If enacted by the D.C. Council, a bill that proposes to ban most big-box retail stores in Washington probably will be struck down by the courts. The bill, introduced by David A. Catania (I-At Large) and co-sponsored by five members of the council, prohibits stores that exceed 80,000 square feet and that devote more than 15 percent of their space to the sale of nontaxable merchandise such as groceries. Retailers that could be affected include Wal-Mart, Costco, Target, Wegmans Food Markets and others. Under the legislation, existing stores would be "grandfathered." New stores would be subject to controls over design, size, setbacks, landscaping, screening, parking, loading, lighting and vehicular access and face other site, building and operational restrictions.

But the proponents of the big-box ban didn't do their homework, because the D.C. home rule charter says that "all the powers" and "all the duties with respect to zoning" in the District are vested in the D.C. Zoning Commission.

This division of zoning power and authority was no accident. Indeed, planning and zoning were among the most controversial topics during the debate that led to adoption of home rule. The debate became quite heated, in part, because the zoning commission that existed before home rule was composed of the mayor plus the chairman and vice chairman and two other members of the city council. This composition concerned Congress because of the potential for the new government to be overly subject to political concerns and pressures. As a result, zoning was vested in a new "independent" zoning commission.

In addition, the planning function was divided between the local government and the federal National Capital Planning Commission. Further, all zoning regulations were required to be "not . . . inconsistent with the comprehensive plan for the National Capital" in which the federal planning body was to have a significant role.

To implement this system by which the D.C. Council would have no role in zoning, the home rule charter established a zoning commission as one of five "independent agencies." In addition, it required that two of the zoning commission's five members be federal representatives. The three remaining members would be appointed by the mayor with the advice and consent of the council.

According to the House report that accompanied the home rule bill, the bill's purposes were clear: to preserve and protect the interests of the federal government, to establish a form of local government responsible to the voters and "to prevent any excesses in the exercise of local governmental authority" with respect to the federal interest.

The courts have had few occasions to consider the zoning provisions of home rule. But when called on to rule, the courts have been clear: The D.C. Zoning Commission is the agency vested with the exclusive power to enact zoning regulations for the District.

A big-box store at a particular location in the city may or may not affect the federal interest. It may or may not be consistent with the comprehensive plan or be in accordance with the zoning act. Big-box retail regulations also may be good or bad public policy. Nevertheless, the D.C. Council has no authority to make this call. Such power is vested with the D.C. Zoning Commission, and if the Catania bill is enacted, the courts are likely to agree.

-- Jacques B. DePuy

was involved in the drafting of the home rule charter.

jbd@gdllaw.com