What, then, isn't a land-use regulation?

The city of Tucson has a love-hate relationship with so-called "big box" stores. On the one hand, your average Joe or Jose shops at the superstores, from the early-morning opening to the late-night closing. Tucsonans like the big-boxes so much that where they can--outside city limits--many stay open 24 hours. It's also no secret that Wal-Mart, Home Depot, Lowes, and Food City (in addition to the anchor department stores at the various malls) make Tucson a weekend shopping destination for quite a few Sonorans.

On the other hand, the big boxes, especially Wal-Mart, are the target of quite a few affluent NIMBYs, who for varying, mainly aesthetic, reasons--it's a symbol of the auto-driven sprawl that they like for themselves but would prefer others would decline--would rather such stores didn't exist and who go to bizzare lengths to make it difficult for the big-boxes to do business within city limits.

Take, for example, Tucson's ordinance requiring that retailiers meeting the "big box" criterion can only devote 10% of their floor space to groceries, that is, unless it devotes greater than 90% of its floorspace to groceries. Instead of letting the businesses assume the risk of determining what consumers want, the City Council, back in 1999, pretended to do so for them.

Of course, the Councilmen didn't have the consumer in mind at all. We can't even say that the ordinance was a misguided effort to "protect" small business; the effect was to "protect" Albertson's, Food City, and big-box law flouting Fry's (notorious for using freight containers to keep itself under 100,000 square feet) from Target and Wal-Mart. Mark Kimble laid it out clearly in last Thursday's Citizen: the grocery restriction was included the big-box ordinance at the behest of the United Food and Commercial Workers' Union, the same, nefarious group trying to strong-arm Basha's--Arizona's only family-owned grocery chain and a regular contributor to various good causes--into unionizing its employees without a vote. Wal-Mart is, famously, union-free.

On the heels of securing neighborhood support and a favorable City Council vote for a Supercenter at 36th and Kino, Wal-Mart decided to go one further and petition to put the "Consumer Choice Initiative", repealing the grocery provisions of the big-box ordinance, on this November's ballot. 11,615 valid signatures were required, over 22,000 (one of them mine) were collected.

In the face of this seemingly strong support to at least see the question put to a vote, the City Clerk rejected the petitions, claiming that land-use regulations cannot be amended by the ballot initiative process. That may or may not be true; it's not enshrined in the State constitution, but it was the result of a 1997 court case.

The supposed reasoning behind the decision--if anyone can locate it, please leave a comment!--was that ballot initiatives would undermine the public participation supposedly central to the zoning process. The catch is: the big-box ordinance, with the grocery provision, was passed without public discussion!

Furthermore, land-use regulations are concerned with such matters as traffic, lighting, parking, noise pollution, and the like--externalities--and not with everything that goes on inside a store. A law saying Ace Hardware may not sell nails, only screws, or that drugstores can't sell newspapers unless they also sell Harry Potter, is not a land-use law, no matter where it's found in the statute, unless, like "public use" or "interstate commerce", every law is a land-use law.

Wal-Mart was ready to take the city to court, but has backed down for mysterious reasons. Was there a threat to renege on the variance involving 36th and Kino? Who knows. As a signer of the petition, I could be a plaintiff myself, but I'm too busy and too broke.

I've heard plenty of FUD and a few truly legitimate gripes about Wal-Mart, such as the corporate welfare it's been given in Prescott, but for the first time I can say that the company has let me down.

Postscript: It's clear which of Tucson's two newspapers is more favorable to enterprise--and to individual liberty in general--and it isn't the Daily Star. Keep that in mind when your subscription renewals come up.