Retail Store Size-Cap Ordinances and the Dormant Commerce Clause Doctrine

Urban Law, Vol. 37, 2005

44 Pages Posted: 13 Mar 2005

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law

Rachel M. Lary

Samford University - Cumberland School of Law

Abstract

In an effort to control suburban sprawl, many local land use planners have targeted large, big box retailers - Wal-Mart, for example - alleged to be catalysts for sprawl. Size-capping ordinances limiting the amount of square feet that stores may occupy have become a popular alternative to complex, expensive smart-growth regimes. However, we argue that many of these size-cap ordinances are vulnerable to dormant Commerce Clause doctrine (DCCD) challenges because, though facially-neutral, they are passed with either an avowed protectionist purpose (protecting local retailers from competition) or discriminate against out-of-state retailers in their effects. The following essay furnishes evidence for this assertion, as well as providing tentative answers to two vexing doctrinal questions that the Supreme Court has never explicitly answered in its DCCD jurisprudence. First, how are courts to tease out a protectionist purpose? Second, which effects count as discriminatory under the DCCD?

Keywords: Wal-Mart, dormant commerce clause, discriminatory effects, discriminatory purpose, size-cap ordinances, land use controls, zoning, sprawl

Suggested Citation

Denning, Brannon P. and Lary, Rachel M., Retail Store Size-Cap Ordinances and the Dormant Commerce Clause Doctrine. Available at SSRN: https://ssrn.com/abstract=676548 or http://dx.doi.org/10.2139/ssrn.676548

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

Rachel M. Lary

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States

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