| Written byStacy Mitchell|0 Comments| Updated onMar28, 2007The content that follows was originally published on the Institute for Local Self-Reliance website at https://ilsr.org/where-to-start-how-to-stop-a-big-box/
There are many reasons why communities seek to stop a big-box proposal — the effect on local economic development and small businesses, traffic congestion, environmental issues, community impacts, low-paying jobs. Whatever your concerns, however, the main way most communities succeed in preventing the development of a big-box store is through the local land use system.
Don’t worry if you know nothing about land use policy. Most citizens who succeed in stopping a big-box development started out with very little knowledge of or experience with planning and zoning. This guide and the other resources in the Big-Box Tool Kit will explain not only how to navigate your local land use policies, but also how to organize a citizen-based campaign to stop a big-box proposal and to make permanent changes to your local policies to put citizens in control of how the community grows and develops.
Citizens groups often succeed in blocking big-box proposals. According to a recent study published in the American Journal of Sociology, between 1998 and 2005, citizens organized to block Walmart proposals in 563 locations. In 366 of those sites, Walmart was either defeated or withdrew its proposal.
Your first task is to determine the status of the big-box proposal and what is required under your city’s comprehensive plan and zoning code for the development to proceed. You should determine what steps the developer will have to go through, what permits and reviews will be necessary, which government bodies will be making the decisions (e.g., planning board, board of zoning appeals, city council), and what the timeline is for those decisions.
Basics of Land Use Policy
In most communities, development is governed by two interrelated polices: the comprehensive plan and the zoning code.
The comprehensive plan outlines the community’s goals and policies with regard to land use and development. It provides city officials with guidance for making decisions about development projects and serves as the basis for the city’s zoning code.
The zoning code implements the comprehensive plan through specific regulations. It stipulates what types of uses (residential, office, industrial, etc.) are allowed in each area of town. It also regulates the scale and character of development through rules governing the height and size of buildings, densities (e.g., number of dwellings per acre), lot sizes, parking requirements, the ratio of landscaping to pavement, and so forth.
The two primary purposes of zoning are to prevent landowners from using their properties in ways that harm the community and to ensure a balanced and efficient pattern of land use that avoids the many public costs and harms of haphazard development.
Cities (and, in some cases, counties and regions) derive their planning and zoning authority from state law. Some states require cities to have comprehensive plans and zoning codes; some do not. States may also impose certain rules on how cities implement and exercise their zoning authority.
The Development Approval Process
Depending on the rules set forth in the zoning code, a developer may need any number of approvals and permits from the city in order to build. In some cases, a big-box project may also require permits from one or more state or federal agencies (if, for example, it adds traffic to a state road or involves wetlands or impaired waterways).
Each of these points in the process – each review, each permit – offers an opportunity for decision-makers to reject the development. Your task is to identify each of these opportunities (see “Questions to Ask” below) and then to persuade officials to say no.
Your city planner or other local official should be able to meet with you to explain what will be required under your zoning code. However, we encourage you not to rely solely on information provided by a local official, who may have unintentional biases or flawed interpretations of land use law. We strongly advise that you read and study the relevant sections of your comprehensive plan and zoning code yourself, that you consult with experts, and that you hire a land use attorney.
Having an attorney on your side will not only help you use your city’s land use policies to stop the project, but it sends a signal to city officials that you are serious and that they may face a lawsuit should they approve a big-box store that harms public welfare or violates the comprehensive plan. Although raising money to hire an attorney may seem daunting at first, keep in mind that asking for donations is part of building a grassroots coalition (more on this below). Many people and local businesses will want to donate and an attorney is one of the best uses of these funds. Not just any attorney will do. You’ll need to find one who specializes in land use and who ideally has experience with controversial retail projects.
Questions to Ask
Here are some key questions to ask as you assess the status of the proposal and your community’s requirements:
Has the developer formally approached the city? In most cases, once a developer has submitted an application or other formal proposal to the city, then the project is subject only to the rules already contained in the zoning code. If the developer has not yet submitted an application, then you still have time to revise and strengthen your land use policies. It’s always best to get out in front of these proposals. One course of action would be to push the city to enact a development moratorium. This would suspend retail development for several months, giving the city time to study the potential impact of additional big-box stores and to adopt a store size cap, economic impact review requirement, or other measures to protect the community. Alternately, you might skip the moratorium and move quickly to enact a size cap or other ordinance to prevent or control big-box development. When citizens in Damariscotta, Maine, heard a rumor that Wal-Mart was eying a piece of property on the outskirts of town, they immediately gathered signatures for a voter referendum to ban large superstores, which ultimately passed. Had they not done this, the proposal would have been subject only to the town’s weak site plan review process.
Does the project conform to your city’s comprehensive plan? You should carefully review your city’s comprehensive plan and highlight any aspects of the plan the proposed big-box store would violate or conflict with. The plan may state, for example, that it is the city’s intention to maintain the downtown as the center of commercial activity, ensure new development is compatible with its surroundings, or minimize automobile use. In the past, comprehensive plans were treated merely as advisory documents. But many states have passed laws that give these plans greater legal weight and require that local officials use them as a basis for deciding whether to approve development. In most states, the failure of a development proposal to fit the comprehensive plan obligates, or at least provides a legal basis, for the city to reject the project. In some states, comprehensive plans have now attained a status akin to a local constitution: decisions that do not conform to the goals contained in the plan can be overturned by the courts. Your land use attorney can tell you how seriously your state treats comprehensive plans (or, depending on the state, we may be able to provide basic advice).
Will the developer need the city to rezone the land? If the land is zoned for something other than retail (e.g., residential or office), then the developer must petition the city to rezone the parcel, a process that usually involves a public hearing and a vote by the planning board and/or city council. Your task will be to build a case that rezoning the site to allow the development would negatively affect the community and/or be at odds with the city’s comprehensive plan. Remember that city officials are under no obligation to change established zoning policies to accommodate a developer. Indeed, doing so may be considered arbitrary “spot zoning” – the rezoning of a single parcel to benefit a property owner rather than carry out an objective of the comprehensive plan – which courts have deemed illegal.
Will the developer need a special use (or conditional use) permit? Zoning rules for the site may define retail as a “special use,” meaning that it is not normally allowed but can be under special circumstances. To proceed with a big-box project, the developer must apply for a special use permit, which usually involves a public hearing and a vote by the planning board, city council, or other government body. Officials may grant the permit only after concluding that the development will not harm the community, is consistent with the city’s general land use policies for that area, and meets specific conditions described in the zoning code. Your task will be to assemble evidence that the proposal does not meet these criteria and that the special use permit should therefore not be granted.
Will the developer need a variance? A variance is an exception to a zoning rule that may be granted by city officials. Due to the constraints of a particular property, a developer may request a variance from having to, for example, create a certain number of parking spaces or set the building back so many feet from the road. Variances may be granted only if the city determines that conditions particular to that parcel (topography, soil problems, etc.) make it impossible to comply with the rule, that allowing the exception will not harm the community, and that it will not result in the grant of a special privilege to a particular property owner. The zoning code may contain additional criteria for granting variances.
In general, the legal basis for allowing variances is to prevent a situation in which strictly applying a particular zoning rule would deny a property owner all reasonable use of the property. Big-box stores are never the only reasonable use of property in a commercial zone and therefore variances requested by big-box developers should be presumed to be unwarranted exceptions to rules that all other property owners must follow.
Will the developer need the city to annex the land? If the proposed big-box store is situated just beyond a town’s borders, the developer may need the town to annex the land and run water and sewer lines out to the site. The conditions under which a town may annex land are stipulated by state law, but local elected officials often fail to heed these requirements. You should determine what state law mandates and insist that the city comply. Minnesota law, for example, allows cities to annex land only after conducting an “analysis of the fiscal impact on the annexing municipality, the subject area, and adjacent units of local government, including net tax capacity and the present bonded indebtedness. . .” Such an analysis may reveal, as some studies have, that the stores will cost the municipality more in infrastructure and services than they generate in tax revenue – a compelling reason for officials to deny the annexation and prevent the development.
Will the development be required to undergo a traffic impact study? Many big-box projects have been rejected because of their impact on traffic. A single big-box store can generate more than 10,000 car trips a day (see our fact sheets), subjecting residents to traffic congestion, safety hazards, and high tax costs for road maintenance and police services. Many communities require developers to submit a professional traffic analysis of the impact their projects will have on road capacity and level-of-service. Ideally you should hire your own traffic engineer to review the developer’s traffic study.
Will the development be required to undergo an economic impact study? Your city’s zoning code may mandate that a proposed big-box store undergo an economic or fiscal (i.e., tax) impact analysis – or your city council may be able to require one on a case-by-case basis. A thorough study should reveal many of the hidden costs of a proposed big-box store in terms of job losses, local business closures and vacancies, and the impact on public services – giving city officials cause to reject the development. You should insist that the study be conducted by a qualified independent consultant selected by the city, not the developer. (See our recommendations.) You should review the study to ensure that its data and methods are sound. Contact us for help.
Will the project be required to undergo an environmental impact review? In some states, including California and New York, major development projects must submit to an environmental impact study. If the findings indicate that the development will have significant environmental impacts, officials may reject the project or demand substantial changes to it. The range of impacts evaluated varies, but are fairly broad in some states. California courts, for example, have ruled that urban blight is an environmental impact and therefore cities must evaluate the potential of a big-box store “to indirectly cause urban/suburban decay by precipitating a downward spiral of store closures and long-term vacancies in existing shopping centers.”
Will the development be required to undergo site plan review? Even when the land is zoned for commercial retail and no special use permit is required, most big-box projects still need to undergo “site plan review” to ensure that the development meets land use, transportation, environmental, and public safety standards. Your city’s zoning code will indicate whether the review will be carried out by city staff or by the planning board or other body, and whether there will be a public hearing and opportunity for citizen input. Site plan review standards vary in their strength and scope, but they may provide the city with the power to demand substantial changes to the project or to reject it altogether.
Will the project need a permit from a state or federal agency? In some cases, a big-box store must obtain a permit from one or more state or federal agencies. If it is situated on a state highway, for example, it will likely need approval from the state’s department of transportation. If it involves sensitive habitat or other important environmental assets, it may need to be reviewed by the state’s department of environmental protection. If the developer intends to fill wetlands, then he or she may need a permit from the U.S. Army Corps of Engineers. Often these agencies will do no more than require changes to the project to mitigate the worst effects on traffic or the environment, but in some cases they have concluded that the impacts are severe enough to reject the development.
STEP TWO: Persuade Decision-Makers to Say No
After you have mapped out the process that the proposal must go through – what approvals will be needed, who will make those decisions, and when they will be made – the next step is to persuade decision-makers to deny one or more of those necessary permits or approvals.
In order to vote against a big-box proposal, local officials need to know:
how the store would harm the community, economy, and/or environment (and thereby violate the goals and policies contained in your comprehensive plan and zoning code); and
that many people in the community support a “no” vote.
The best way to accomplish this is through a grassroots campaign that gets the message out about the hidden costs of big-box stores and makes citizen opposition to the store highly visible.
You need a core group of people to lead the campaign and a larger group of volunteers to carry out discreet tasks, such as writing letters to the editor or distributing lawn signs. Ideally the group should include a broad cross-section of the community: business owners, labor union members, religious leaders, environmental activists, and lots of ordinary citizens.
Many people in the community undoubtedly share your concerns about the proposed store. Here are a few ideas for finding them and getting them involved:
Use the grapevine. Talk to people you know and ask them to spread the word.
Hold a community meeting. Post notices around town inviting anyone concerned about the proposed store to attend and ask local newspapers to list the meeting.
Reach out to local organizations, such as environmental or neighborhood groups, or churches. Ask if you could have a few minutes to talk about the big-box proposal at their next meeting.
Meet with business owners who are likely to be affected by the superstore. This is a broader list of businesses than you might think at first. Home Depot, for example, will impact not only hardware stores and lumber dealers, but also appliance stores, remodeling contractors (the chain has its own installers for windows, flooring, etc.), banks (the chain finances construction loans), and many others. Ask business owners to become involved in the campaign, talk to their employees about the proposed big-box, and contribute money.
Develop a Campaign Plan
Start by naming your group. A good name should be positive and evoke the community controlling its own future, such as “Our Town Damariscotta” or “Gresham First.”
Map out a plan and a basic campaign schedule.
Set up committees to carry out various tasks, such as letters to the editor, fundraising, developing campaign materials, research, press releases/media, and so on.
Find experts, such as a traffic engineer, and especially a land use attorney.
Make the Case
Develop a list of the negative effects the proposed project will have on your community and repeat these concerns at every opportunity: public hearings, in your campaign materials, letters to the editor, and so on.
You’ll want to emphasize those issues that are likely to have the most influence on decision-makers. For example, if your zoning code says that businesses in that part of town should serve the needs of the local neighborhood, then talk about how the proposed supercenter is designed to serve a much larger region, pulling traffic from a wide radius. If rising property tax bills are a big issue in your town, talk about the added cost of providing road maintenance and police services for the store.
Take advantage of every opportunity to get your message out: lawn signs, posters in storefronts, tee-shirts/buttons/hats, letters to the editor (the most-read section of the newspaper), tabling at events, flyers, direct mail, radio advertisements, guest speakers, a web site, and so on. Get in the news often; get your group quoted in every article about the proposed development.
Make sure that decision-makers hear from lots of people. Set up one-on-one meetings with members of the planning board and/or city council, and ask people to call or write them. Turn out as many people as you can to public hearings on the project, preferably all wearing stickers or another item that identifies them as opponents of the project.
Your message will be especially powerful if decision-makers hear it from a broad range of people. Don’t let supporters of the big-box peg you as nothing more than a narrow special interest (e.g., just a bunch of small business owners out to protect their profits or labor unions angry with Wal-Mart). To avoid this, make sure a diversity of people representing different parts of the community are visible in the campaign.
Ease Concerns about a Lawsuit
Cities are understandably nervous about being sued by a big-box retailer or developer if they turn down a project. But, while developers may threaten legal action, they are less likely to take it because such lawsuits usually fail. On land use matters, the courts generally defer to city officials, presuming their decisions are legal if they followed reasonable logic and the process was fair. Decisions to reject big-box development should pass legal muster if local officials make findings stating how the store would harm the community and reference language from the comprehensive plan and/or zoning code.
What to do with a Bad Decision
If the project is approved, you still have options:
Appeal. Local zoning regulations may provide a mechanism for appealing a decision on a big-box project. A decision by the planning board, for example, might be appealed to the city council. You can also appeal the decision through the courts. In both cases, the key to winning is demonstrating that the decision-making body did not adhere to the policies set forth in your comprehensive plan and zoning code.
Initiate a referendum. In some places, you can gather signatures for a ballot referendum that would allow voters to overturn the decision.
STEP THREE: Don’t Stop!
Whether you win or lose, don’t disband your group and lose all of your momentum once the fight is over. Working to stop a bad development should be the first phase of a larger campaign to change your community’s approach to land use policy and economic development.
One thing is certain: win or lose, the big boxes will be back. More proposals are undoubtedly just around the corner. You can save yourself from having to take them on one at a time by changing your community’s land use and development policies. Please visit our Rules section to see model policies.
Keeping out what you don’t want is half the battle. Growing the kind of economy you do want is the other half. People are much more vulnerable to the lure of big-box retail if their local economies fail to provide sufficient shopping options and jobs. Communities need to develop a concrete plan for rebuilding their local economies. ILSR has written about many innovative approaches, which you can find in our Independent Business initiative.