A bill aimed at regulating large retailers like Walmart and Costco in Montgomery County is unconstitutional, according to the county’s top attorney, leading some of the lawmakers sponsoring the measure to declare it dead. Introduced last month by County Council President Valerie Ervin, D-Silver Spring, the bill would require retailers that are the primary occupants of buildings with a footprint of at least 75,000 square feet to make a good faith effort to enter into a Community Benefits Agreement with at least three civic organizations before opening. The topics in the negotiations can include hiring practices, operating hours, traffic control, environmental impact, noise and “any other issue that is relevant,” according to the legislation.
However, the bill is unconstitutional because it allows the County Council to delegate its lawmaking ability to private parties, like civic organizations, and because it restricts businesses enough to prevent the “economically viable use of the land,” County Attorney Marc Hansen wrote in an opinion sent to county officials Monday.
The bill also exceeds the lawmaking abilities of the council by attempting to define what constitutes a binding contract enforceable in court, said Hansen, and it violates the 14th Amendment of the U.S. Constitution’s equal protection clause by singling out businesses occupying buildings with a “footprint” of at least 75,000 square feet. Two-story buildings where each story is 50 square feet would be exempt, even if the total area is greater than 75,000 square feet.
Although those two concerns could be remedied through amendments, the first two could not be fixed without altering the bill’s purpose, Hansen said.
