Thursday, June 14, 2012

Wal-Mart and Straban Overreaching Again


Recently, the developer for the new shopping center to be constructed on the northwest corner of the US 30/15 interchange requested that Straban Township exercise the use of eminent domain in order to finalize some land and/or right-of-way acquisitions within the scope of the project. 

While we are in favor of the project, as it has been presented so far, we firmly believe that both Wal-Mart and Straban would be misusing eminent domain in this case. 

First, let us read the Fifth Amendment to the Constitution of the United States:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fifth Amendment, part of the Bill of Rights written by James Madison and adopted in 1791, shortly after the Constitution was ratified, is a sweeping piece of law.  It says that in serious crimes, meaning crimes rising to the level of felonies, you cannot be held without being charged formally in court, nor can you be tried twice for the same crime, nor can you be forced to testify against yourself.  It also says you cannot forfeit your property without due process of law.  Finally, it says that you cannot have your land seized by the Government for public use without a fair price being paid for it.

“No person shall”…[have] “private property”…[]…”taken for public use, without just compensation.”

This Amendment guarantees protection against an over-reaching government, at any level. 
[Note] “James Madison…had a more moderate view [than Jefferson], and struck a compromise that sought to at least protect property rights somewhat by explicitly mandating compensation and using the term "public use" rather than "public purpose", "public interest", or "public benefit".”--[Wikipedia entry on eminent domain, sourced from Bruce L. Benson, The Independent Review, v. XII, n. 3, Winter 2008, ISSN 1086–1653, Copyright © 2008, pp. 423–432.]
Clearly, Madison saw a difference.  The implication is that eminent domain may be used by Government to acquire land for public use, meaning for the public to use, not for other purposes.  The intent was for building roads, public [government] buildings, bridges, and such. 

Madison’s intent, which was clear to those who ratified the Bill of Rights, did not include taking property for commercial purposes.  Indeed, Straban exercised eminent domain several years ago when taking a strip of land from a local property owner when it wanted to widen the intersection at York Street and Granite Station Road.  The argument there was that the homeowner would have to relocate his septic system at some great expense, and Straban was unwilling to pay for the land AND the inconvenience to the homeowner.  While the township had the right to do this since it was for ‘public use’, it was wrong in not compensating the homeowner enough for the additional expense involved.

Here, we have the giant corporation with the third highest revenues in the world, Wal-Mart, refusing to pay the asking price of the landowners involved in the construction of the infrastructure [roadwork – including changes to the on/off ramps between US 30 and US 15, traffic signals, electrical lines, gas, water, and sewer lines]. 

In other words, this is being done so that Wal-Mart, and the developer, and the other retailers and real estate management companies involved, can build their money-making shopping center at a reduced price.  

The difference is that in the first case, only the taxpayers/public benefit from the taking, but in this case, while the taxpayers/public would benefit, they would only do so if the major benefactor, the retailers, did not build here.  Ergo, since there is no need to take the land unless the project is constructed, it is done solely for the benefit of the developer,Wal-Mart, the other retailers and the investors.

Otherwise, the work would not be done, or not be done as extensively as Wal-Mart requires.  Indeed, much of that section of Shealer Road, which crosses York Street just west of the US 15/30 interchange, was rebuilt recently at taxpayer expense. 

God forbid that Wal-Mart slip to fourth place!

[Now they want to rewrite the tax load on the project so they can better afford it!  Boggle!] 

Imagine that you want to build a house on a small lot, but in order to put a driveway in, you need to have a small slice of your neighbor’s land.  Under the interpretation that Straban is using, you, a member of the ‘public’ can ask the township to take the land by eminent domain for you, getting it at a reduced price from what the neighbor wanted.  That is "public purpose", "public interest", or "public benefit".  Not what Madison [or the Framers, or the country that ratified the Bill of Rights] intended.

Here we get into a short discussion if what ‘just compensation’ is.  Just compensation is a fair price for what you wish to sell or buy.  Compensation could mean trading one small strip of land for another.  But 99% of the time it means cash value.  If you want to sell your home, you set an asking price.  If it is close to the market value of the property you will likely get a buyer to pay that price or something around that price.  If it is too high, you will not sell your property.  If it is too low, you will sell the home fast, but you will not get what you think is the true value. 

But if someone comes to you and asks to buy your home when you are not prepared to sell it, then the value goes up, and it goes up to a point where both the buyer and seller agree is worth it to each.  If you are the buyer looking at a property worth $200,000 if it were on the market, you would likely approach the owner with an offer significantly higher than that to make it worthwhile for the owner to uproot himself and his family from the property.  If it is a property that has been handed down over succeeding generations, the value to the owner will be much higher. 

Where eminent domain comes in to play in just compensation is to fix a price the owner is unwilling to accept because the government has made a decision that there is a limit to the value of the property.  The government does not care about generational farms, or even the fact that you will be inconvenienced by the sale, and maybe forced to move. 

Well, perhaps the government should care.  The word ‘just’ should cover that caring. 

If the government comes to me and tells me I have to move because in three years an 8-lane Interstate Highway will cover the ground I live on, I will expect a higher than market price from the government because of the fact I must move [which is expensive], and buy another home to live in [which may or may not be more expensive but likely will be more so]. 

If John Smith knocks on my door one night and says, “I’d like to buy your house and property”, and I have not thought about it all, but considered leaving it to my children, then I would have a realtor suggest a market price and I would really look for an increase over that price, perhaps as much as 40% higher.  If it is important to Mr. Smith, he will pay the price.  Fair is fair.  Just is just. 

Local governments, like Straban and Cumberland Townships, that play the “development shuffle pyramid scheme” game, exercise eminent domain to ease the path of developers so they can generate more taxes down the road.  But let’s look at this for a moment…who pays for the property acquired by eminent domain?  Well, if it is part of the development land, then the developer must re-pay the township.  If it is part of the infrastructure, as listed above, then the taxpayers pay the price. 

But wait!  There’s more!  Who pays for the process of exercising eminent domain?  Legal costs, filing fees, and the like can go pretty high, especially if the property owner does not agree to the price offered and the fight goes to court.  And once again, the taxpayers pay the price. 

In this case, the world’s third highest revenue earning corporation is refusing to pay to inconvenience a landowner so it can go in and in one year make a profit on that store that is a hundred times or more than the difference in price between what the owner wanted and the price set by the township under eminent domain.  And you are paying taxes to do this.   

So, Straban township is robbing Peter [the landowner], to pay Paul [Wal-Mart, developers, other stores, and investors], and billing you for the tools used in the robbery! 

If that is not over-reaching government, what is?  James Madison is spinning in his grave. 
"We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."
We look at the words, “… governments are instituted among men, deriving their just powers from the consent of the governed…” and we are struck by that word again: “just”. 

Webster’s Unabridged Dictionary defines ‘just’ as [F. juste, L. justus, fr. jus right, law, justice; orig., that which is fitting; akin to Skr. yu to join. Cf. Injury, Judge, Jury, Giusto.]
1.             Conforming or conformable to rectitude or justice; not doing wrong to any; violating no right or obligation; upright; righteous; honest; true; -- said both of persons and things.
2.             Not transgressing the requirement of truth and propriety; conformed to the truth of things, to reason, or to a proper standard; exact; normal; reasonable; regular;
3.              Rendering or disposed to render to each one his due; equitable; fair; impartial.

It is a word that goes deep into English language’s Proto-Indo-European roots.  It has likely been a word to describe a sense of rightness, and fairness about a matter, or person, or event almost as long as the word has existed.  Look at the definitions above: not doing wrong to any; upright; righteous; honest; true; reasonable; to each one his due; equitable; fair; impartial. 

Ask yourself, “How does what Straban Township, Wal-Mart, the Developer and the other investors and retailers are doing fit the word “just?”  Everything about the definition says it is a two way street, not tilted in favor of the government or those the government is representing [which begs another question…why is Straban going to represent the developer and Wal-Mart, and NOT its constituency?  This is clearly a conflict of interest, if not misplaced interest to start with!]

Here we have a clear conflict between the interpretation of the Fifth Amendment of the Constitution and the founding document of our Nation, the Declaration of Independence, which lays out the specific causes that compelled the Founders to rebel against the King’s government, and what defines a just and free society: “…unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;…”. 

Unalienable rights cannot be taken away or abridged by any person or government.  ‘The Pursuit of Happiness’ is generally taken to mean the ownership of property.  “…to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;…” means just what it says, that government power is given by the people, and it must be ‘just’ and ‘fair’, honest’, and ‘equitable’, and ‘righteous.’

Tell Straban Township to abstain from eminent domain.  And tell the Wal-Mart developer to stop whining and pay the price.  Whining really does not sit well, particularly when done on behalf of the world's third largest company!  They complain about the necessary changes the township requires, and they complain about the tax burden for infrastructure which they claim will benefit everyone.  They forget it will benefit their clients, Wal-Mart and the other retailers the most, and would not be required if their project did not exist. 

So tell Straban to tell the developer to shut up, stop whining, pay the owners what they want, and pay the taxes on time.  It’s all part of the risk of doing business, and that is the investors’ risk, not the township’s and not the residents’ risk. 

And if Straban doesn’t listen, “…that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

That would happen in November.  


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