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ACT. 1.2Q~~7 6:SOpM RiCKERTOV Ho`omalu Hawaii's Testimony Regarding Bill No. 167 October 1, 2007 Page 2 of 4 First, the Proposed Ordinance would restrict an undesirable anclhtgh-impact use t^p: I `te "superstore." This use t}~pe iswell-defined by the Proposed Ordinance, it addresser, ttn r knowledge is the only "superstore" business model that has been implemented els~~Ral. ~a, aT the use-type closely correlates to the multiple empirical studies that have identified the substantial harm introduced by such "superstores." Specifically, empirical studies o :r "superstores" have shown that, among other things, "superstores" (a) tend to cause disproportionate trttffic impacts to the communities in which they are established, ar d (''.1 promnte the closure of other anchor tenant-type stores -leading to conditions ider-i.`:7: d. as "urban decay." The Proposed Ordinance does not target Wal-Mart, Costeo, Target ur 5;:fe.h•a. but rather prevents any company from developing large-scale, high-SKU, full gzocee-1• superstores that have been shown to be detrimental to the health, safety and quality . i° e it ' comrrlunity. Second, the use of three distinct attributes of what constitutes a "superstore" -total l: or aree, total SKUs, and substantial grocery space -is effective because it addresses the eri~ii (i? "superstore" business model. Furthermore, it has withstood aggressive constitutioru~l ;ciallen:=e in both the United States federal courts and state courts and therefore can be adop :ec` 1 ~ Council with confidence. The use of total floor azea as an attribute of a "superstore" is consistent with the ach s.:;ize of "superstores" operated by a variety of companies on the mainland. These "superstore ~r~e as in excess of 90,000 square feet, with most exceeding 200,000 square feet. The use of SKUs as an attribute of a "superstore" is consistent with the actual nur,~~be.. cr' SI<l.!;; of "superstores" - wlvcl3 typically cant' upwards of 35,000 5KUs. Importantly, inr,'.u z:on of ;lug. attribute in the Proposed. Ordinance will serve to restrict superstores without similarl~• proltib tin<.; lower-impact "warehouse club" stores such as Costeo Wholesale and Wal-Mart's "f;a s Ch: cl ` store<., large grocery stores, or large home intprovement-type warehouse stores. tyI i'ral "superstore" carries upwards of 35,000 SKUs, while these other types of establislmet is cam less titan 20,000 SKUs. The use of floor area used for grocery as an attribute of a "superstore" is consistent `i flie relationship of grocery to total product offerings of all existing "superstores." Thy terstc~~ e'" business model appears to use ]ow-margin grocery items as a means of driving exCr: 1_nary traffic and contributing to the serious congestion problems that are created. PinaLy, ordinances similaz to the Proposed Ordinance have been upheld by state an +~.e:cai courts upon constitutional challenge. See Wal-Mart Stores. Inc. v. Citv of Turlock. & Ca1.App.4th 273 (2006), review denied lily 12, 2006; see also Wal-M Stores.u ;_Cit~,;lY' Turlock, 483 F,Supp.2d 987 (E.A.Cal. 2006) (collectively, the "Turlock Cases") Tur.:~:~k Cases demonstrate that the Proposed Ordinance is reasonably related to the public; k;h, saf : I;~ and welfaze and will therefore withstand constitutional challenge. Although it is :o- ivable Ilu:t superstore retailers could devise a new or modified format to circumvent the Prol o ~ ; Ordinance, the Council can pass any number of new ordinances that arc tailored t ~ v aut ..;:1, BICKEATON LEE • DANG • SULLIVAN n ?NIIFD tinlllltt tow ,naiN[R[NIP Tupa F3aaacia] Center, Port Street 7bwer • 745 FDR Strctt. Suite RO7 ~ Honolulu, Hawaii 9fi8: i Phone: 804.599.3811 Fax: 808.333.2467 Web: www.aSDS.cam