Passing Gas

Jackass-riding Alderman Tom Bauer and QuikTrip join forces to test the limits of eminent domain

Mar 24, 2004 at 4:00 am
The intersection of Manchester and McCausland, in the middle of the scruffy southwestern St. Louis enclave of Franz Park, will never be confused with the well-ordered civility of Maryland and Euclid, a postcard-perfect Central West End intersection that affords passersby the collective splendor of tony boutiques and sun-drenched cafés. With its utilitarian, drive-up businesses designed to attract an open-collared, clock-punching clientele, the Manchester-McCausland intersection is sufficiently alive but in disarray, giving passing motorists the impression that it has seen better days.

Four years ago, 24th Ward Alderman Tom Bauer saw to it that the intersection's northeast corner, extending eastward along Manchester from McCausland to Forest Avenue, be designated for blighting as part of the area's redevelopment plan. Bauer's little maneuver caught the attention -- and the ire -- of nearby 7-Eleven gas station and convenience store owner Randy Munton.

"I doubt that blight was set up for these situations," says Munton of the targeted block, which includes half a dozen businesses, including two used car lots, a heating business and a law firm. "It was set up for abandoned houses and crack houses."

Neighborhood business owners such as Dave Waters, who runs the BP station and adjacent auto-repair shop on the northwest corner of Manchester and McCausland, agree that the area could benefit from some land-use ingenuity, even if it takes a legislative kick in the pants from city government.

After spending 28 years in the same location, Waters has had few qualms about adapting his business to satisfy the wishes of Franz Park neighbors. Several years ago he agreed to close his station for a stretch each night when it became evident that round-the-clock business hours were causing area crime to spike.

"We had carjackings, stabbings, shootings -- you name it," recalls Waters, who notes that Munton's 7-Eleven down the road on McCausland benefits from the presence of an onsite police substation, a virtual necessity if one wants to remain open at all hours in certain parts of the city. "We shut our 24-hour business down four or five years ago."

By shortening business hours, notes neighborhood activist Carol Dotson, "crime has gone down to virtually nothing" in the neighborhood. There's a Phillips 66 located near the intersection's southwest corner and a Shell station sitting across the street from Munton's 7-Eleven a couple blocks down, rounding out the quartet of filling stations/snack shacks within a three-block radius.

All of this makes Bauer's proposed cure-all for the northeast corner of Manchester and McCausland -- a 24-hour QuikTrip gas station and convenience store -- a real head-scratcher. Massive, bright and modern, the proposed station raises the specter of putting one, if not two, of its smaller nearby competitors out of business, a seemingly self-defeating strategy when one's ultimate goal is to revitalize the corner.

The St. Louis Board of Aldermen on February 27 bolstered QuikTrip's development proposal by authorizing the use of eminent domain to acquire the necessary property should the small businesses slotted for demolition not agree to sell voluntarily.

But the scrappy small-business owners aren't rolling over just yet, despite what appears to be the threatening posture taken by QuikTrip's negotiators.

In its purest form, eminent domain grants the government absolute power to purchase land at a court-determined price for "public good." But it's supposed to be wielded only when a government authority wants to obtain and designate land for important public projects such as schools, parks and roads. Over the last 50 years, the provision has been successfully applied to slum clearance -- all of which has forged a slippery slope that now enables private or quasi-private developments such as sports arenas, shopping malls and big-box retailers to claim eminent domain.

"Unfortunately, it's something that's become commonplace -- not for public use, but for private development," says Scott Bullock, senior attorney for the Institute for Justice's Castle Coalition, a D.C.-based property-rights watchdog group. "Thankfully, that's not the rule yet, but it's something that happens with too much frequency. It's leading to a change in the law. Courts were once quite reluctant to strike down condemnations; now they're looking at these more carefully."

When asked if invoking eminent domain to install a 24-hour convenience store and gas station is especially peculiar, Bullock is quick to reply: "Absolutely. The language in the Constitution says 'public use.' Any business, to a certain extent, creates some benefit to the public. People shop there; it generates taxes. But that simply can't be the test. If that's the case, every home could be taken for a business. Virtually every business creates more taxes than a home does. So it's an incredibly dangerous precedent to use that as justification for eminent domain."

Alderman Bauer insists he's only trying to do what's best and defines the "public good" as two additional turn lanes QuikTrip has promised to pay for should the project succeed. He says adding the turn lanes will ease congestion at the intersection of Manchester and McCausland.

Neighborhood activist Dotson and others, however, have become increasingly suspicious. They believe the money for the road project will come out of the pockets of QuikTrip customers rather than the Tulsa, Oklahoma-based company's own coffers -- the fiscal fruits of a Transportation Development District loophole that provides for a project to be financed in part by hitting up consumers for an additional 1 percent sales tax on goods and services purchased at the designated business.

"For this particular project, we will be widening McCausland," says Bauer, an attorney and former member of the Missouri state legislature best known for riding his pet donkey around the neighborhood come campaign season. "That's the public good that comes out of this."

That may be a stretch, according to Bullock.

"If a government is claiming to use eminent domain for road-widening, but the real purpose is to benefit private parties, courts will look at that very skeptically," he explains. "It's called pre-textual takings -- when supposed public use is a pretext for the real motivation behind a taking [of land]."

Had the government's motivations for taking the land -- which would fall under the jurisdiction of the city's Land Clearance for Redevelopment Authority and then be transferred to QuikTrip -- been purely in the interest of the community, odds are some business owners would have had no problem voluntarily selling their properties for a fair price.

"I think it's ridiculous," says one local business owner who spoke on condition of anonymity. "I'd probably sell out to a development that is reasonable. But I probably will anyway, because they have eminent domain."

Since last fall, this business owner claims, QuikTrip contractor George Koob of Jeff Eisenberg Real Estate in Clayton has been in his face demanding that he sell -- or else.

"The man said if we can't negotiate a reasonable price, then they have the right to eminent domain anyway," says the business owner.

Jim Fozzy, who owns Perkins Heating, another of the half-dozen businesses in jeopardy of being bought out and razed if QuikTrip and Bauer get their way, insists he had the same experience with Koob.

"A guy came in and gave pretty much a bottom-of-the-line shithole deal for the property," says Fozzy. "Then my wife kept getting these calls saying, 'You have to sell, or we'll take it away from you with eminent domain.'"

QuikTrip and Koob declined comment for this story, but their alleged strong-arm tactics have irked even those who are not opposed to the project.

"People in this neighborhood don't scare very easily," says Franz Park Neighborhood Association President Richard Torack, a friend of Bauer's whose organization has maintained a neutral position on the proposal. "That would not be the approach I would have done."

"I would be willing to bet money that eminent domain will not be used in this instance," says 13th Ward Alderman Fred Wessels, chair of the board of aldermen's housing and urban development committee, which passed Bauer's eminent domain ordinance on a voice vote.

But, as D.C. attorney Bullock is quick to remind, it's the threat that counts.

"It's not illegal, but I think it's unconscionable," says Bullock of Koob and QuikTrip's evocation of eminent domain in their negotiations with property owners. "Property owners often feel like they have no choice [but to sell], because they feel like they're going to get taken advantage of if they fight. I liken it to somebody robbing you with a gun to your head. They often don't have to pull the trigger to get what they want."