State says county can adopt store ordinance

Tuesday, Oct. 5, 1999 | 11:35 a.m.

CARSON CITY -- In a victory for organized labor, the state Attorney General's Office said today that Clark County Commissioners could adopt an ordinance stopping Wal-Mart from building a super store in Southern Nevada.

Senior Deputy Attorney General Robert Auer said there is no constitutional barrier nor does the proposed ordinance violate the interstate commerce clause. He said it appears "that a grocery store size limitation within structures of a certain size would not deprive retailers from all reasonable uses of their property."

Danny Thompson, executive director of the Nevada State AFL-CIO, called this "good news." He said, "This ends confusion over whether they (the county commission) can go ahead. This verifies our belief."

Officials from Wal-Mart could not be reached for comment.

The proposed ordinance would require stores with 100,000 square feet of space or more, offering both retail products and groceries, to put each business in separate buildings. Wal-Mart had plans to build "super stores" in Las Vegas combining both businesses.

The county commission delayed action on the planned ordinance until it received the opinion from the attorney general's office.

Auer said the ordinance "falls squarely within the county's power to regulate and restrict the use of buildings and land within its commercial zoning districts."

The proposed ordinance, he said, contains a finding that adding a grocery store to a large retail super store will mean excessive traffic and higher pedestrian use.

"The health, safety and welfare concerns for persons driving, walking and parking in such concentrated areas are facially valid," Auer said. "The introduction of gaming or smoking activities into a public place where such activities were previously prohibited would also involve health, safety and welfare concerns."

This ordinance, Auer said "sets forth a rational basis" for limiting the size of grocery stores in certain structures. The proposed ordinance also operates even-handedly for in-state vs. out-of-state retailers."

"Its grocery use limitations apply to all businesses, no matter where they originate from, if the business retail space exceeds 100,000 square feet," he said.

The ordinance, he said "is not based on any invidious discrimination such as race, alienage or religion. No fundamental right is being regulated through the ordinance.

"Thus the constitutionality of the measure will be upheld against a Fourteenth Amendment challenge if the law is reasonable, not arbitrary, and bears a rational relationship to a legitimate governmental purpose."