What community benefits are supposed to be versus what people think they are about

The Post editorialized against the proposed "Walmart" ordinance in Montgomery County last week, "Montgomery’s big-box bill sends the wrong signal to retailers," and today has another article about it, "Montgomery big-box bill is unconstitutional, county attorney says," where the County Counsel argues the bill is unconstitutional.

I started a blog entry about this last week, but didn't finish it. Here goes.

The proposed law in MoCo isn't unconstitutional, it's just flawed in concept and proposed execution.

I wouldn't even call it a big box bill, because it doesn't systematically focus on mitigating systematic negative economic impacts of such stores on independent retailers and commercial districts.

1. The point of community benefits agreements generally is that a developer/tenant receives monetizable benefits from density increases, zoning changes, and exceptions and variances from zoning regulations, and that the community should receive something in return for the positive changes to the economic value of the property received by the developer.

2. The point of big box review ordinances is to weigh the potential negative impact against positive impact, and ensure that the projected costs of the entry of the business are appropriately weighed in the review process, and plans and programs for mitigation provided.

-- Big-Box Ordinance and Conditional Use Permit (CUP) Tool-Kit, Midwest Environmental Advocates

-- In California, as part of environmental reviews, new developments are supposed to address issues of "urban decay" that they might cause.

From the Urban Decay Study, City of Sacramento Railyards Development Plan:

For the purpose of the assessment and consistent with the intent of the court decisions, “urban decay” is defined as the closure of retail and other stores in the surrounding area as a result of market competition and disinvestment - leaving decaying building shells in a state of sustained vacancy, long-term abandonment, repeated property damage, and/or deteriorated conditions that significantly impair the proper and safe use of the real estate. Properties in areas with higher than normal market vacancies and which have been empty and/or unused for at least three years or more are assumed to be in prolonged or sustained vacancies. An example in Sacramento would be the K-Street Mall, which has suffered urban decay – and is only now being transformed by coordinated public/private investment back to a state of economic vitality.

The point of big box ordinances is to address the potential for urban decay and mitigate it as part of the approval/disapproval process.

3. On the other hand, businesses aren't "eelemosynary" organizations--they aren't charitable.

Although there is this new kind of for profit organization called a "social benefit corporation." One is open in Takoma Park, Maryland ("Blessed Coffee in Takoma Park offers perks to community" from the Gazette). To me, there is too much effort and risk involved in creating, managing, growing, and maintaining a business to be able to sustain the effort while giving away all the profit. (It's also why member cooperatives have a difficult time staying in operation also.)

That doesn't mean you can't have a social orientation in doing your business. In fact, the underlying business/marking approach I am using for BicyclePASS is based on social change theory along with social marketing and collaborative consumption and product models. (See
"Professor Sarah Soule Explains Effective Social Movements" and "How Markets Are Made and Broken by Social Activists" from Stanford Business School Magazine.)

But, typically, wage rates and many aspects of how a business operates wouldn't be covered by the review process deriving from either one of these building regulation process.

I know that as I participate in the development of a business focused on "bicycle facilities systems integration" I don't want "the government" legislating various aspects of how we are to run our business either, as it can hamstring us.

Just as Eastern Market in DC isn't run very well based on the law that governs it, nor is the Post Office well served by being micromanaged by the U.S. Congress...

4. The proposed MoCo ordinance is flawed because it isn't construed as a law based on planning and zoning regulations based on government's "police powers" focused on maintaining the health and well being of individuals and communities so much as it is based on a belief that "businesses need to give back to the community."

Planning and zoning regulations shouldn't be about buying off community groups--giving some dribs and drabs to selected organizations (which is why various groups in DC have been bought off in favor of Walmart, because they've received charitable contributions and other benefits), it's to mitigate in a substantive manner the potential negatives generated by the entry of the business, and to monetize the value of the zoning "relief" received by the developer/tenant.

5. Communities need strong frameworks for community benefits agreements -- I've written about this in the past, "Community benefits agreements (revised)" from 2008, although in a recent conversation I had with Robin Diener of the DC Library Renaissance Project, she makes an argument that I need to write about, that community benefits processes are typically very localized, focused on the neighborhoods where the projects are being constructed, and instead should be focused on providing benefits captured by the city as a whole--and big box ordinances, as I wrote last week ("Lessons from Walmart's foray into Washington, DC").

6. The intent of the MoCo legislation is admirable, but lacks a strong basis in planning "theory" and therefore distracts from what really matters--mitigating negative impacts and ensuring a level playing field for businesses.

The process in DC is a perfect example of the failure to have strong zoning regulations, because the community "partnership" agreement negotiated with Walmart fails to provide any substantive mitigation programs and monies, even while it buys off various community groups through charitable contributions.