Agenda - Planning Commission - 11/06/2008

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.'2'~______~i:~:';;::.:.~::..:; >:::~?:t-:;:~::i:"~~~~z:;.-::.:___ !~~~~J:-~:=::'--,,:;"::L-~S::-.;.""~_-:-"':'::"- .-'-.:.;..;.-.;....:;::....:.:..._'"-'-~'.._'-,-'-~ ..-- "'-. - '"--- .'. -------. \ I J () (j October 10, 20081 Volume 21 No. 19 - be valid if it advanced a "legitimate local purpose that [could] not be adequately served by reasonable nondiscriminatory alternatives." On the other hand, if the regulation only indirectly affected interstate com- merce, then it would be subject to a lesser scrutiny: It would be valid if the St.ate's interest was legitimate and the local ben~fits exceeded the bilr- den on interstate commerce. The court foUnd that the Provision did not, on its face, discriminate against interstate commerce. However, it found that it did, in effect, dis- criminate against interstate. commerce. This was because, as the parties had stipulated, the restrictions on total square footage and street level frontage could not accommodate the minimum requirements ~f a.nation- ally or regionally branded formula retail' store. The court concluded that the ~rovision was therefore subject to. elevated scrutiny. Thus, it would only be valid if it advanced a "legit~ate local purpose that [could] not be adequately served by reasonable nondiscriminatory alternatives." The court noted that the Provision's stated local purposes included: (1) the preservation of (a) "unique and natural," and (b) "small town," community characteristics; (2) encouragement of "small scale uses, wa- ter-oriented uses, [and] a nationally significant natural environment;" and (3) avoidance of increased "traffic congestion. . . [and] litter, gar- bage and rubbish offsite." The court found none ofthese was a "legiti- mate local purpose" as required to justify the ProVIsion's discriminatory effect. While preserving small town character was a legitimate purpose, the village had "not demonstrated. it had any small town character to preserve." This was because the Provision restricted formula retail stores, but the zoning ordinance allowed other large and non-unique structures. Thus, the zoning ordinance did not preserve small town character. As to the stated purpose of encouraging small-scale and natural uses, the zon- ing ordinance allowed for retail use of the property .in very large build- . ings, and only singled out "formula" retail and restaurants. There also was no evidence that the village was "uniquely relaxed or natural." Moreover, the stated purposes of reducing traffic and garbage were not legitimate because the village already had regulations that governed those issues. The court concluded that the village failed to indicate a legitimate local purpose to justify the Provision's discriminatory effect. Accordingly, . it helcithat the Provision violated the Dorniant Commerce Clause and was invalid. \ ) '---=---' See als(): Bainbridge v. Turner,.311 E3d i104 (11th or. 2002). See also: Hunt v. Washington State Apple Advertising Com'n, 432 U.S. 333,97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). @ 2008 Thomson ReutersIWest 11 79