
- Connecticut
- New London, CT is attempting to clear out homes and businesses to make way for an office-and-research park. (1) (2)
- Florida
- Riviera Beach, FL "Approving the condemnation of more than 1,700 buildings and the dislocation of more than 5,000 residents
for private commercial and industrial development in Riviera Beach, Florida" (2) - "Some cities also have much greater problems
than others, with the worst offenders including Detroit; Riviera Beach,
Fla.; San Jose, Calif.; and Philadelphia." http://www.forbes.com/2003/06/11/cz_ic_0611beltway.html
- Kansas
- Merriam, KS. "Replacing a less-expensive car dealership with a BMW dealership in Merriam, Kansas"
- Pittsburg, KS. Seized land from Darrell Trent and handed it over to Home Depot. (1)
- Massachusetts. "57% of 283 executives rated California the worst state in the nation in which to locate a business. A distant second at 36% was that other liberal hotbed, New York, while the New England state formerly known as Taxachusetts was third at 18%" ("Paris, California," Wall Street Journal, 27 September 2002, page A14).
- Boston, MA. "The Boston Redevelopment Authority (BRA) plans to seize a 14-story, 110-year-old granite and sandstone
Ames Building, in order to break the leases with the buildings tenants." (2)
- Michigan
- Detroit, MI "Some cities also have much greater problems
than others, with the worst offenders including Detroit; Riviera Beach,
Fla.; San Jose, Calif.; and Philadelphia." http://www.forbes.com/2003/06/11/cz_ic_0611beltway.html
Detroit is also a high-crime hellhole that is represented, at least
partially, by John Conyers-- one of the most left-wing members of
Congress.
- Missouri
- Maplewood, MO condemned 150 homes and businesses to make room for Wal-Mart (which won a legal and political battle with Costco's developer). (1)
- Saint Louis, MO. "Last year, a federal judge sharply criticized Target Corp. for its role
in a condemnation of a St. Louis site." (1)
- Mississippi
- Canton, MS: "Seizing the homes of elderly homeowners in
Mississippi and forcing them and their extended families to move in
order to transfer the land to Nissan for a new, privately owned car
manufacturing plant..." (2)
- Nevada
- Las Vegas, NV "Taking the building of an elderly widow for casino parking in Las Vegas..." (2)
- New Jersey
- North Bergen, NJ. Condemned a store occupied by K-Mart Holding
Company in favor of a developer that planned to build a Home Depot. (1)
- New York. "57% of 283 executives rated California the worst state in the nation in which to locate a business. A distant second at 36% was that other liberal hotbed, New York, while the New England state formerly known as Taxachusetts was third at 18%" ("Paris, California," Wall Street Journal, 27 September 2002, page A14). "The Former Empire State" (Wall Street Journal, 5 January 2005) cites high energy costs, corporate taxes, health insurance costs, and unemployment taxes as four additional reasons to locate your business elsewhere. "By 2002, New Yorkers were shouldering the heaviest tax burden in the nation, both on a per-capita basis and after adjusting for personal income."
- New Cassel, NY (2)
- Port Chester, NY. On record as condemning businesses for the benefit of Costco and Bed, Bath, & Beyond. (1)
- Port Chester seems particularly bad. "A federal judge in Manhattan issued a
temporary order in February blocking Port Chester, N.Y., from condemning
rental property in favor of a grocery-store parking lot under a state law
that allows a newspaper ad to serve as notice to owners that their property
could be taken." http://www.realestatejournal.com/propertyreport/propertyreport/20010731-starkman.html
- Ohio
- Toledo, OH "Condemning 83 homes for a new Chrysler plant in Toledo, Ohio..." (2)
- Pennsylvania
- Philadelphia, PA. "Some cities also have much greater problems
than others, with the worst offenders including Detroit; Riviera Beach,
Fla.; San Jose, Calif.; and Philadelphia." http://www.forbes.com/2003/06/11/cz_ic_0611beltway.html
Philadelphia also adds a percentage point to the sales tax you must
charge, and levies a 3-4% wage tax on your employees (versus 1 to 1.5%
for most Pennsylvania municipalities).
- Texas
- Hurst, TX "Forcing two families (along with their neighbors) to move for a private mall expansion in Hurst, Texas" (2)
(2) http://www.castlecoalition.org/top_10_abuses/top_10_report.pdf (from the Castle Coalition)
Eminent Domain "Whitelist"
- Delaware
- Georgia
- Idaho
- Montana
- New Hampshire (also, no personal income tax as I recall)
- New Mexico
- South Dakota
- Wyoming
Eminent Domain and Antitrust
I am not a lawyer and I cannot give legal advice. However, consider the example, "Replacing a less-expensive car dealership with a BMW dealership in Merriam, Kansas." If I were the owner of the seized dealership, I would probably ask a lawyer whether antitrust laws could be applied to BMW and Merriam Kansas. This is because "restraint of trade" includes shutting down competitors by means other than fair competition (e.g. price and quality).
Traditional violations of antitrust laws have included tactics like buying the competitor's supplier and cutting off its raw materials or other purchased goods, making agreements with suppliers that have the same effect, or making agreements with retailers to not carry the competitor's product. It seems, however, that colluding with municipal authorities (assuming that there was collusion or discussion of who would get the dealership once Merriam took it over) to seize a competitor's dealership by eminent domain might fall under the same laws.
The same could easily apply to a big-box retailer that takes over, for example, a small clothing store and a sporting goods store. Many big-box retailers carry both sporting goods (including firearms) and clothing, so the small businesses whose property is to be seized should see a lawyer about whether this constitutes "restraint of trade." The same might apply if a big-box retailer colludes and conspires with a municipality to condemn an auto parts store, as most big-box retailers carry automobile supplies.
If it works, this strategy should be devastating because the Feds take a very dim view of restraint of trade and there are heavy penalties (e.g. fines, consent decrees) for those who are found guilty of doing it. Maybe the big-box retailers will stop abusing eminent domain after they experience their first antitrust "Hiroshima."
Using environmental laws to apply the "scorched earth" doctrine to property seized by eminent domain
There is a growing problem with seizure of land by municipal and state authorities for private use, e.g. shopping malls, private developers. Here is how those affected can (through legal and nonviolent methods) sabotage the procedure and cause trouble for the seizing authorities. [NOTE: I am not a lawyer and nothing on this page constitutes legal advice.]
"Power Grab," Wall Street Journal, 2/15/01, A18, describes how union lawyers "hit on the novel but, for California, entirely sensible idea of threatening environmental lawsuits based on state and federal laws. The game is to delay the construction of power plants until their builders sign what are called project labor agreements, or PLAs." For example, a union law firm threatened an Endangered Species Act lawsuit. "It contended that a seismic survey of land in Elk Hills, Calif., could harm plants such as the San Joaquin wooly-thread..."
Homeowners and small business owners who face eminent domain seizure of their property could probably adapt this technique to sabotage and delay construction on their former properties, thus imposing extra costs on the developer to whom the property was given. Delays in the project could discourage businesses from moving into, for example, a shopping mall. The developer's cancellation of the project (possibly including pulling out of a deal with the municipality) could leave the governmental authority stuck with the bill for the seized property and no project to bring in, for example, additional tax revenues.
- Contact an activist environmental group-- one that specializes in finding endangered species or evidence of an endangered species' presence. This is usually good for delaying a project (and every day is lost revenue for the prospective mall and its tenants) or even scuttling it completely.
- There are plenty of horror stories about property owners who find their land devalued and even made unusable for commercial purposes because a governmental agency has declared it a "wetland" or a refuge for an endangered species.
- Even flooding or inundation during heavy rain may be enough to get land declared a "wetland." Photos of seized property in its wetland condition might be sent to environmental and wildlife protective agencies before the developer to whom the land has been given breaks ground. The same can apply if there is evidence of the presence of an endangered species, remembering how spotted owls shut down lumbering operations and snail darters blocked construction of a dam.
- http://www.town.ipswich.ma.us/conservation/Wetland%20Protection%20By-Law.htm "The term "Land Subject to Flooding" shall mean all land subject to inundation by ground or surface water, including land within the 100 year floodplain, isolated land subject to flooding [describes certain property after heavy rain storms], and bordering land subject to flooding as defined in the State regulations."
- http://www.lexingtonma.org/conservation/Ruleregs.html "Protected Resource Area shall mean any bank, freshwater wetland, marsh, bog, wet meadow, swamp, creek, river, stream, pond, or lake or any land under said waters, or any land bordering thereon, or any land subject to flooding or inundation. Bordering in this context shall mean either (a) 100 feet horizontally lateral from the bank of any bog, marsh, meadow, or swamp bordering on a creek, river, stream, pond, lake, or wetland; or (b) 100 feet horizontally lateral from the water elevation of the 100-year storm, whichever is the greater of (a) or (b)." ("Any land subject to flooding or inundation" seems to be the operative phrase.)
- http://www.dep.state.fl.us/southwest/erp/Wetlands.htm"There
are many definitions of wetlands, and many kinds. In the most general
of terms, a wetland is a natural community where water is at or
covering the surface of the ground for all or part of the year. The key
in this definition is the term natural community, which helps to
exclude temporary standing floodwaters from being designated as
wetlands." "Florida has an active program to protect its wetlands. Any
activity which may damage a wetland may be conducted only after
stringent environmental review and under a permit issued by the Florida
Department of Environmental Protection or one of Florida's water
management districts." (This suggests the kinds of hoops a developer
could be made to jump through after acquiring your property through
eminent domain.)
- Find out what legal actions you can take to force the developer to file environmental impact statements.
- Find out what kind of businesses were on the condemned land before your home or business was built there. If there was a gas station (especially before the EPA) or dry cleaning establishment, one could always ask about the need for environmental remediation.
- If your home or business is in an older building, there might be asbestos in the walls...
- The developer may have to file traffic impact statements, noting that a big-box retailer may increase the burden on existing roads.
Note that retaliation of this nature need not be limited to the property that was taken by eminent domain. Disgruntled homeowners and small business owners can look for other development projects by the same retailer and apply the same tactics, thus underscoring the lesson that it is bad business to anger people by invading their property. As an example, suppose a city condemns a block of row houses. They are doubtlessly not sitting on a wetland or protecting an endagered species (although the asbestos-in-the-walls question can always be brought up). The owners might want to look for the retailer's other development projects in more rural areas that might be classifiable as wetlands or wildlife refuges.
Don't Forget OSHA
Suppose that a developer is doing construction work on land it stole from you through eminent domain abuse-- or a big box retailer that stole land from someone else a thousand miles away is building a store near where you live. Get a camera with a telephoto lens (so you don't have to trespass on "their" property). The instant you see a construction worker or other person in the construction zone without a hard hat, photograph him and send the time- and date-stamped photo to OSHA (http://www.osha.gov). The same can be done if a worker is on a high steel structure without a safety harness, or if there is some other obvious safety violation.
If the construction work is making a lot of noise (especially late at night) the police should be called with an excessive-noise complaint. (This can in fact be an issue even if the developer is working on land it acquired in a noncontroversial manner. One might try to resolve the issue with such a developer amicably but I see no reason to cut an eminent domain thief any slack whatsoever; the instant he breaks a law or local ordinance, he should be turned in.)
Alienation of customers or business displacement, and gaming the retail system to save money
Shopping malls are already under pressure from the Internet, and some have tried to restrict advertising of Web sites by their merchants. The victims of the eminent domain seizure might consider harassing (within the limits of criminal and civil law, of course--- and I am not a lawyer, so I cannot give legal advice) any merchants that rent space in the mall by circulating information on competitors' Internet sites and catalogs. Out-of-state orders would, of course, bypass local sales taxes (unless the seller has a business presence in the state). Even orders through the mall merchant's Web site, however, punish the mall owner because the owner's revenue may be based on in-mall sales. This is why malls dislike Internet sales. If enough business goes through the Web and not enough through the store, the store may close and leave the mall owner with an empty place.
It is also important to educate mall customers how to game the retail system to get extremely low prices.
(1) Buy summer items in the fall and winter items in the spring. Retailing's inefficient logistics systems (order-to-forecast as opposed to make-to-order) require them to clear their shelves for seasonal items. Heavy coats, hats, and gloves must be moved off the shelves as winter ends so they will often be marked down 50 percent or even more. Short-sleeved shirts, shorts, bathing suits, and the like must similarly be moved off the shelves before autumn.
(2) Order from the Internet. DVDs and VHSs that are sold at Target, Costco, or Wal-Mart can often be purchased for less on the Internet. As an example, someone may buy a movie at a big box retailer, get tired of watching it, and put it up for auction on E-bay. Many of the products from Bed, Bath, and Beyond also can be purchased for less online. http://froogle.google.com/ (rhymes with "frugal") will even find the lowest-priced online vendor for you.
(2) If you have children, have Santa Claus come a day or two late. This teaches your kids the virtues of delayed gratification; "Santa is going to come a couple of days after Christmas so he can bring more presents." Since Christmas merchandise is knocked down 40 percent or even more after the holiday, Santa can bring 50 percent or even more gifts for the same dollars if he comes after Christmas. (I buy normally-expensive holiday cards on the day after Christmas for 40 percent off, and use them the following year.)
BOYCOTT THE FOLLOWING BUSINESSES: they are threats to your property rights "Quotes from "Cities Use Eminent Domain to Clear Lots for Big-Box Stores" (Wall Street Journal, B1, December 8)
- Bed, Bath & Beyond Inc.
- Bed, Bath & Beyond Inc. was a benificiary of
Port Chester's abusive seizure of private property as described below.
There is a Bed, Bath & Beyond in the neighboring mall (walking
distance) that I will no longer be patronizing.
- Costco
- "Cities Use Eminent Domain to Clear Lots for Big-Box Stores" (Wall Street Journal, B1, December 8) says that Port Chester NY abused its eminent domain authority to force out small business owners to clear land, not for public use as allowed in the Constitution, but to make way for Costco Wholesale Corp. If Costco can get private property condemned in Port Chester, it could do the same to your home or business. That is an outstanding argument for all property owners (homeowners, small businesses) to boycott Costco and hopefully destroy the company to prevent such abuses in the future.
- "...In a candid letter to a concerned shareholder two years ago, the company's senior vice president for legal and administrative affairs, Joel Benoliel, acknowledged that "probably dozens" of its projects involved eminent domain "or the threat of it." He wrote that if Costco didn't do the deals, "our competitors for those sites, like Target, Home Depot, Kmart, Wal-Mart, BJ's, Sam's Club and many others, would ... and our shareholders would be the losers.""
- Home Depot
- The same article cites Home Depot as a beneficiary of abusive property
condemnations (Pittsburg, Kansas), which is too bad. I bought a cabinet
from the local Home Depot but I will try to avoid doing business with
them in the future. I see no point in buying home improvement products from a company that is a threat to my home.
- Target
- "Last year, a Federal judge sharply criticized Target Corp.
for its role in condemnation of a St. Louis site." When Target's
landlord asked for higher rent (apparently in response to Target's
request to demolish the store and build a larger one), Target tried to
get the property condemned by the local municipality. I personally
interpret this as a quasi-legal attempt to steal private property and I
do not do business with thieves.
- Wal-Mart
- "Wal-Mart's developer won [over Costco's]-- and 150 homes and
businesses were condemned." A strong argument for "condemning" both
Wal-Mart and Costco by doing as little business as possible with them,
thus turning their retail profits into losses and closing their stores.
- The Castle Coalition
- "Despite the requirement of the United States Constitution and the constitutions of all fifty states, governments across the country routinely condemn property for the use of other private parties. Courts often decide to stand passively by and allow these travesties to occur."
- Eminent Domain Resource Center
- http://froogle.google.com/ will help you buy many goods for less than you will pay at Wal-Mart, Target, and Bed, Bath & Beyond (and maybe even at Costco), all of which are listed as beneficiaries of eminent domain theft.
- Also try Amazon.com and E-bay for used CDs and DVDs.
Unlike older media (phonograph records and tapes), CDs and DVDs do not
wear out when played and they should perform as well as new ones from
Wal-Mart or Target.
- http://www.nolandgrab.org/ No Land Grab. "Eminent domain now is thievery"
- Pacific Legal Foundation. Published an excellent opinion column, "Eminent Domain Abuse Growing Rampant"
- Yahoo group: Floridians Against Unlawful Land Theft (FAULT)
- Yahoo group: People Against Land Stealing (PALS)
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