Sprawl-Busters reported on August 6, 2005 that Wal-Mart’s lawyers had blown a court appeal by sending their legal forms first-class mail, instead of certified mail. That must have made the retailer’s legal team feel like first-class screw-ups. But now city officials have changed their zoning code to make sure any future letters from Wal-Mart get marked, “return to sender.” According to the Mail Tribune newspaper, the city council ordered its planning staff last January to establish an 80,000 s.f. cap on the size of “large retail establishments.” The new ordinance places the cap within the city’s C4 and C5 zones, but has a big loophole that allows a developer to request a conditional use permit for larger projects. “Basically, our municipal code didn’t specify square-footage limitations before,” the city’s planner told the Mail Tribune. “As of now, C4 says shopping centers are permitted. But everyone was interpreting shopping centers differently.” A Wal-Mart spokesperson described the Central Point big-box ordinance as “disappointing” and noted that “big box ordinances are being challenged all over the country.” What she failed to point out is that courts are upholding such size caps because they are well within a city or town’s legitimate police powers to regulate scale in a zoning code. “It’s disappointing they would make such a move to restrict any type of business, whether it’s us or Best Buy or whoever,” the Wal-Mart spokesman said. “It’s a slippery slope when you start restricting what types of business can be built in your city. The next step is saying you can only have one McDonald’s or two Starbucks. Where does it stop?” In fact, a size cap does not restrict “types of buildings”, or size of buildings. Any company under the size cap can build in Central Point. Wal-Mart seems to have missed the central point of the Central Point argument: size matters. The City’s Planning Director said that city officials had “considered the consequences of our recommendations” and the proposals best define the city’s strategic planning goals. The City’s Administrator noted, “We’re not saying you can’t build, but we’re defining the size of the building. Given the size and power of certain retail corporations, I think we’ll be challenged, but I think we’re on solid ground with this.” The city’s Attorney in its fight with Wal-Mart, said the new rules would apply to Wal-Mart’s current plans for the supercenter in Central Point. Wal-Mart officials submitted a second application in March, and attempted to submit a third application in May, prior to a public hearing. But under another new code, approved earlier this year, a “pre-application conference” must be conducted prior to submitting a development application. The application was not accepted by city officials.
Wal-Mart likes to say that it wants to work with communities and be flexible, but when cities begin to adjust the zoning rules to changing realities, Wal-=Mart complains that the rules are unfair, and distorts what the lawa do. Size caps are mainstram zoning, part of local police powers, and not likely to be overturned by any court. Where Wal-Mart has attempted to challenge such ordinances, it has lost. The city has clearly expressed its desire to limit the size of big box stores, but Wal-Mart has chosen to ignore what the community wants, and instead of cooperating with local officials, engages in legal sabre-rattling. No wonder, then, that size caps are becoming the most popular single sentence solution to big box sprawl. For exanples of size caps, go to www.walmartwatch.com/battlemart, or search Newsflash by “caps.”