Can ‘big-box’ ruling pass court test?

Adrienne Packer

Friday, Oct. 8, 1999 | 11:04 a.m.

A controversial ordinance adopted Wednesday should stand up in court unless a judge reads beyond the listed intent and sees that Clark County officials had other motives, some area attorneys said Thursday.

"The courts will have to look at what's really going on and find evidence of a lack of justification for the ordinance," said Allen Lichtenstein, counsel for the American Civil Liberties Union of Nevada.

"I don't think anybody believes this ordinance was to prevent traffic problems; it was clearly an anti-competition force."

Clark County commissioners voted 3-2 to approve an ordinance that prevents stores from opening that are larger than 110,000 square feet and that dedicate more than 7.5 percent of their floor space to groceries.

The law was written to keep "big-box" stores out of the county. Commissioners who supported it said the large one-stop-shopping stores -- which are the latest trend nationwide -- cause too many traffic problems in parking lots and surrounding neighborhoods.

Wal-Mart representatives, who have yet to file a lawsuit, believe the ordinance targeted their Supercenter because it was drafted shortly after plans were submitted. Critics agreed, saying local unions pressured elected officials to create a law that would keep the nonunion company from opening its grocery store.

Should a Supercenter ever open in Clark County, it would be the first major nonunion grocery store in the valley.

On Thursday, an affidavit was filed with the Clark County Elections Department by a five-member committee called Citizens for Competition, seeking to put the issue on next year's election ballot.

However, because the committee submitted the old ordinance number that was changed by the County Commission during Wednesday's hearing, a new affidavit will have to be filed. The group plans to refile the affidavit today with the correct new ordinance number.

Chuck Muth, a political consultant and a member of the committee, said his group did not necessarily decide to go to the voters rather than seek relief in the court system because they thought they would lose.

"That never entered our minds," he said. "We did feel, however, that if we went through the court system and won, it could take three to four years and be very expensive. We wanted to save that time and expense.

"We don't believe that any fair judge would rule that it is OK to discriminate against one company in a free economy. But with some of the court decisions that have been rendered over the years there is a reason not to have as much faith in the courts. I have much more faith in the voters."

The committee has 180 days to collect signatures from 10 percent of the people who voted in the last election. That amounts to 25,760 Clark County residents.

Attorney Chuck Gardner said because the county has offered valid reasons to keep big-box stores out of the valley, it would be difficult for a judge to decide the law was a "sham" to protect union businesses.

"They have put reasons on the record that would appear to make it a valid planning ordinance," Gardner said. "People could disagree with those reasons, but the county has asserted them."

UNLV law professor Jay Bybee said he can't see how the ordinance could be viewed as unconstitutional unless attorneys can prove it was crafted to keep out-of-state businesses out of Las Vegas.

But Bybee, like several other attorneys, said the county has the right to adopt zoning and planning policies.

"This was not a Wal-Mart rule, it has a general applicability; it's a big-box rule," Bybee said. "Wal-Mart is the excuse for invoking the rule right now. Who knows what motivated the board? Some might have been motivated by the union and some might have been motivated by the thought of living near big-box stores."

But attorney Chris Kaempfer says he has no doubt the ordinance was created to specifically keep the nonunion Wal-Mart out. He said if Wal-Mart was a union shop, its permits likely would have been approved quickly.

"I think the judge has to get beyond the face of it," Kaempfer said. "What will happen in this case is the purpose and motivation for this ordinance will become clear and when it's clear it will affect its constitutionality."

Plenty of evidence indicates the ordinance was targeted at Wal-Mart, he said. Union members wore "Stop Wal-Mart" stickers to early meetings, but later changed them to badges asking the county to save their neighborhoods.

And, Kaempfer said, the size restrictions were adjusted at the last minute so that other stores like Costco wouldn't be caught in the "Wal-Mart web."

Even more important, he said, is that the ordinance adopted Wednesday does not resolve traffic issues that the county said spawned the proposal. Under the new law, a developer could build a store bigger than any Supercenter as long as it didn't house a significant grocery center.

"If everybody recalls accurately what they said about the reason why this ordinance was even proposed there will be no possible question as to what motivated it," said Kaempfer, who represents shopping center developers.

Kaempfer said county officials even referred to the proposal as the "Wal-Mart ordinance."

Lichtenstein said this type of ordinance is nothing new to the county. Lichtenstein and ACLU executive director Gary Peck said the latest ordinance has many similarities to the adult uses ordinance passed last month.

The adult uses ordinance extended the required distance between adult businesses from 500 feet to 1,000 feet.

The ACLU representatives said commissioners were protecting casinos and cabarets that were threatened by the Sporting House on Industrial Drive, which had submitted plans for a large topless dance club.

Sun reporter Ed Koch contributed to this story.