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Home My WebLink AboutCOM 0032.051 2006-2008 Murashige, Laura From: David Paulson [paulson@bsds.com] Sent: Monday, September 17, 2007 5:54 PM To: counciltestimony@co. hawai i. hi. us Subject: Testimony for the Hawaii County Council Meeting of 09-19-2007; c,, ; ~ " Attachments: 2007-09-17 Hawaii County Council Testimony.pdf 2007-09-17 Hawaii County Counc... Attached hereto is a copy of Ho'omalu Hawaii's testimony regarding Bill No. 167 for an ordinance to amend Chapter 25, Zoning Code, Hawaii County Code 1983 (2005 Edition, as Amended), relating to retail establishments. This testimony is submitted to the Hawaii County Council for its meeting scheduled on September 19, 2007. Regards, David A. Paulson, Esq. Bickerton Lee Dang & Sullivan Topa Financial Center, Fort Street Tower 745 Fort Street, Suite 801 Honolulu, HI 96813 808.599.3811x512 808.533.2467 (fax) This electronic message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and protected by law, including the attorney-client privilege and/or the attorney work product privilege. If you are not the intended recipient of this e-mail, you are cautioned that use of its contents in any way is prohibited and may be unlawful. If you have received this communication in error, please notify the sender immediately by e-mail or telephone and return the original message by a-mail to the sender or to postmasterC~bsds.com. Thank you. comrn: No: 32.5/ i Rsf. To: 1~r w ~ Ref. Date 3`T 19 2007 131CK1:RTON LEE DANG ~ SULLIVAN A LIMITED iIA IVIi iT1' tAW PA RTN CRS iI II' September 17, 2007 Via Facsimile (808-961-8912) and E- Mnil (connciltestimony@co.hnivaii.hi,ns) TO: Members of the Hawaii County Council 25 Aupmii Street Hilo, Hawaii 96720 SUBJET: Ho`omalu Hawaii's Testimony Regarding Bill No. 167 for an Ordinance to Amend Chapter 25, Zoning Code, Hawaii County Code 1983 (2005 Edition, as Amended), Relating to Retail Establishments DATE OF MEETING: September 19, 2007 TIME OF MEETING: I :001'.,vt. Dear Members of the Hawaii County Council: This testimony is submitted by David A. Paulson, Esq., wlto resides at 3254 Hooluhi 5treei in Honolulu, Hawaii 9681.5. I am an associate with the law firm of Bickerton Lee Dang & Sullivan ("BEDS"). BEDS is legal counsel to Ho`omalu Hawaii, a statewide grassroots coalition that opposes the development of superstores in Hawaii. IIo`omalu Hawaii has members who reside on all the major Hawaiian Islands, including many members who reside in the County of Hawaii. I am submitting this testimony on behalf of Ho`omalu Hawaii. Bill No. 167 for an ordinance to amend the Zoning Code to prohibit "superstores" in all zoning districts (the "Proposed Ordinance") is necessary and proper for the following three reasons. First, the Proposed Ordinance does not prohibit specific users or corporations, but rather prohibits an tmdesirable and high-impact use type -die "superstore." This use type is well- defined by the Proposed Ordinance and correlates to empirical studies revealing that the introduction of such uses tend to (a) cause disproportionate traffic impacts to the communities in which they are established and (b) promote the closure of other anchor tenant grocery and box stores -leading to conditions identified as "urban decay." The Proposed Ordinance does not target Wal-Malt, Costco, Target or Safeway, but rather prevents any company from developing large-scale, high-SKU, full grocery superstores that will detriment the health, safety and quality of life in the community. Second, the use of the stockkeeping unit ("SKU") element in defining the term "superstore" ensures that the Proposed Ordinance is not overly broad and does not prohibit lower-impact and more-desirable "warehouse club" stores such as Costco Wholesale and Wal-Mart's "Sam's Club" stores. The use of a 25,000 SKU threshold is based on sound retail principles. While establishments such as warehouse clubs typically have 8,000-13,000 SKUs and traditional grocery stores, supermtukets and even big box retailers such as regular Wal-Mart Discount Stores and Lowe's Home Improvement warehouses typically carry 15,000 to 20,000 SKUs, Topn Financial Center, Dort Street 'T'ower • 7#5 Fort Street, Suite S01 • Honolulu, Hawaii 96817 Phone: ROA.599.3R1 t Fns: $08.53J.2A69 larch: wrwa-RSDS.eom Ho`omalu Hawaii's Testimony Regarding I3i11 No. 167 September 17, 2007 Page 2 of 2 superstores such as Wal-Mart Supercenters and Super-Targets -that typically exceed 200,000 square feet -catty upwatds of 35,000-40,000 SKUs. By limiting the number of grocery SKUs to less than 25,000, large scale retailers are forced to eliminate the perishable items from their grocery inventory. Perishables, like milk and eggs are the high traffic generating items on which superstores rely to bring in the foot traffic that supports the massive scale for which these stores are known. While the numbers may seem arbitrary, they have been well researched and proven to eliminate the format that makes these stores profitable without impacting other retailers, such as Nordstrom, Macys and Costco, which also have a large format store but do not generate the traffic or the economic impacts that go hand-in-hand with superstores. Finally, ordinances that are nearly identical to the Proposed Ordinance are becoming commonplace in other jurisdictions and have been upheld by state and federal courts when challenged as a valid exetcise of the municipality's police power. For example, several California cities and cotmties have enacted nearly identical ordinances in response to the introduction of superstores by Wal-Matt and Target: In May 2003, the Cily of Hawaii Gardens (population 15,000), a small suburb in Los Angeles County, adopted an ordinance prohibiting superstores. ¦ In early 2004, the City of Turlock California (population 70,000) enacted a superstore prohibition ordinance. Wal-Mart, who had announced plans to develop a 24 hour "Supercenter" superstore in Turlock, Gled suit challenging the constitutionality ofthe ordinance iu State and Federal Court. Wal-Mart lost both suits and a published opinion from the California Fifth District Cowt of Appeal upheld the ordinance as within the scope of "1'urlock's police power. See Wal-Malt Stores. Inc. v. City of Turlock, 138 Ca1.App.4th 273 (2006), review denied July 12, 2006; ,tee also Wa1-Mart Stores, Inc. v. Citv of Turlock, 483 F.Supp.2d 987 (E.D.CaI.2006). ¦ In 2006, the eastern San Francisco Bay Area city of Livermore (population 80,000) and the Central Valley city of Stockton (population 290,000) - a notoriously pro- development city that was home to the first northern California Wal-Mart Supercenter superstore -enacted zoning ordinancesthat completely banned superstores. Thus, superstore ordinances that are nearly identical to the Proposed Ordinance have been utilized by municipalities that have already endured the ramifications of superstore development within their boundaries as well as by municipalities that are concerned about the introduction of superstores within their boundaries. The County has the opportunity to be proactive and prevent the development of superstores before the first superstore is constructed and its deleterious effects are felt. Thank you for your time and attention to this testimony. r---~,. R David A. Paulson, Esq. BICK[RTON LG[ RANG +SUC.LIVAN ! 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