It took Wal-Mart just under a month to sue the city of Turlock, California, which has become the latest target of the giant retailer’s legal department. The lawsuit by Wal-Mart was in response to a new Turlock city ordinance, approved unanimously by the City Council on January 13, 2004. The new ordinance bans new or expanding discount stores that exceed 100,000 square feet and which devote at least 5% of the space to groceries and other nontaxable goods. The ordinance had the effect of preventing Wal-Mart from constructing a 225,000 s.f. superstore in Turlock, which would have led to the closure of the existing Wal-Mart in the city that was built just 11 years ago. The city said the ordinance would help reduce traffic congestion, and would lead to commercial blight as other stores in the city went under. Wal-Mart actually filed two separate lawsuits against the city. “They cannot discriminate against Wal-Mart as opposed to other businesses in the area,” Wal-Mart’s attorney told the Modesto Bee.”Certainly, our belief is that Wal-Mart was the subject of the ordinance.” But Turlock Mayor Curt Andre said the city will “vigorously defend” the challenge by Wal-Mart. “The overwhelming majority of people that have talked to me have been fervent in their desire to keep any kind of superstore out of Turlock,” he said. The first lawsuit, filed in U.S. District Court, alleges that the new ordinance interferes with Wal-Mart Stores Inc.’s constitutional rights to conduct interstate commerce and to equal protection under the law. The second lawsuit, filed in county court, charges that the City Council violated California law by using zoning to regulate competition. The Wal-Mart lawsuit also claims the city did not follow the proper procedures in the state’s Environmental Quality Review Act. “Targeting Wal-Mart with irrational restrictions is not a legitimate function of city government,” company spokesman Peter Kanelos told the newspaper. The Turlock lawsuit follows on the heels of similar litigation filed in January against Alameda County for a nearly identical ordinance there. In other California communities, like Contra Costa County, Wal-Mart is going to the ballot instead of court. Wal-Mart placed itself on a March 2 ballot measure to overturn a Contra Costa ordinance similar to the Alameda County and Turlock ordinances. The Turlock City Council recently allowed a Costco warehouse club to get a building permit, arguing the traffic at a Costco is differen than Wal-Mart, because warehouse club members bulk up more on goods, and shop less often than Wal-Mart shoppers.
The Turlock City Council should return to chambers and amend the zoning ordinance they passed in January. They should amend the language to limit the size of retail buildings at 100,000s.f. Period. This would impact the traffic issue better than their current ordinance, and protect them from a lawsuit by Wal-Mart over “irrational” language that singles them out. A size cap on stores applies across the board to all retailers — Costco, Home Depot, Wal-Mart. It is fair, it is uniform, and it is legal. The Alameda, Contra Costa and Turlock ordinances could be easily amended to apply uniformly. Cities and towns have the right to define the size, location and use of land in their communities.Wal-Mart is not suing towns that have a size cap. The company has the choice of either meeting the size cap, or locating elsewhere. A cap that limits the size can also limit the size of the first floor of the footprint, to further discourage a type of “big box” development that is undesirable in most communities, and leads to traffic congestion and retail blight. It would also end the Wal-Mart lawsuits.
