Big box stores can be stopped with one little sentence. A growing number of communities are amending their zoning code to keep out very large stores. The most recent case comes this week from San Diego, California, where the city council took the first major step towards imposing a size cap when it voted 5-3 on November 28th to ban retail stores of more than 90,000 s.f. that use 10% of interior space to sell groceries or other merchandise that is not subject to sales tax. This ordinance is modeled on similar ordinances in California, most notably Turlock, where Wal-Mart has failed repeatedly to challenge the law in the courts. The Mayor of San Diego told reporters he will veto the new cap if it goes through its required second vote in January, but if the Council holds its 5 votes, it has sufficient support to override the Mayor’s veto. A spokesman for the Mayor told the Associated Press, “What the Council did tonight was social engineering, not good public policy.” One city councilor told the AP, “Quite simply, I do not think it is the role of the San Diego City Council to dictate where families should buy their groceries.” But Councilman Tony Young, who voted for the cap, said, “I have a vision for San Diego and that vision is about walkable, livable communities, not big, mega-structures that inhibit people’s lives.” Wal-Mart has several options at this point: 1) they are likely to lobby hard the 5 Council members who voted for this plan, because if they can whittle the vote down to 4 or less, they might have a chance to block the Council from overriding the Mayor’s eventual veto. 2) they can begin in January collecting signatures to put the question on the city ballot for voters to decide, and then spend a fortune in corporate funding to steer voters against the ban. 3) they could take legal action, but this option went nowhere in Turlock. “Certainly we’re disappointed but there’s still a number of steps left in this process,” a Wal-Mart spokesman said. “We need to look at what our options are.” The Turlock ordinance prohibits big-box stores over 100,000 s.f. that devote at least 5% of their selling space to groceries. Wal-Mart dropped its legal challenge to the Turlock ordinance, after a federal judge in Fresno said Turlock’s zoning law did not infringe on the company’s constitutional rights. The California Supreme Court refused to hear the case, so all state and federal legal action by Wal-Mart went nowhere. San Diego, which has more than a million people, already has four Wal-Mart stores within its boundaries, but the retailer wants to convert them into larger supertores.
Wal-Mart will try to stop the second vote on this measure by putting political pressure on the 5 council members who voted for the ban. The supporters of the ban will have to work hard to secure this block of votes. If the second vote passes, the Mayor vetoes it, and the 5 votes remain to override, then Wal-Mart will begin a voter campaign to overturn the vote. They did this in Contra Costa, California, and they are doing the same thing currently in Long Beach, California. These ordinances are legal, so Wal-Mart has to go the referendum route. The argument that this ordinance “dictates where people should buy their groceries” is without substance. The proposed ban in San Diego only limits size of store. Wal-Mart could build an 89,000 s.f. supercenter in San Diego — a size larger than most existing grocery stores. The giant retailer already has a 99,000 s.f. superstore called the “Urban 99” model for just this kind of urban area. Shoppers in San Diego can have their supercenter, but only if Wal-Mart abandons its one-size-fits-all mentality of building stores in the 200,000 s.f. range. No one in San Diego is being told where to shop. Cities and towns have the right to limit the size and scale of buildings to achieve a public purpose, and meet the health, safety and welfare of its residents. More towns are taking this route as they become aware of this simple option for managing growth. An even simpler ordinance, which just limits size, is growing in popularity, and also stops stores like Home Depot and Lowe’s. For earlier stories, search Newsflash by “caps.”
