NY TImes: Cape Cod Residents Keep the Chain Stores Out

June 8, 2010
Cape Cod Residents Keep the Chain Stores Out
By BETH GREENFIELD

PROVINCETOWN, Mass. — It was a family-owned T-shirt shop that sent Barbara Rushmore on a mission to ban chain stores from this quaint and quirky seaside town.

“Cuffy’s came to town and demolished the business of many who designed and made their own shirts in their stores,” said Ms. Rushmore, a self-described gadfly who has also championed town bans on pay toilets and cigarette vending machines. Though Cuffy’s has just two locations, both on Cape Cod, it is known for its Wal-Mart-like low prices: A recent sale at its Provincetown branch, opened in 2007, offered three hooded sweatshirts for $9.99. Its success with tourists here was instant.

“It occurred to me that, as bad as that is, imagine if we got a Burger King or McDonald’s?” Ms. Rushmore said. Stores like that would threaten the many independently owned businesses in town, she said, and compromise Provincetown’s small-town New England charm.

She drafted an amendment to the town’s zoning bylaw aimed at discouraging chain stores, or “formula businesses,” as they are legally termed. It would do this by requiring them to obtain both a permit from the Zoning Board of Appeals and site plan approval from the Planning Board.

Residents approved the amendment at the annual town meeting in April by a vote of 91 to 24, well above the two-thirds majority required. It immediately became law, though it can still be overturned by the state attorney general, Martha Coakley, whose decision is due by July 13.

The antichain store movement has been gaining momentum across the country for years, with towns like McCall, Idaho; Port Townsend, Wash.; Ogunquit, Me.; and Carmel-by-the-Sea, Calif., enacting laws that restrict such businesses. The ordinances work in one or a combination of ways: by requiring formula businesses to be approved for permits on a case-by-case basis, by not allowing such businesses to open at all in certain defined districts, by capping the number of chains allowed in the town, or by requiring chains to meet certain conditions.

Such laws are typically motivated by concerns about independent stores not being able to compete economically with large corporations, and about creative communities becoming homogenized and losing their appeal.

“Let them in, and you could wind up killing the goose that laid the golden egg,” said Stacy Mitchell, author of “Big-Box Swindle” (Beacon Press, 2006), and a staff member at the New Rules Project in Minneapolis, which advocates in favor of independently owned businesses and tracks local laws restricting chains across the country.

In the area of Cape Cod and nearby islands, Nantucket restricted chain stores in its downtown in 2006, and since then the villages of Barnstable and Centerville and the towns of Dennis and Chatham have followed suit. In April, the state attorney general approved the bylaw in Chatham, where two residents championed the cause after a Dunkin’ Donuts opened in 2009.

“The people in town were appalled,” said one of those residents, Norm Pacun, a retired lawyer. Along with Gloria Freeman, Mr. Pacun examined 50 similar bylaws around the country before presenting their own via petition, with 300 signatures, at a town meeting. “It was a combination of aesthetics and an attempt to retain the historic identity of this town,” Mr. Pacun said.

The impulse to ban chain stores is not new, said Richard C. Schragger, a professor at the University of Virginia law school. In the 1930s the rapid expansion of Great Atlantic and Pacific Tea Company grocery stores gave rise to taxes on chains to prevent unfair competition. But today’s movement, as Mr. Schragger sees it, has different motivations.

“In the ’30s, it was about economic protectionism,” he said. “Today it’s about aesthetics, traffic, things like that — particularly in resort communities or in communities with a lot of wealth.”

In her Provincetown bylaw, Ms. Rushmore said an influx of chain stores would “have a negative impact on the town’s economy” as well as its “historical relevance” and “unique character.” It names the entirety of Provincetown as a Formula Business Regulated District, and then lays out the defining characteristics of a such a business, which must be one of 10 or more branches worldwide. In addition, a “formula business” would have to meet at least three of several criteria, including having a standardized menu or array of merchandise, and requiring standardized uniforms or signage.

The town’s pre-existing formula stores — Ben & Jerry’s, Marc by Marc Jacobs and Stop & Shop currently among them — are grandfathered in.

Although regulations like Provincetown’s would seem to raise concerns about restricting commerce, Mr. Schragger said they were legal if they were couched in terms of land-use or zoning, which local governments had the power to regulate. “So if it’s a land-use ordinance, a challenge based on the commerce clause of the Constitution will probably fail,” he said.

“What these ordinances do is limit these businesses,” Ms. Mitchell said. “The laws don’t say ‘Starbucks can’t open,’ which would violate the Constitution. What they say is that Starbucks would have to create a unique coffee shop that wouldn’t be recognized as Starbucks. And, in general, this is a high enough hurdle to keep them out.”

Opinions of the Provincetown bylaw among local business owners have been mixed.

“If suddenly Home Depot and McDonald’s were to come in, it would be a different place. So I’m there in spirit,” said Frank Vasello, the owner of a deli called Relish as he wiped down a display case on a recent afternoon. “But I voted no. It didn’t feel quite right to me. I’m concerned about the capriciousness of it. And the idea that I’m going to regulate away competition makes no sense.”

Also of two minds was Howard Burchman, an innkeeper, a homeless-policy consultant and the chairman of the local planning board, which had formally recommended that the vote on this issue be delayed until more research could be done. “It’s a challenging situation,” he said. “Provincetown is a unique community district. If we have homogenization of the district, we end up losing the reason why people want to come here. But there is a difference between preserving that district and establishing protectionist barriers. And I think that’s what this bylaw does.”