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

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?