Agenda - Planning Commission - 11/06/2008

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..:_..;:::;.cj.:::.::'.,,:;. ---:. _3=;::i;::~.,:~-'_,,_: _,:.'::::?s.::;'Z:~~=~g.:i;.z, __ :~'::.~~:'::~~.:i.~',j:-.._:,;----",~-- -. ~- :.,-: Zoning Bulletin Validity of Zoning Regulations-Village enacts ordinance restricting "formula retaW' establishments Busmess owner claims ordinance violates its constitutional rights Citation: Island Silver & Spice, Inc. v. Islamorada, 2008 WL 4118104 (11th Cir. 2008) . The 11th U.S. Circuit has jurisdiction over Alabama, Florida, and Georgia. ELEVENTH CIRCmT (FLORIDA) (09/08/08)-In January 2002, the village enacted a zoning ordinance, which prohibited "formula restaurant[s]." A provision of the ordinance also restricted "formula re- tail" establishments to 2,000 square feet or 50 feet of frontage (the Pro- vision). The ordinance defined "formula retail" as: a type of retail sales store that was required by contract or other arrangement "to maintain any. of the' following: standardized array of services or merchandise, trademark, logo, service mark, symbol, decor, architecture, layout, uni- . form, or similar standardized feature." Island Silver & Spice, Inc. (ISSI) owned and operated an independent mixed-retail store in the village. In June 2002, I5SI contracted to sell its property to a developer..That developer wanted to establish a Walgreens drugstore on ISSI's property. The developer protested the Provision's re- strictions on formula retail stores, but was unsuccessful. Thereafter, the developer withdrew from the pu:t;chase. ISSI brought a lawsuit against the village. ISSI argued that the Provi- sion violated many of its constitutional rights, including its rights under the Commerce Clause of the United States Constitution. The district court invalidated the Provision, concluding that it violated the Dormant Commerce Clause. The village appealed. DECISION: Affirmed. The Dormant Commerce Clause prohibits "regulatory measures de- signed to benefit in-state economic interests by burdening out-of-state competitors." The court explained that it applied a two-part test in an- alyzing whether a regulation violated the Dormant Commerce Clause. First, it determined whether the regulation directly discriminated against interstate commerce or had only indirect effects on indirect commerce: .second, if. it directly discriminated against interstate commerce, then the regulation would be subjeCt to "elevated scrutiny": It would o~y 10 @ 2008 Thomson Reuters/West 78 /"\ \ ), .~_......... . \ i . ) .,J I I I \ I j i j I .'\.