Agenda Item Wording:
title
Consider the extension of Ordinance No. 2021-10, an interim zoning ordinance adopted as an urgency measure to regulate the location of smoke shops and tobacco shops, Citywide. (4/5’s approval of the Council required for passage.)
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Deadline for Action: 1/18/2022
Submitting Department: Community Development
Contact Name and Phone Number:
Paul Bernal, Community Development Director, paul.bernal@visalia.city <mailto:paul.bernal@visalia.city>, (559)713-4025
Department Recommendation:
Staff recommends that the City Council extend Ordinance No. 2021-10, an interim ordinance, as an urgency measure to regulate the location of smoke shops and tobacco stores citywide.
Summary:
On December 6, 2021, the City Council Ordinance No. 2021-10. The interim ordinance was considered under Government Code section 65858, which permits the adoption of interim zoning ordinances as an urgency measure upon findings that there is a current and immediate threat to the public health, safety, or welfare.
The City Council made the findings, as stated in the attached ordinance, that these uses pose an immediate threat to the public health, safety, or welfare. The City Council finds and declares that there is a current and immediate threat to public health, safety, and welfare, caused by youths using tobacco products that requires the adoption of the proposed interim zoning ordinance while a more specific amendment to the Zoning Ordinance is reviewed in the normal process by the City. Furthermore, the City Council finds and declares that approving additional conditional use permits to allow additional Smoke Shops/Tobacco Stores near specified sensitive uses or within close proximity of an existing Smoke Shop/Tobacco Store would potentially be in conflict with the stated goals of the City of Visalia General Plan and Zoning Ordinance to preserve and promote the public health, safety, and welfare of the city by creating conditions that would increase the visibility and usage of tobacco products within the community making it more likely that youth might utilize tobacco products.
However, pursuant to Government Code section 65858, the interim ordinance voids after 45 days after its adoption unless extended by a subsequent 4/5 approval by the legislative body after a public hearing with notice of hearing published at least 10 days prior to the hearing along with posting the notice of hearing at least 10 days before the hearing in at least three public places. The interim ordinance is set to expire on January 20, 2022. A public hearing notice was published in the Visalia Times Delta, and the hearing notice was posted in three public places for the January 18th hearing date.
Staff is requesting the City Council extend interim Ordinance No. 2021-10, for an additional 10 months pursuant to Government Code section 65858. Staff will be bringing the zoning text amendment through the public hearing process by early 2022 with the anticipated public hearing date for Planning Commission on February 28, 2022, and City Council on March 21, 2022. The hearing dates for both the Planning Commission and City Council meetings are beyond the initial 45 days the urgency ordinance was adopted.
Staff’s request for the extension on the interim ordinance is to facilitate the completion of staff’s analysis on potential changes to the zoning ordinance related to Smoke Shops and Tobacco Stores. These potential permanent changes will be considered through the normal process to formally approve the proposed regulations after review by the Visalia Planning Commission and then the Visalia City Council. Those permanent regulations would be subject to further modification or disapproval during that process.
Background Discussion:
During the November 15, 2021, City Council work session, the City Council received a staff report and presentation on potential changes to the City of Visalia Zoning Ordinance. Specifically, potential regulations on the allowed locations of a Smoke Shop/Tobacco Store were discussed. During this meeting, City Council indicated that additional regulations represent an urgent public policy that should be made without delay. In response to this direction from City Council, a proposed interim ordinance was adopted by the City Council on December 6, 2021.
The City of Visalia Zoning Ordinance, in Section 17.04.030 defines Smoke Shop/Tobacco Store as follows: “Business with sales of tobacco, either loose or prepared as cigarettes and products for smoking constituting more than thirty (30) percent of gross sales and/or thirty (30) percent of net lease area.” A Smoke Shop/Tobacco Store is currently allowed under the current City of Visalia Zoning Ordinance in the Commercial Mixed Use (C-MU) and Downtown Mixed Use (D-MU) within the City of Visalia with a Conditional Use Permit (CUP) issued under Visalia Municipal Code Chapter 17.38. It should be noted that under the current Zoning Ordinance this type of business is not permitted “by right” and is only allowed with a conditional use permit.
In recent years, the City of Visalia has seen an increase in requests for CUPs to operate a Smoke Shop/Tobacco Store. In a recent instance, such a usage was proposed within 400 feet of an elementary school. The City of Visalia Zoning Ordinance considers schools a sensitive usage and restricts some types of activities within specified distance of a school. That proposed use was approved because the current Zoning Ordinance is silent regarding this type of commercial activity near schools. The City Council, during the November 15, 2021 meeting, considered potential zoning ordinance changes that could place restrictions on proximity of this type of use from sensitive land uses and determined that additional regulation would be in the interest of the public health, safety, or welfare.
Data from the Centers for Disease Control (CDC) indicate that most persons that smoke began by the age of 18. Data from the CDC also indicate that social and physical environments, seeing other youth use tobacco products, and advertising of tobacco products can increase the likelihood of youths using tobacco products. Concerns have been raised that allowing Smoke Shops/Tobacco Stores near where youth congregate or for such stores to be located in close proximity can increase their visibility. Smoke Shops/Tobacco Stores are focused on the sale of tobacco products and these types of stores, by their operation and normal business practices, raise the visibility of tobacco products. Increased visibility can increase the likelihood of youths using tobacco products, which is a threat to the public health, safety, or welfare.
In order to avoid the potential threat that the approval of a conditional use permit allowing a Smoke Shop/Tobacco Store near places where youth congregate or in close proximity to such stores, the following regulations were adopted on an interim and immediate basis:
A. There shall be a 750-foot separation requirement for Smoke Shops/Tobacco Stores from schools, libraries, licensed daycare facilities, parks, or other recreational facilities that are privately or publicly owned where minors congregate.
B. Smoke Shops/Tobacco Stores shall not be permitted to overly concentrate in one area. Over concentration shall be presumed to apply when a new Smoke Shop/Tobacco Store is sought to be opened within 750-feet of a currently permitted and operating Smoke Shop or Tobacco Store.
The proposed restrictions would not represent a moratorium or ban on the sale of tobacco products. The ordinance would also not impact existing businesses that are operating under conditional use permits. The regulations are intended to reduce the visibility of tobacco products, particularly in areas where minors congregate. These regulations are intended to be interim while permanent regulations are discussed in more detail through the standard process for zoning text amendments.
Fiscal Impact:
None.
Prior Council Action:
• On November 15, 2021, a Work Session item was presented to City Council and direction was provided regarding potential changes to be considered to the zoning ordinance related to Shop Shops and Tobacco Stores.
• On December 6, 2021, the City Council adopted Ordinance No. 2021-10, an interim zoning ordinance to be adopted as an urgency measure to regulate the location of smoke shops and tobacco shops, Citywide.
Other: None.
Alternatives:
1. Revise or decline staff’s request to extend interim Ordinance No. 2021-10.
Recommended Motion (and Alternative Motions if expected):
recommendation
I move to extend Ordinance No. 2021-10, an interim zoning ordinance urgency measure to regulate the location of smoke shops and tobacco shops, Citywide.
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Environmental Assessment Status: None.
CEQA Review:
None.
Attachments:
1. Ordinance No. 2021-10