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2010-01-22
Economy, PA. Eminent Domain Power Used To Build A Road For Wal-Mart

Very few people like the notion of eminent domain -- but when the government decides to 'take' private land -- they should have a really good reason to do it. Building a Wal-Mart supercenter is not one of those good reasons. In fact, no retail project should be accomplished through the forcible taking of land from a private landowner. But this is the scheme of officials in the borough of Economy, Pennsylvania. As of 2008, the population of Economy was just over 9,100 people -- about 400 fewer people than the community had in 1990. The borough's retail scene cannot be described as flourishing. On Route 65 in Economy is the Northern Lights Shopping Center, which the Pittsburgh Post-Gazette described as "moribund." The owner of the shopping center told the Gazette, "We are great at the hands-on stuff, turning properties around. This one has befuddled us." So local officials and a developer came up with a plan to take some of the Northern Lights property by eminent domain, build a road right through the center of the shopping plaza, which will lead to a huge Wal-Mart superstore. The shopping center landowner is positively thrilled. "We think it's going to open up the floodgates," the landowner said. "We believe it will increase significantly the integrity of our shopping center." Behind Northern Lights is a parcel of 225 acres that Wal-Mart wants. This has enthralled Economy officials, who have been told that a superstore will 'create' 440 job and lure shoppers from miles around. The idea of transferring sales from other communities to their own has apparently made Economy officials heady with power. The 225 acre parcel can't be used without creating access to it -- so eminent domain is the one vehicle the borough has to try to expand its tax base -- or so area officials believe. "We're thrilled to death," Economy Mayor Dave Poling told the newspaper. Wal-Mart would not comment on the possible store location, but Mayor Poling revealed that he had met with real estate brokers representing Wal-Mart as far back as March of 2006. At that time, Wal-Mart wanted a slot in the Northern Lights plaza itself. But another retailer, grocer Giant Eagle, had in its lease the right to be the only supermarket in Northern Lights. The Mayor explained that "there was no way around that lease." This lease assurance was the tool that was used to attract Giant Eagle as an anchor tenant, and such deals are commonplace when plaza owners are trying to attract important tenants. Wal-Mart in Northern Lights became a non-starter, but when the JC Penney store in Northern Lights went out of business, and was torn down, Wal-Mart's brokers noticed that there was a large piece of property behind the plaza. "They asked, 'Well, who owns that property up there?' " Mayor Poling said. To move the issue forward, Economy filed an eminent domain petition in 2007 to create a public right of way through the middle of the shopping center, in order to build a road that would link the land behind Northern Lights to Route 65. In November 2007, Economy filed a declaration of taking, seizing land through the middle of the shopping center. The borough said it needed the land to build a road that would stretch from Route 65 east to the undeveloped land up the hill from the shopping center. The land for the Wal-Mart site is owned by the estate of a deceased doctor named W. Irwin S. Boal. The land is under contract with East Coast Development Co. in Summerville, South Carolina. In 2008, Giant Eagle and Plaza Northern Limited Partnership, which owns the plaza, objected to the property taking. Plaza attorneys wrote in court documents that the plaza owners would be harmed by the condemnation. Giant Eagle attorneys argued that the borough improperly used eminent domain powers. The attorneys said there were other access points to the Boal property besides through the plaza. Giant Eagle said they hadn't been properly notified of the condemnation. A Judge in Beaver County disagreed, and the Commonwealth Court on appeal agreed with the lower court ruling. The Commonwealth Court ruling was appealed to the state Supreme Court. On December 29, 2009, the state's highest court refused to hear the appeal. Damages to be awarded to the plaza owners for the property taking are still undecided. Wal-Mart is now apparently ready to move forward with its plans, but the legal ramifications of this case may not be fully settled, and Giant Eagle has not commented on the announcement of Wal-Mart's latest plans.

What you can do: Area residents are familiar with Wal-Mart's unconventional building plans in Pennsylvania. In 2006, the giant retailer suffered a highly visible and embarrassing setback when a store it was working on in Kilbuck, Pennsylvania triggered an extensive landslide that disrupted highway traffic on the same Route 65, and railroad traffic for weeks, and forced the company to abandon the project after great expense in stabilizing the site. The Mayor of Economy claims that the slopes in Economy are nothing like Kilbuck, and that the borough's Wal-Mart project will not suffer the same misfortune. On June 12, 2008, Sprawl-Busters reported that residents in the nearby township of Moon, Pennsylvania were deadest against a Wal-Mart proposed for the former West Hills Shopping Center. That project has become mired in controversy, and a citizen's group called Moon First has retained its own land use attorney and is fighting the store through the courts. The project is Economy is just getting underway, and no approvals have been granted. The Northern Lights landowner is under the illusion that having a Wal-Mart store behind his mall will somehow benefit the tenants -- even though it obviously has upset one of the anchor stores, Giant Eagle. The landowner of North Lights says the mall will benefit because "You have to pass through it to get there." He says there will be a "universe of tenants that go with Wal-Mart" -- like restaurants, banks and specialty stores -- and he hopes he will gain some new tenants in his project -- which is already on the ropes. The road to Wal-Mart will take out about 10% of the Northern Lights parking spaces (162 spaces), but now that JC Penney's has been leveled, Northern Lights has plenty of spaces to spare. Even though Giant Eagle sued the borough over the eminent domain move, the landowner of Northern Lights believes that he knows the grocery business better than Giant Eagle does. He told the Post-Gazette, "Competition is what made this country great, and Giant Eagle is a great operator. They may have to do some new things, but I think they could do well, and I hope they will stay." And if Giant Eagle goes under, Northern Lights already knows how to tear down stores. Mayor Poling is staking his political future on the Northern Lights eminent domain project. First elected in 2006, Poling vowed in 2006 to create economic development to offset local taxes for all residents in Economy Borough. His website says, "Since Mayor Poling's election he has worked diligently with developers on a 60 million dollar project at the Northern Lights area bringing close to 500 new jobs in planned, ongoing development. After three years of negotiations Mayor Poling is anticipating a official announcement of the project in the very near future." Mayor Poling describes himself as "The People's Mayor," and says he is a conservative Democrat "committed to the fundamental values of fiscal responsibility, personal accountability, integrity, and a strong work ethic." Readers are urged to call Mayor David Poling at 724-869-4779 after work hours and leave the following message on his phone: "Dear Mayor Poling, The borough should be ashamed to use eminent domain power to help the richest retail corporation in America. Wal-Mart can afford to build its own projects with its own money, without using public resources to buy land and pave a road to their door. This is not a jobs and taxes project. Did you ever wonder why JC Penney's had to be leveled? Are you willing to pay for Giant Eagle to be torn down? You have inserted yourself into the private market to the benefit of one retailer -- and all you are doing is creating more sprawl in an area that is losing population and has a weak mall already. No public money should be used to acquire this land or improvement. No welfare for Wal-Mart!"










 
 
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