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<br />decor, architecture, layout, uniform, or similar
<br />standardized feature." The ordinance requires
<br />these businesses to obtain a Major Special
<br />Use Permit to open a business or expand
<br />more than 500 square feet. In addition, the
<br />establishment may not have a street. level
<br />frontage of greater than SO linear feet nor have
<br />its retail space occupy more than two stories
<br />(except for grocery stores, banks, savings and
<br />loans, restaurants, and theaters). The required
<br />special use permit may be approved only after
<br />the planning commission and city council
<br />make certain finding~ regarding the establish-
<br />menfs compatibility with existing surround-
<br />ings and community character. Other findings
<br />include the establish ment's contribution to an
<br />appropriate balance of local, regional, or
<br />
<br />tions not unlike those in Coronado. Formula
<br />retail businesses were allowed as conditional
<br />uses, provide.d thatthe street-level frontage
<br />did not exceed So linear feet and the fioor
<br />area did not exceed 2,000 square feet.
<br />Because of the regulations, a property
<br />owner was not able to sell a building to buyers
<br />who wanted to open a Walgreens drug store.
<br />Eve[l though the intent of the ordinance was to
<br />retain a small-town community and prevent for-
<br />mula businesses from eroding the village's
<br />uniqueness, the court found that the village had
<br />no historic or unique area that warranted limita-
<br />tions on formula businesses. Small formula
<br />retail was not subject to the ordinance, and
<br />existing large formula retail businesses were
<br />allowed to continue as nonconforming uses,
<br />
<br />Formula business restrictions that discriminate
<br />against out-of-state businesses, intentionally or
<br />. unintentionally, are much less likely to survive a
<br />legal challenge.
<br />
<br />national businesses in the community, and an
<br />appropriate balance of small, medium, and
<br />large businesses. The stated purpose of the
<br />ordinance was to maintain Coronado's
<br />"unique village character, the diversity and
<br />vitality of the City's Commercial Districts, and
<br />the quality of life of Coronado residents."
<br />In upholding Coronado's formula business
<br />restrictions, the court observed that the ordi-
<br />nance "does not impose different regulations on
<br />interstate as opposed to intrastate businesses,
<br />nor does it distinguish between those busi-
<br />nesses that are locally owned and those that are
<br />owned by out-of-state interests. Instead, its reg-
<br />ulations are uniformly applied-any business
<br />that meets the definition of a Formula Retail is
<br />required to obtain a permit before it opens a
<br />business or expands the specified amount, and
<br />is subject to the specified space limitations."
<br />The court also found no intent to discriminate
<br />against out-of-state businesses. Instead, the
<br />court concluded that the city council's primary
<br />purpose was to "provide for an economically
<br />viable and diverse commercial area that is con-
<br />sistent with the ambiance of the city."
<br />Contrast the California case with Island
<br />Silver & Spice, Inc. v. Islamorada, Village of
<br />Islands, where in 2007 a federal court in
<br />Rorida reached a very different conclusion.
<br />The village had adopted formula retail restric-
<br />
<br />both of which undermined the ordinance's
<br />objective of preserving community character. In
<br />addition, the court found that the ordinance was
<br />tailored to serve local business interests by pre-
<br />venting competition from national chains. Even
<br />though the regulations, like Cor'onado's, treated
<br />local and out-of-state chain stores the same, the
<br />court found that the resulting damage to inter-
<br />state commerce outweighed any local zoning
<br />benefits created by the regulations.
<br />
<br />Legal Dos and Don'ts
<br />These two cases illustrate that planners and
<br />local officials must carefully draft regulations
<br />so that they are specifically designed to
<br />achieve their stated purpose. Below are five
<br />key points to assist local governments in
<br />avoiding legal troubles when amending their
<br />zoning to encourage a balanced mix of uses in
<br />downtowns and business districts:
<br />. Generally applicable regulations that are
<br />legislatively adopted are less likely to receive
<br />legal scrutiny than those that are imposed on
<br />an ad hoc or administrative basis.
<br />. Formula business restrictions that discrimi-
<br />nate against out-of-state businesses, inten-
<br />tionally or unintentionally, are much less likely
<br />to survive a legal challenge.
<br />. Formula business restrictions should be
<br />limited to key areas where commercial diver.
<br />
<br />sity is needed to retain a vibrant mix of uses,
<br />unique character, etc..
<br />. Affordable-space requirements must be
<br />rationally related to the stated zoning or land-
<br />use regulatory objectives and must not be out
<br />of proportion to the needs created by ~ pro-
<br />posed development.
<br />.. Staff reports, ordinance intent statem~nts,
<br />public hearing records, and the like should not
<br />suggest any intent to discriminate against out-of-
<br />state businesses or chain stores/restaurants.
<br />
<br />CONCLUSION
<br />Increasingly, many downtowns and central busi-
<br />ness districts must contend with a lack of afford-
<br />able commercial space and difficulties in main-
<br />taining a healthy mix of uses. Fortunately, there
<br />are proven, legally defensible land.use regulatory
<br />solutions being used effectively in some progres-
<br />sive communities around the country to meet
<br />these challenges. Drawing from these examples,
<br />with careful attention to legal issues and market
<br />conditions, local govemments can craft regula-
<br />tions to further the goal of vibrant, sustainable
<br />downtowns and central business districts.
<br />
<br />A mix of retailers thrive in the restored
<br />. buildingsliningSt. Joseph Avenue in down-
<br />town Brewton, Alabama. @ iStockphoto.com/
<br />Perry Watson.
<br />
<br />VOL. 24, NO. 10
<br />Zoning Practice is a monthly publication ofthe
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