Limit the Density of Dollar and Small Box Discount Stores in Food Deserts and Food Swamps
Bradley Adams (author), Jonathan Rosenbloom, Claire Child, Lihlani Nelson, & Laurie Beyranevand (editors)INTRODUCTION
An eroding middle class and post-2008 recession spending habits have contributed to the meteoric rise of “dollar stores” across the U.S.[1] Since 2011, the major dollar store chains, such as Dollar General (approximately 16,100 stores), Dollar Tree (approximately 7,200 stores), and Family Dollar (approximately 9,400 stores), have seen a 50 percent increase in the number of retail locations throughout the country.[2] Dollar stores often target low-income neighborhoods,[3] and are beginning to be viewed as a contributing factor to the entrenchment of poverty in low-income communities rather than a mere byproduct of their existence.[4] Access to fresh meats, fruit, and vegetables is cut off in areas saturated by dollar stores, which do not traditionally offer fresh food as a purchasing option.[5] The food selection they do offer does not foster good health and is often packaged in smaller quantities, so that despite a lower “sticker price” for the same brand of an item, customers end up paying more as measured by per unit costs.[6] In urban and rural communities alike, dollar stores are driving out vendors that provide residents access to healthy nutrition.[7]
Local regulations that target dollar stores are cropping up across the south, where the stores are most densely located,[8] and are beginning to spread to other areas that view them as problematic.[9] Some communities have passed ordinances to address dollar stores by restricting their concentration in a given area, typically not allowing another site with the same use to be within one mile of each other, as measured by a straight line at each property’s boundary line.[10] Codes will often refer to these retail uses as “dollar store,” “small box discount store,” and “small box variety store.” Floor areas in these properties must typically be under a range of square footage from 10,000-15,000 feet.[11]
These ordinances also often contain exemptions for unintended uses that might fall within the ordinance’s ambit, such as pharmacies and gas stations.[12] Ordinances usually carve out another exemption for sites that use a certain percentage of floor space to sell fresh meat and produce.[13] There is some variation across jurisdictions as to the method by which to apply these regulations. Some areas apply a unilateral ban[14] and others take a district-by-district approach.[15] Other localities utilize overlay zones, which keep the base district’s regulations intact but add special rules to areas where the overlay applies.[16] Lastly, some jurisdictions require a special or conditional use permit, where developers have to apply for approval from a local authority to site a dollar store, and will only be approved if certain criteria are met, such as making fresh produce available for sale.[17]
EFFECTS
Dollar stores have the potential to siphon business away from traditional grocers while discouraging development of retailers selling fresh food.[18] Stores have a difficult time competing with dollar store formats because overhead costs are much lower at dollar stores, particularly in the areas of staffing and security.[19] Sales at small town grocery stores can drop as much as 30 percent upon the arrival of dollar store competition.[20] Grocers in districts heavily populated by dollar stores can find it difficult to gain a strong and loyal customer base when dollar stores are heavily concentrated in an area, spreading customers among the many options.[21] Dollar stores can also create negative net employment in some circumstances because they create fewer jobs than the businesses they replace.[22]
There are some indications that the dollar store business model, with high volumes of cash transactions and low security and staff, can lead to an increase in crime.[23] For example, in 2017, 18 Family Dollar locations were the targets of 32 armed robberies in Dayton, Ohio, alone.[24] Over 200 instances of gun violence have been documented at Family Dollars and Dollar Generals since the start of 2017 with almost 50 deaths resulting therefrom.[25]
EXAMPLES
Tulsa, OK
Tulsa has established Healthy Neighborhood Overlay (HNO) districts to promote a broader range of retail choices and increase the availability of fresh meat and produce within the overlay zones.[26] Through the use of these overlay zones, Tulsa seeks to decrease the per-capita frequency of small box discount stores within the district’s boundaries, while encouraging community-oriented solutions regarding fresh meat availability, fresh produce availability, and distribution and purchasing options. The City also provides support for investors to develop different options for residents to attain fresh meat and produce through grassroots methods and more diversity in retail stores.[27] The City defines small box discount stores as a retail use with a floor area of less than 12,000 square feet which sells a “variety of convenience shopping goods and consumer shopping goods,” in addition to offering a majority of those items at a price of $10 or less.[28] Provisions of the ordinance apply to all new uses, structures, building alterations, and modifications to sites that developers would need to obtain a building permit to execute.[29]
Small box discount stores not exempted in the overlay zones must be separated from one another by a distance of one mile as measured by a straight line from each of the properties’ nearest boundary line to the other.[30] The Code exempts traditional pharmacies, gas stations, and grocery stores, as well as any use where 500 square feet of the site is dedicated to the sale of fresh meat and produce, from these requirements.[31] Community gardens are allowed and are also able to sell produce on site within HNO zones (for our brief specifically discussing community gardens see Community Gardens on Private Property as a By-Right or Permitted Use).[32] Grocery stores are incentivized in HNOs by reducing the parking requirements for their sites by 50 percent.[33] Tulsa retains the ability to waive the distance requirement in some circumstances if approval is granted to a small box discount store developer that has been granted an exception through the city’s “special exception approval process.”[34]
To view the provisions see Tulsa, OK, Code of Ordinances §§ 42.35.050(L)(4), 42.20.060 (current through 2020).
Wyandotte County, KS
Wyandotte County defines dollar stores as “small box variety stores” with surface areas equal to or less than 15,000 square feet that sell items such as food and beverages designed for consumption off premises, household goods, grooming or health products, and “other consumer goods.”[35] Gas stations, pharmacies, sites where 15 percent of the area is used for “fresh or freshly frozen food” and sites where food comprises less than two percent of total shelf space are not regulated as small box variety stores.[36] “Fresh and freshly frozen food” is defined as food made for consumption by humans that has not been processed or is still in a raw state and food that has been frozen while fresh (unprocessed meats or seafood qualify).[37] Small box variety stores may only be established upon receipt of a special use permit regardless of what district they are sited in.[38]
In certain business, commercial, and industrial districts, additional regulations apply.[39] For example, small box variety stores cannot be located within 10,000 feet of one another, nor can they be located within 200 feet of a property used as a single-family, two-family, town home or apartment residence.[40] Measurements are to be made from property line to property line for each relevant use category.[41] The Code contains a grandfather clause for sites that have been in operation continuously under the same business name since the passing of the ordinance.[42]
To view the provisions see Wyandotte County – Unified Government, KS, Code of Ordinances §§ 27-340, 27-593(b)(21) (2019).
Mesquite, TX
Mesquite’s Code refers to dollar stores as “variety stores,” and defines them as “a retail store that sells a wide variety of relatively small and inexpensive items.”[43] Variety stores are a prohibited use if another variety store is within 5,000 feet of a site.[44] If a site is more than 5,000 feet away, variety stores are allowed only upon receipt of a Conditional Use Permit (CUP).[45] In addition to regulating matters such as nuisance and parking minimums, to obtain a CUP, the use at issue must not be detrimental to either of adjacent uses or adjacent property values, nor can it hinder “the normal and orderly development and improvement” of adjacent property.[46] Considerations specific to variety stores include whether granting a CUP will negatively affect the development of any business that would sell “fresh and healthy food items,” such as grocery stores;[47] whether the area is a food desert as defined by the U.S. Department of Agriculture;[48] the availability of fresh food in the area;[49] and the effect the proposed use would have on the “retail food environment index as defined by the Centers for Disease Control and Prevention.”[50] Developers who receive a CUP for a variety store must use 10 percent of their floor space for “fresh produce, meat and dairy products.”[51]
To view the provisions see Mesquite, TX, Code of Ordinances App. C §§ 3-510, 5-303(B), 6-102 (2018).
ADDITIONAL EXAMPLES
College Park, GA, Code of Ordinances App. A §§ 1.4, 3.1 (banning small box discount stores in all districts and defining them as sites with less than 15,000 square feet offering a variety of goods continuously priced at five dollars or less; regulations do not apply to pharmacies or sites where 15 percent of the floor space is dedicated to fresh food and vegetables).
Lauderhill, FL, Land Development Regulations Art. III § 5.52 (allowing dollar stores to be located only in the General Commercial Zoning district and requiring a one mile distance between them).
CITATIONS
[1] Emily Ramirez Hernandez et al., Small Box Retail Diversity Study: City of New Orleans, City Planning Commission 18 (Dec. 2018), https://perma.cc/FNL6-EYNE.
[2] Dollar Store Impacts, Institute for Local Self-Reliance 1, https://perma.cc/ZY9Z-5YRN (last visited Jul. 16, 2020).
[3] Emily Ramirez Hernandez et al., supra note 1, at 19.
[4] Dollar Store Impacts, supra note 2, at 1.
[5] Jennifer Faubion, Food Deserts and Dollar Stores, ArcGis StoryMaps (Jan. 14, 2020), https://perma.cc/KX8A-LKMK.
[6] Id.
[7] See Dollar Store Impacts, supra note 2, at 1; Allison Aubrey, Dollar Stores and Food Deserts, Sunday Morning (Dec. 8, 2019), https://perma.cc/Y6PE-2F96.
[8] Emily Ramirez Hernandez et al., supra note 1, at 18.
[9] Charlie Thaxton, More Cities Pass Laws to Block Dollar Store Chains, Institute for Local Self-Reliance (Sep. 26, 2019), https://perma.cc/2PCE-3WED (noting Cleveland is planning to restrict dollar store sites).
[10] See, e.g. Tulsa, OK, Code of Ordinances § 42.20.060(B).
[11] See, e.g. College Park, GA, Code of Ordinances App. A §§ 1.4, 3.1.
[12] See, e.g. Atlanta, GA, Code of Ordinances Pt. III § 16-29(87) (1995), https://perma.cc/A6GW-UYQN; Wyandotte County – Unified Government, KS, Code of Ordinances § 27-340 (2019).
[13] See, e.g. Wyandotte County – Unified Government, KS, Code of Ordinances § 27-340.
[14] See, e.g. College Park, GA, Code of Ordinances App. A §§ 1.4, 3.1.
[15] See generally Atlanta, GA, Code of Ordinances.
[16] See, e.g. Tulsa, OK, Code of Ordinances § 42.20.060.
[17] See, e.g. Mesquite, TX, Code of Ordinances App. C § 3-510(D).
[18] Emily Ramirez Hernandez et al., supra note 1, at 33.
[19] Id.
[20] Dollar Store Impacts, supra note 2, at 1.
[21] See id.
[22] Id. at 2.
[23] Alec MacGillis, How Dollar Stores Became Magnets for Crime and Killing, ProPublica (Jun. 29, 2020), https://perma.cc/4PTJ-JWFG.
[24] Id.
[25] Id.
[26] Tulsa, OK, Code of Ordinances § 42.20.060(A)
[27] Id. at § 42.20.060(A)(1-5).
[28] Id. at § 42.35.050(L)(4).
[29] Id. at § 42.20.060(B).
[30] Id. at § 42.20.060(D).
[31] Id. at § 42.20.060(C)(1-3).
[32] Id. at § 42.20.060(E).
[33] Id. at § 42.20.060(F)
[34] Id. at § 42.20.060(D).
[35] Wyandotte County – Unified Government, KS, Code of Ordinances § 27-340.
[36] Id.
[37] Id.
[38] Id. at § 27-593(b)(21).
[39] Id.
[40] Id at § 27-593(b)(21)(a)(1)
[41] Id.
[42] Id.
[43] Mesquite, TX, Code of Ordinances App. C § 6-102 (1998).
[44] Id. at App. C § 3-510.
[45] Id. at App. C § 3-510(C).
[46] Id. at App. C § 5-303(B)(1-5).
[47] Id. at App. C § 3-510(C)(1).
[48] Id. at App. C § 3-510(C)(3)
[49] Id. at App. C § 3-510(C)(2).
[50] Id.; Census Tract Level State Maps of the Modified Retail Food Environment Index (mRFEI), Centers for Disease Control and Prevention, https://perma.cc/ZAW2-HSCL. (last visited Jul. 16, 2020) (describing “mRFEI” as a metric assessing the availability of healthy foods in a community).
[51] Mesquite, TX, Code of Ordinances App. C § 3-510(D).