The Regulation of Superstores: The Legality of Zoning Ordinances Emerging from the Skirmishes between Wal-Mart and the United Food and Commercial Workers Union

Abstract

Having saturated the less populated heartland of America, Wal-Mart is carrying its supercenter expansion program to major urban areas. Wal-Mart supercenters merge discount retail with full service grocery stores under the same roof. Because supercenters compete head-on with unionized supermarkets, they place downward pressure on grocery worker wages. The United Food and Commercial Workers, the largest representative of grocery workers, has joined other Wal-Mart critics at city halls across the country in using zoning laws to restrain Wal-Mart's supercenter expansion program. A smattering of lawsuits has ensued, and more are sure to follow. This paper describes the types of anti-superstore zoning ordinances favored by the UFCW, and the legal objections Wal-Mart can expect to be raised against them. At the top of the legal checklist are equal protection, pre-emption by the National Labor Relations Act, and prohibitions against the use of zoning to regulate economic competition. Anticipating these objections, the UFCW and its allies can make a public record sufficient to insulate virtually any anti-superstore ordinance from being invalidated in court. But this cannot be accomplished easily or inexpensively, because enacting jurisdictions wanting to avoid remand will need to commission studies to fit the claimed rationales for these laws. Market impact assessments sensitive to the local trade area will almost always be required, and in a handful of states, including New York and California, so will environmental impact reports. If the UFCW and their grocery chain allies find the zoning effort too costly and cumbersome, they may wish to consider extending "living wage" controls to grocery workers, a move more likely to be resisted in the political arena than blocked by courts.