Defending Your Community Against Big Box Retail

The big boxes are coming. Wal-Mart is setting a pace for one new store a day and Target, Lowe’s, Home Depot aren’t sitting still either. In addition, the drugstore chains have embarked on a massive building campaign to establish themselves for the glut of baby boomers that will soon be entering their prime prescription purchasing years.

If your community does not wish to deal with the multitude of issues that come with having big box retail, then the time to act is right now. Although the big box retailers may come knocking on your door with hordes of lawyers and a ton of money to scare off any opposition, proactive communities can win the battle and preserve their communities. The first step in successfully fighting any battle is the preparation. Get your zoning ordinance in order. Below are items that you will want to seriously consider:

Institute Effective Size Restrictions

Limit the maximum building size. Do it today! Communities across the country have restricted the maximum building size in a range from 35,000 sq. ft. to 90,000 sq. ft., depending on what they are trying to accomplish.

Restrict the maximum impervious surface. No more than 50%, and preferably less, of the site should be allowed to be impervious. This will help prevent the site from appearing to be a sea of asphalt and by limiting the impervious surface, a community also has the opportunity to more adequately handle stormwater on-site. While we are on the subject of stormwater, Best Management Practices (BMPs) should always be used. When you are dealing with a big box, you are dealing with a lot of water and there is an obligation to your community and those downstream to handle it correctly.

Require Proper Planning Studies

Separate Traffic, Environmental and Economic Impact Studies should be required. Make sure that the information requested will provide a detailed picture of the impact that the proposed facility will have on your community and others.

While many communities require environmental studies, few require an economic impact analysis. This is a mistake as ultimately the economic implications of a big box can be enormous. Of those communities that do require an economic evaluation, many have established the threshold for requiring a study simply based on the square footage of the facility. For example, a number of communities require an economic impact study for any Large Retail Establishment (LRE) over 50,000 square feet.

Although this standard is acceptable for discount retailers such as Target, Home Depot, Wal-Mart and the like, it may not encompass smaller “category killers” such as Barnes and Noble or CompUSA. This type of store is frequently found in buildings smaller than the threshold that would require an economic study but they can still have an enormous impact on the local economy. Thus, we would recommend that threshold standards be worded in such a manner as to include “category killers” and suggest that you consult with your planner and solicitor to devise a way to do so.

Comprehensive traffic studies that take into account impacts to the regional road system should be required. These studies should not be limited to the project area but should provide a full regional picture, in space and time, of the true impact of the proposal.

Do not ignore the power that these documents may provide. Not only will they provide information that will allow for better planning but under Pennsylvania law, local municipalities are charged with protecting the health, safety and welfare of their communities. If a big box proposal negatively impacts a community, it may become an important basis for defending a rejection.

Although we do not know of a similar case in Pennsylvania, this argument was successfully used in Vermont in the 1996. The Vermont Supreme Court upheld the ruling of the State Environmental Board’s rejection of a planned Wal-Mart near St. Albans because the economic impact assessment had shown that the store would have a public cost of $3.00 for every $1.00 of public benefit. In its decision, the court said:

" A municipality’s ability to pay for [public] services depends on its tax base, that is, the appraised value of property [on the local tax rolls]. To the extent that a project’s impact on existing retail stores negatively affects appraised property values, such impact is a factor that relates to the public health, safety, and welfare.” In re Wal-Mart Stores, Inc. 702 A.2d 397 (Vt. 1997)."

Please note:

Particular attention should be paid to inconsistencies between the traffic, environmental and economic studies. In many cases, these will be prepared by different “experts” and there will be conflicts between the documents. These conflicts, and any inconsistencies, can and should be viewed as fertile ground for questioning the project.

Implement Design Standards

The design standards should reflect the image of your community, not the corporate image of the big box retailer. They want all of their stores to look the same but do you really want your community to look the same as every other?

• Limit the length of any uninterrupted facade to 100 feet or less.
  
• Require recesses and/or projections along at least 20% of length of any facade.
  
• Require that windows and arcades must total at least 60% of any facade facing a public street. (Some municipalities include awnings as an option within this requirement but care should be exercised. Overhangs, some of which can be quite ugly, may be viewed as constituting an awning. Just take a look at a Home Depot and imagine their standard orange metal overhang as a “feature” that meets this requirement. )
  
• Promote greater architectural interest on the main structure and any wall over 20 feet in length by requiring repeating patterns of change in color and texture. The minimum repeat pattern should be in the 20 to 30 foot range on both horizontal and vertical planes.
  
• Require that roof lines not be visually flat and that their design conceal rooftop equipment including but not limited to heating and cooling units.
  
• The use of cinder block, unenhanced concrete and prefab metal or concrete panels as exterior building materials should be prohibited.
  
• Exterior materials should be limited to those that are appropriate for your community which may include brick, wood, or stone. Textured and colored concrete or other similar masonry product may be acceptable to some but personally we find them to be particularly unattractive.
  
• Exterior colors should be neutral or earth tone and have a low reflectance level. Bright colors should be avoided but may be acceptable on trim.
  

Signage should be strictly limited in accordance to your own community standards. Special care should be given when considering the signage on the building itself as it is quite easy to turn the building into a billboard for the LRE. Consideration should be given to the maximum sign height and all internally lit signs should be light colored text against a dark background. No neon lighting that is visible from the exterior of the building should be allowed and signs with moving letters should be prohibited.

Your signage restrictions should reflect the desires of our community and it is wise to consider a separate sign ordinance. Big box retailers are not the only ones whose signage can create an eye sore; huge signs for little stores are equally as common. You should expect strong objections from the LRE if you don’t give them their standard sign package. Don’t cave in to their whining. It is your town and they have more than enough money to design signage that is appropriate.

• Property boundaries of an LRE should not be within 500’ of a historic structure or district, the definition of which should be clearly stated.
  
• Require that each principal building have design features to clearly identify the entrance and which serve as the anchor to pedestrian circulation. Features such as towers, plazas, canopies, porticos, arcades, arches, wing walls, water features and integral planters should be mandated. Weather protection features such as an awning or overhang should be provided immediately adjacent to all public entrances.
  
• Your zoning should recognize that LREs are four sided structures and provide that adequate design standards, shielding and/or buffering are applied to all sides.
  
• Delivery and trash collection areas should be at the rear of the building. These areas should be visually screened and constructed to dampen sound. Screening should consist of a wall at least 8 to 10 feet in height with landscaping provided to breakup the contours of the wall.
  
• No exterior storage should be allowed or if permitted, such storage areas should be shielded from view.
  
• Mobile containers (i.e. truck trailers) for storage should be prohibited. No truck trailers should be allowed on the property for more than 48 hours for the purpose of unloading cargo.
  
• Hours of operation, including deliveries and trash pickup should be established based on the needs of the surrounding community. In residential areas, night time and early morning hours should be severely curtailed to protect the integrity and livability of the neighborhood.
  
• Maximum noise levels should be established and a noise abatement plan required as part of the application.
  
• Special care must be exercised with regard to lighting and your zoning ordinances should address such issues as maximum light levels, pole height and light design.
  
• Box lamps with recessed bulbs are particularly effective at reducing light spill. Decorative light fixtures may appear to be a “nice” design feature but extra care should be exercised before approving their use. In many cases, decorative lights are difficult to control and can produce an enormous amount of glare when illuminated to the levels that the LRE will desire. The pole height is also a major consideration and a 15 foot limit is reasonable. The retailer may complain about this limit as it will require the use of more fixtures than would otherwise be necessary on 50 foot poles but your residents will appreciate your efforts. Neon lights and moving, lit signage boards should be prohibited.
  
  Lighting issues are similar to those surrounding signs in that their impact is not limited to LREs. Many smaller establishments are improperly lit and that lighting can negatively impact your community. You should consider a separate lighting ordinance or including specific requirements that apply to all zoning districts in your zoning and/or subdivision ordinances.
  
  When creating these requirements, be careful and be specific. Avoided wording such as “the lights may not create glare”. That is too general and you will lose in court if you try to argue the point. Specific light intensity limits at the property line are commonly used measurements but they are often ineffective controls. Depending on the fixtures, one could easily light up the night sky and/or create an enormous amount of glare and still met property line intensity standards. Good lighting controls require much more thought than most municipalities expend on the subject. However, it is worth the time and effort to get them right.
  
  (As you consider lighting issues, don’t forget about residential lighting. It appears that many residents that are new to suburban or rural settings are uncomfortable in the dark and have propensity to light their entire yard with high wattage security lights. In our opinion, these are just as bad or worst than most commercial lighting.)
  
• Public amenities should be provided and it is common to require that the LRE provide at least two community amenities such as a patio/seating area, water feature, clock tower, and pedestrian plaza with benches.
  
• Building setbacks are an important component and the minimums selected always seem to small for our tastes. Standard setbacks are in the 35 - 50 foot range with some communities going to 100 feet. We would suggest requiring the maximum possible setbacks, without constituting a taking, be applied to all sides. Consult your solicitor on this issue.
  
• Berming and planted buffering should be required in all instances where the LRE abuts a different use. Standard buffers will offer little protection against the impact of a large retail facility and the buffering requirements in this instance should be made substantially more robust. This would include requiring the use of trees of substantial size in quantities that are 2 to 6 times greater than those normally associated with a residential or light commercial application.
  
• All sides of the building that face a public street and/or are adjacent to parking should be required to have at least one entrance.
  
• No more than 50% of the parking should be allowed between the front of the store and the primary abutting street. The balance of the parking should be placed on the sides and in rear of the store. Parking spaces should be full size (10 x 20 feet) given the proliferation of SUVs.
  
• To increase parking lot safety, 25% of the parking lot should be designated as No SUV Parking. We suggest that these areas be placed nearest the entrance to the LRE. This location is suggested not as a safety measure but as a reward to those who are not wasting our resources.
  
• Parking stalls should be broken up with planted islands and no more than 10 spaces in a row allowed. Islands of a sufficient width to allow planting should be placed between rows.
  
• Clearly marked and contained carriage return areas should be provided in all parking areas.
  
• Pedestrian safety should be a stated objective of the zoning ordinance. Sidewalks should be required along any facade of the building that has a public entrance, abuts a parking area and/or abuts a public street. Minimum sidewalk width should be 8 feet. Sidewalks should be placed a minimum of 6 feet from the building facade and that area should be utilized for foundation landscaping which should be required.
  
• Continuous pedestrian walkways should be provided in all parking areas. These areas should be made clearly distinguishable from the vehicle travel lanes by utilizing a material such as brick, pavers or patterned concrete. Pedestrian walkways should be required to link all buildings within the project including any pad sites.
  
• All primary pedestrian walkways should be required to provide landscaping for not less than 50% of its length. Benches should be provided at least every 100 feet along the walkway.
  

Outdoor sales areas should be tightly regulated, or this is what you'll get.

Outdoor storage requirements should be very strict. Trailers should not be allowed to be used for storage.

Now for the big one....

Buckingham, Pennsylvania received national attention when they enacted a requirement that an escrow could be required in the amount needed to tear down an “abandoned” big box if it was left vacant for 12 months. This seems to have had some effect as Buckingham has no big boxes and no one seems to be very anxious to put one there despite the township’s excellent demographics and location. Give it a try. In the worst case, you will have the funds available to make sure that an abandoned big box does not become a drain on your community.