Chapter 6.2
Food Security and Sovereignty

• ALL
• Remove Code Barriers
• Create Incentives
• Fill Regulatory Gaps

Grocery Store Development in Recognized Food Deserts

INTRODUCTION

As supermarkets and grocery stores move farther from city centers in an effort to find additional space,[1] food deserts are often left behind. An estimated 23.5 million Americans live in food deserts.[2] Defined as an area with “limited access to a variety of healthy and affordable food,”[3] food deserts are influenced by a variety of factors including income level, distance to supermarkets, and vehicle access.[4] Given the diversity among local communities, state and local governments often implement their own methods for designating areas as food deserts.[5] For example, Baltimore, Maryland, designates a food desert as an area in which:

“(i) the distance to a supermarket is more than ¼ mile;

(ii) the median household income is at or below 185% of the Federal Poverty

Level, as measured by the most recent 5-year estimate of the U.S. Census

Bureau’s American Community Survey;

(iii) over 30% of households have no vehicle available, as measured by the

most recent 5-year estimate of the U.S. Census Bureau’s American

Community Survey; and

(iv) the Healthy Food Availability Index average score of all food stores is low,

as measured by the Johns Hopkins Center for a Livable Future.”[6]

Federal and state governments have adopted several programs to address food deserts so that more people have access to healthy, nutritious food. The federal government, for example, seeks to attract private investment in food deserts through the U.S. Department of Treasury’s New Markets Tax Credit Program,[7] while some states have enacted legislation to attract full-service supermarkets to improve the quality of the foods available in food deserts.[8]

One way local governments can help alleviate food deserts is by removing certain barriers in their zoning codes that discourage supermarkets, such as in the examples below from New York City and Philadelphia. Local governments can adopt regulations that give grocery stores different floor-area-ration (FAR) requirements, density bonuses, or height increases to help make development more feasible in certain areas.[9]  Regulations can also lower the amount of parking that is required for grocery stores to reduce a developer’s costs.[10] Often times these barriers can be incorporated into the definition of grocery store and other areas of the code.[11]

Local governments can also provide less restrictive definitions of permitted stores in order to eliminate as many barriers as possible.[12] For example, Burleson, Texas allows convenience stores in Neighborhood Service Districts (NS), which are designed to meet the daily needs of the citizens in that neighborhood.[13] Grocery stores are not included in the list of acceptable uses of NS Districts. However, Burleson defines convenience stores as “small neighborhood grocery stores . . . whose purpose is to serve the immediate neighborhood.”[14] Defining “convenience stores” in a less restrictive way opens the possibility for small and local stores to provide fresh and healthy food to those living in the surrounding neighborhood.

In addition, local governments can seek to provide tax credits for grocery stores, such as in the example below from Prince George’s County. Local codes may include specific definitions in order to target areas that have been designated as food deserts.[15] These specific definitions ensure that tax credits incentivize building in food deserts, while restricting the potential for abuse of the credits. The tax credits can also have set lengths to ensure they are useful in getting the grocery store off the ground, but not overly burdensome on the local government in terms of lost tax revenues.[16]

EFFECTS

Overall, removing barriers and incentivizing grocery stores to open in food deserts can improve food security and promote food sovereignty.[17] In so doing, grocery store development can improve the health of the residents in the area. The Food Sovereignty Alliance defines “food sovereignty” as the right to “healthy and culturally appropriate food produced through ecologically sound and sustainable methods,” and the right to “define . . . food and agricultural systems.”[18] Further, food sovereignty focuses attention on those who “produce, distribute, and consume food,” rather than focusing on markets and corporations.[19]

People living in food deserts often lack access to fresh, healthy food which can lead to serious diet-related health problems such as obesity, diabetes, and cardiovascular disease.[20] As a result, people living in food deserts often have a shorter life expectancy than those outside food deserts.[21] Encouraging grocery stores can help local governments deal with these potential issues. Studies have shown that access to a supermarket can lower the obesity and overweight rate of the surrounding area.[22] This is further supported by findings that “higher BMI was significantly associated with living more than a half mile from the nearest grocery store.”[23]

Encouraging grocery stores in areas classified as food deserts could also help the local economy. Grocery stores can create local jobs. For example, a “statewide public-private initiative to bring new or revitalized grocery stores to underserved neighborhoods in Pennsylvania . . . created or retained 4,860 jobs in 78 underserved urban and rural communities throughout the state.”[24] In addition to providing direct jobs, a new grocery store also supports existing jobs at food suppliers due to increased demand.[25]

As mentioned above, increasing the accessibility of local grocery stores promotes food sovereignty. Local governments and communities are uniquely situated to give market access to local producers and increase local food sovereignty by reducing the number of food deserts. Increasing the availability of grocery stores increases local food sovereignty; providing access to healthy and affordable food in local neighborhoods stabilizes both the community and the food sovereignty system.[26]

In addition to food deserts, food swamps are neighborhoods “where fast food and junk food inundate healthy alternatives.”[27] Research on food swamps has shown that increasing the flow of healthy foods into a neighborhood “may be tempered by the continued accessibility of unhealthy foods”—which abound in food swamps.[28] Local zoning ordinances could be used to limit access to unhealthy food while incentivizing healthy food retailers in underserved neighborhoods (for a brief specifically focused on fast foods and drive throughs see Prohibit or Limit the Use of Drive-Through Services).[29]

EXAMPLES

Philadelphia, PA

Philadelphia, in conjunction with the Pennsylvania Fresh Food Financing Initiative, offers a package of zoning incentives through its Fresh Food Market Bonus.  To receive these benefits, stores must be designated as fresh food retailers.[30] This means they have a minimum of 1,200 square feet of fresh food market use and the fresh food area must be located on the ground floor while accessible through a separate entrance along the side of the building facing the primary street.[31] Though not confined to food deserts, this program is designed to give residents across the city access to healthier foods by removing zoning barriers that make grocery store development less profitable.

In districts where there are floor area limitations on retail uses, fresh food markets can exceed those limits by up to 50 percent of the lot area.[32] In zoning districts governed by floor area ratio, buildings with fresh food markets are allowed one additional square foot of floor area for each square foot of area occupied by the market, up to a maximum of 25,000 square feet.[33] For zoning districts regulated by height, a building with a fresh food market may exceed the maximum building height of a zoning classification by up to 15 feet.[34] Throughout the city, the first 10,000 square feet of a fresh food market’s floor area is exempt from off-street parking minimums.[35]

To view the provision see Philadelphia, PA, The Philadelphia Code § 14-603(7) (2012).

Prince George’s County, MD

Prince George’s County attempts to address the issue of food deserts through tax credits. The County provides a credit against the real property tax on grocery stores in “grocery store focus areas.”[36] In order to ensure the tax achieves the goal of helping solve the food desert issue specifically, the code provides targeted definitions for the tax.[37] In order to be considered a grocery store, a business must primarily sell food to the general public to be consumed off site and 20 percent or more of the sales must be from fresh produce, meats, or dairy.[38] Additionally, the section defines grocery store focus area as an area designated to be a food desert or a vacant space that was a grocery store, or is part of a well-established shopping center.[39] These definitions allow the County to ensure that the tax credit will not be abused. As for the credit itself, it is set equal to “75% of the amount of property tax imposed on the increased assessment” attributable to expansion of, construction on, or reuse for grocery store purposes.[40] The credit expires after 10 years, or if the business stops grocery operations.[41]

To view the provisions see Prince George’s Cty., MD, Code of Ordinances §§ 10-310, 311 (2014).

New York City, NY

The City has addressed the issue of food deserts through the New York City Food Retail Expansion to Support Health Program (FRESH), which facilitates “development of FRESH food stores that sell a healthy selection of food products.”[42] FRESH benefits are available to stores that are located in pedestrian-oriented local shopping districts in certain neighborhoods throughout the city.[43] FRESH achieves its goal of facilitating the development of grocery stores through a few zoning incentives.

First, the code provides incentives to developers building a FRESH food store. If a store is located within a mixed-use building, the developer may exceed the maximum space for other uses.[44] For example, one additional square foot of residential floor area is allowed for every square foot occupied by the FRESH food store, up to 20,000 square feet.[45] The zoning regulation also allows for an increase in the maximum height of a building by 15 feet, so long as there is a FRESH food store in the first story.[46]

Second, the code can alter parking requirements to make development more affordable. As part of FRESH, stores in certain districts are subject to lower parking requirements, requiring one parking space for every 1,000 square feet of floor area.[47] The City Planning Commission may also authorize separate reductions in required parking if certain conditions are met.[48]

To view the provisions see New York City, NY, Zoning Resolution §§ 63-00 – 63-60 (2009).

ADDITIONAL EXAMPLES

Baltimore, MD, Baltimore City Code art. 28 § 10-30 (2018) (creating Food Desert Incentive Areas which provide tax credits to supermarkets in the area defined as a “Food Desert”).

ADDITIONAL RESOURCES

Samuel M. Berman, The Economic Impact of New Grocery Store Development: Studying the Effects of Grocery Store Development in Underserved Communities (May 2012), https://perma.cc/3P3W-6YXQ.

Emily M. Broad Leib, All (Food) Politics is Local: Increasing Food Access through Local Government Action, 7 Harv. L. & Pol'y Rev. 321 (2013), https://perma.cc/9D9Z-M8SZ.