Constitutionality of Proposed Montgomery County Law on “Big Box” Stores Debated

A November 28 Washington Post article discusses the potential constitutional issues of a proposed Montgomery County law that would target “big box” stores such as Wal-Mart.  The controversial proposed law would require big box retailers to meet with community groups and try to reach agreements on employee wages and benefits and environmental concerns.  Supporters of the bill cite the negative impacts big box stores can have on local businesses and communities and argue that the bill only requires a good faith attempt by a retailer to reach an agreement with affected community groups.  Opponents argue the bill unfairly targets a select group of retailers, complicates the zoning process, and vests too much power in small groups who may not represent the entirety of their communities.

The top attorney for the Montgomery County government said Monday that a bill proposing limits on big-box stores is unconstitutional.  …

Some legal experts say Han­sen’s opinion is not definitive. The bill “is not obviously unconstitutional,” said Mark Graber of the University of Maryland.  …

In his opinion, Hansen…suggests that the negotiations make the bill unconstitutional. He writes that the bill might illegally overburden big-box retailers and illegally grant private entities the power of determining the community’s best interest. Council members cannot address either concern, he continued, without “changing the fundamental nature” of the bill.

But Graber said bill supporters can argue that big boxes have “serious” social and economic effects on the community that warrant a sort of quid pro quo. He added that the counterargument — that zoning processes should deal with physical effects such as traffic and parking, not community effects — is also strong.

The Montgomery County Council will likely consider amendments to the bill.

November 7 bill summary for County Council

October 29 Washington Post article

November 2 Washington Post article

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