Does a local community have the right to limit the presence of big box superstores? A judge in Pennsylvania — a state not known for strong local control over zoning matters — ruled recently that the township of Lower Gwynedd has the right to limit big box stores. Commonwealth Court Judge Bonnie Leadbetter wrote that while a town must “provide for all reasonable uses, it is not required to zone for every business model.” A developer from Jenkintown, PA had sued the town, arguing that Lower Gwynedd’s zoning excluded large commercial enterprises such as department stores and big box retailers, like Wal-Mart and Home Depot. The developer tried to force the town to change its ordinance back in 1993 by filing what is known as a “curative amendment” — a legal challenge to the local zoning code. According to the Philadelphia Inquirer, the developer was trying to build a 352,000 s.f. shopping plaza plus a mobile home park on 68 acres of open, wooded land that was zoned for single family residential. In 1997, the town ruled against the plan. The developer sued in Montgomery County court — and won. But the case then was appealed by the town to state court, where the judge in late August overturned the lower court, saying that the court “improperly substituted its judgment” for that of town officials. Lower Gwynedd Town Supervisor Kate Harper said the court’s ruling demonstrated that “big box retail does not get special treatment.” In the decision, Judge Leadbetter said that it was the range of businesses allowed by a zoning ordinance, not the size of them, that determines whether a zoning law is exclusionary. She wrote: “Home Depot, for example, may not find it profitable to open a hardware store in less than 50,000 square feet, but there was no evidence presented that a small hardware store could not have been constructed.” Durng the court hearings, town officials indicated that they were trying to keep retail zoning in the center of their picturesque town in line with their comprehensive plan. They argued that a huge shopping plaza located next to a cluster of $400,000 homes was not a compatible land use.
Many communities are enacting “dimensional limits” in their zoning code. For examples of such communities, contact [email protected]. It is important that when such limits are passed, that the city or town explain the intent of the by-law in terms of its land use goals: such as maintaining the scale of the existing built environment, or preventing undue traffic congestion, or maintaining a small, village character of a town, etc. In some state zoning codes, local communities are given the right to regulate the size, scale, location and use of property. Dimensional limits, such a caps on the size of buildings, are a legal exercise of a community’s local police powers under their zoning code.
