Ruling revokes land seizure: Contra Costa CA Times, 6/1/07

Hercules Council suffers setback in battle to keep out Wal-Mart, but company still needs OK to build a store

By Tom Lochner

Hercules [CA] lost a round in its battle to keep out Wal-Mart when a judge tentatively ruled that the ordinance the City Council invoked last year to seize the retail giant's property by eminent domain is invalid.

But even if Contra Costa Superior Court Judge Judith Craddick affirms her tentative ruling and the city makes no further eminent domain attempts, it would not mean Wal-Mart will ever build a store in Hercules, City Attorney Mick Cabral said Thursday.

"Instead of becoming the owner of the property, the city would then process (Wal-Mart's) application on its merits," Cabral said. "The process just resumes."

It is a process in which the retailer so far has not fared well.

Hercules, in oral arguments Tuesday, asked Craddick to reconsider her tentative ruling. A final ruling is expected any day, Cabral said.

The city rejected three previous Wal-Mart applications on the grounds the retailer exceeded size limits that derive from a 2003 development agreement with a previous owner. Wal-Mart owns the 171/4-acre future Bayside Marketplace on John Muir Parkway about midway between San Pablo Avenue and San Pablo Bay.

Wal-Mart's latest application last year was for a 99,000-square-foot store - down from 140,000-plus square feet in earlier plans but still larger than the 64,000-square-foot limit the city claims by virtue of the 2003 agreement. Wal-Mart has said 64,000 square feet is merely a guideline.

The City Council will discuss what to do next in closed session June 12, Cabral said. Alternatives include appealing the ruling to a higher court, going ahead with eminent domain under a 1996 redevelopment plan amendment whose eminent domain authority the city believes is still valid or forgoing eminent domain and entertaining the next Wal-Mart application.

In her tentative ruling, Craddick agrees with Wal-Mart attorney Edward Burg that a September Hercules City Council ordinance is invalid. That ordinance purported to confirm the continued existence of the city's eminent domain authority in the so-called Dynamite Project Area and extended it for an additional 12 years. Burg contended the authority had lapsed and therefore could not be extended.

Craddick left open the possibility that a redevelopment plan amendment approved by the September ordinance could be "lawfully adopted" in the future.

Craddick also agreed with Burg that Hercules did not substantiate its finding that the property is blighted, a necessary condition for eminent domain. Blight must be economic and physical under modern-day redevelopment laws, which have evolved since the original Dynamite Redevelopment Plan was adopted in 1983. The name is a reference to a dynamite plant that closed in the 1960s.

Cabral defended the city's invocation of eminent domain last year, because "if eminent domain is successful, it would bring the Wal-Mart application process to an end." He and others had predicted then that Wal-Mart would mount a court challenge.

Wal-Mart's plans to build a Hercules store has angered residents who said a big-box store catering to regional shoppers would clash with the city's pedestrian-friendly vision for the area. Dozens railed against Wal-Mart at several public meetings, saying the company underpays workers and destroys neighboring businesses.

Wal-Mart has claimed overwhelming community support in Hercules, but only a handful of people testified in its favor at the meetings, including some company employees who don't live in the city.

Wal-Mart's Northern California spokesman could not be reached. Calls to Wal-Mart corporate headquarters in Arkansas were not returned.

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