C O N T E X T 1 3 6 : S E P T E M B E R 2 0 1 4 43 CAROLYN SHELBOURN Formula business ordinances on Main Street Some towns in the USA are seeking to protect the character of their traditional main streets through the use of a very local form of planning law, the formula business order. Much has been written in recent years about the impact of chain businesses and modern shop designs on the appearance of the traditional high street. Although design guidelines can be useful as a means of promoting traditional shopfront design, these do not have the force of law – although this is one area where neighbourhood development orders (NDO), introduced under the Localism Act 2011, may be useful. The town of Cockermouth in Cumbria is considering the adoption of an NDOwith the aim of encouraging the replacement of modern shopfronts and non-traditional windows and doors on dwelling houses. Some towns in the USA are also seeking to protect and improve the character and appearance of their traditional ‘main streets’ through the use of a very local form of planning law, the formula business order (FBO). In the USA there is no national planning legislation. Planning controls are determined by individual local authorities, giving them considerably greater powers than their English equivalents.Twenty three towns in the USA have now adopted FBOs, with several more actively considering their adoption. Interestingly, in many towns it has been members of the community rather than local small business owners who have demanded that their local town council pass an FBO to protect ‘their’ town and its local businesses. The first FBO was adopted in the 1980s by Carmelby-the Sea in California. Although many of the towns which today have an FBO are in that state, their use has now spread across the USA, with FBOs in use in states as widespread asWashington State, Rhode Island, Texas and Maine. The towns choosing to adopt FBOs tend to have a main street shopping area served by Mom-and-Pop businesses, with traditional, individual and often quirky shop fronts. In many cases the stated aim of the FBO is to retain the visual appearance of the area: the FBO adopted by the town of Coronado in California notes that it is one of the ‘very precious few traditional towns’ which is still much as first designed, and that formula businesses could detract from the appeal of the streetscape. Similarly, the ordinance of Solvang in California, notes the unique character of the town with its Danish architecture and individualised shops and restaurants. The historic or individualistic nature of many of these towns has made them attractive to visitors and the economy of many is dependent on the tourist dollar.This is explicitly recognised in some of the FBOs. For example, in San Juan Bautista in California, the home of a Mission Church founded in 1797 and the last remaining Spanish Plaza in California, the FBO adopted by the town refers to the fact that preservation of the existing character and scale of the commercial and historic districts is vital to attracting visitors. Although local residents may wish their councils to adopt an FBO in the hope that this will prohibit formula and chain businesses from opening in their town, legal restrictions mean that, however much the local council and the community may wish to do so, the FBO can not simply prohibit all chain stores from operation in the town, as this would offend what is usually called the ‘dormant commerce’ clause of the US Constitution, and render the ordinance invalid.1 However, although it can not prohibit formula and chain businesses from opening in the town, the FBO can require any formula business wishing to do so to forego all the formulaic features of their business: design; signage, even staff uniforms and menus, and this can prove to be a considerable deterrent. In addition to validity, laws require certainty. The ordinance will need to define what is to be legally controlled.The most important determining factor will be often be that the businesses have the same owner, but as some chain businesses (such as Subway) operate on a franchise basis, those drawing up FBOs may need to Pacific Grove, California
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