Big-Box Ordinance Stirs Legal Fight

March 26, 2004 - 10:32

Peachtree City Holdings (Pathway Communities), a company based out of Georgia, and Faison Enterprises, a company based out of North Carolina, went to Fayette Superior Court on February 24, 2004, because developers want to build a 125,000 sq.ft. Target store and 145,000 sq.ft. of additional commercial space. However, this would violate Peachtree City’s 3 1/2-year-old big-box law, which places strict limits on where retailers the size of the proposed Target store can be located in Peachtree City, Ga.

According to the ordinance, big-box development is only allowed near Peachtree City’s busiest intersection. Also, a single tenant cannot occupy more than 32,000 sq.ft. However, a vacating tenant cannot prevent a landlord from trying to lease the space if it is more than 10,000 sq.ft. According to an article in The Atlanta Journal-Constitution, that part of the law is meant to prevent a departing retailer from continuing to pay rent on a building just to keep it empty.

Big-box ordinances have had a great impact on greenhouse growers, who have relied on big chains like Target for a large amount of jobs.

Both Peachtree City Holdings and Faison Enterprises argue that the project should be exempt from the law because planning was already under way before the law was approved in November of 2000. They also argue how the ordinance is worded. According to the article in The Atlanta Journal, the language used refers to a tenant, but Target would own its own site, so it would not be a tenant and therefore is not subject to the ordinance.

"The law clearly means anyone who occupies it is the tenant, be it the owner or the renter," stated Richard Hubert, the lawyer representing homeowners who have joined the dispute on the side of the city, in a recent article on PlainVanillaShell.com, a Web site for the retail real-estate industry. According to an article in The Citizen, several hundred homeowners have protested the plan since it first went public in August 2003.

"There are thousands of citizens in Peachtree City who are looking at this case and who expect the city to defend their laws and regulations in regards to the big-box ordinance," said Tim Wedemyer, an officer at Lake Kedron Homeowners’ Association in Kedron Village, Ga., inThe Citizen.

According to The Atlantic Journal-Constitution, the big-box law’s intent is to protect the city’s design, made up of villages with neighborhood retail. It is also created to protect against the perceived drawbacks of big-box development, including blight and increased crime after a space is vacated, and road rage from increased traffic.

Big-box ordinances have been putting limits on businesses nationwide. The green industry has been directly impacted by these laws. Big-boxes like Target, Wal-Mart, Home Depot, etc. account for a large majority of greenhouse growers’ supplies. They also provide a large amount of jobs to people in the industry. Eliminating big-box businesses would have a huge effect on the amount of jobs and the amount of greenhouse-grown crops that growers rely on.

The lead attorney for the developers, George Rosenzweig, calls the big-box law unconstitutional because it discriminates against a specific segment of the retail industry—large-scale discount department stores—without distinction. "The distinctions of equal protection and due process applied to one retail business and not another is what makes this case distinctive," Rosenzweig told The Citizen.

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