Debra J. Saunders

There are two ugly guys in the fight between the City of Hercules, Calif., and Wal-Mart. It's a classic tale of Big Government versus Big Box, and both sides are prepared to use big guns.

 In the last round, the City Council voted unanimously to use the awesome power of eminent domain to seize 17 acres owned by Wal-Mart. Wal-Mart vowed to use its awesome resources to fight back. As Hercules sees it, Wal-Mart is the rude guest that won't leave. Attorney Gale Connor, who represents the city, noted that Wal-Mart bought the property in 2004, despite considerable opposition to the retail giant's proposal. "Why did they go ahead and purchase the property to begin with?"

  This is a hot story, Connor understands, because of the "confluence of two very controversial subjects." The Bay Area has its share of Wal-Mart haters who see the chain as pure evil.

  I see using the power of eminent domain for private development as evil. In 2005, the U.S. Supreme Court ruled that municipal governments have the right to use eminent domain to seize property for "public use" -- even if that "public use" entails the government taking land from homeowners to give to a private developer. It was downright un-American for the Big Bench to determine that the city of New London, Conn., could evict homeowner Susette Kelo and her neighbors to make way for a tony private waterfront development.

  Wal-Mart is no Susette Kelo. Be it noted that Hercules is not evicting a homeowner or small business -- it is seizing an empty lot. In essence, the city is using eminent domain as a proxy for strict zoning rules.

  The big irony is, as Connor noted, "part of the reason eminent domain has such a bad name" is that "historically" big retailers -- including Wal-Mart -- have used it to take other people's land. Last month, the Orlando Sentinel reported, Wal-Mart threatened homeowners that if they didn't sell to the retail giant, it would ask local authorities to take the land by eminent domain.

 Wal-Mart spokesman John Simley acknowledged as much. "There's no question," he said on the phone Wednesday. "We've benefited from some degree from eminent domain decisions." Simley contends the difference is that Wal-Mart was able to use eminent domain to counter blight. Of course, blight is in the eye of the beholder. Citing blight, cities have used eminent domain to seize the homes of blue-collar owners to make way for upscale housing.

  Many Northern Californians consider a brand-spanking new Wal-Mart to be blight.

Debra J. Saunders

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