The language in San Diego’s big box ordinance is clear. It would legally require the City Council to deny permits for supercenters expected to have a negative impact on local neighborhood businesses.
That’s why Walmart is so opposed to it, and why the company has said the ordinance would effectively ban their ultra-large supercenters from moving into the city.
But the City Council could still approve a supercenter even if it was expected to put many nearby retailers out of the business. They’d just have to say that that was not a negative impact. And that, the ordinance’s supporters say, is why it is not a ban.
To approve a supercenter even in the face of overwhelming evidence that it would damage local businesses, the City Council would just have to make a formal finding that would go against most people’s definitions of what is good and what is bad for local businesses, or in the carefully chosen language of the ordinance, what is “materially adverse.”
At the City Council’s Nov. 3 meeting, Councilman Tony Young asked Assistant City Attorney Mary Jo Lanzafame whether the City Council could still approve a supercenter even if an economic study showed that a new store would be bad for local businesses.
After hesitating, Lanzafame responded, “Hypothetically, yes.”
The council could take into account any number of other factors, like low prices or jobs a new store would create.
“Like all of your land-use decisions, you take into account all of the evidence before you when making your decision to approve or deny a project,” Lanzafame told the council.
Councilwoman Donna Frye, who supports the ordinance, said the purpose of the ordinance’s language was to give council members as much flexibility as possible to decide what is a positive impact and what is a negative impact. Even if most people would disagree.
“How one defines ‘will or will not adversely affect’ is up to the discretion of the decision maker,” she said. “That seems to give us a great deal of latitude, because that’s how our land development code is written.”
Mayor Jerry Sanders vetoed the ordinance, which the City Council approved on Nov. 16. The Council is expected to override that veto with five votes on Thursday.