Agenda Item Wording:
title
Discussion and direction on potential recommended changes to the Zoning Ordinance related to Line R78 Smoke Shops (retail of cigarettes and smoke devices/paraphernalia) of the Zone Land Use Table (Chapter 17.25).
body
Deadline for Action: 11/15/2021
Submitting Department: Community Development
Contact Name and Phone Number:
Josh Dan, Associate Planner, josh.dan@visalia.city <mailto:josh.dan@visalia.city>, (559) 713-4003
Mike Olmos, Interim City Planner, mike.olmos@visalia.city <mailto:mike.olmos@visalia.city>, (559) 713-4449
Paul Bernal, Community Development Director, paul.bernal@visalia.city <mailto:paul.bernal@visalia.city>, (559) 713-4025
Department Recommendation:
That the City Council receive the staff report and presentation on potential changes related to Line R78 “Smoke Shop/Tobacco Store” (retail of cigarettes and smoke devices) of the Zone Use Table (Chapter 17.25) and direct staff to begin processing a Zoning Text Amendment to implement potential changes identified in the staff report, including incorporating comments and modifications received from the City Council, and members of the public. Revisions to be considered as part of the Zoning Text Amendment process related to “Smoke Shop/Tobacco Store” will be subject to further public hearings by both the Planning Commission and City Council.
Background Discussion:
On May 17, 2021, the City Council received a staff report and presentation related to an appeal of the Planning Commission’s approval of Conditional Use Permit No. 2021-06, a request to establish a “smoke shop” in a former convenience store located at 1410 West Houston Avenue, which is 400-feet from Houston Elementary School. During the public hearing, the City Council received comments related to concerns regarding the smoke shops proximity to an elementary school and other sensitive land uses. Although the City Council denied the appeal and upheld the Planning Commission’s approval, several Councilmembers expressed interest in staff returning to a future Council meeting with a staff report to identify potential ordinance changes that could be considered to help in reducing potential land use conflicts between “Smoke Shops/Tobacco Stores” and sensitive land uses.
Background and Discussion:
The 2017 comprehensive zoning ordinance update included the addition and definition of “Smoke Shop/Tobacco Store” as a stand-alone use. This use is only conditionally permitted in the Downtown Mixed-Use (D-MU) and Commercial Mixed-Use (C-MU) zones. Prior to the 2017 update, Smoke Shop/Tobacco Stores were not explicitly listed in the zoning ordinance and were categorized as a “retail” use. As a result of the 2017 zoning ordinance update, any new smoke shop is subject to the conditional use permit process. Existing smoke shops that were operating prior to the update are considered pre-existing non-conforming and are subject to the “grandfathered” provisions of the Zoning Ordinance (i.e., Section 17.40.060 Nonconforming Uses).
Section 17.04.030 of the Zoning Ordinance 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.”
It should be noted that retail uses such as drugstores, convenience stores, markets and grocery stores are permitted to sell tobacco products without the requirement of a CUP for tobacco so long as they do not exceed the 30% threshold as noted above.
Recently, staff has seen an increase in the number of requests to establish new “smoke shops” in the City of Visalia. To date, staff has received nine smoke shop submittals through the Site Plan Review process which resulted in seven smoke shop conditional use permit application submittals with only four having been approved by the Planning Commission. A review of Business Licenses issued for this type of use has identified a total of 15 active smoke shops operating in Visalia.
Municipal Code Sections Related to Tobacco Usage:
Title 8 of the Visalia Municipal Code (VMC) contains two chapters that address tobacco usage. Chapter 8.48 addresses smoking in private/public spaces while Chapter 8.46 addresses exposure of tobacco products to minors. Both chapters are attached for reference (see Attachments 1 and 2). The VMC provides provisions regulating where smoking is prohibited, banning the sale of tobacco products to minors, and banning the use of tobacco products in public places, such as schools. The VMC also requires any business entity selling tobacco products to store them in secured areas. Though the VMC does not provide for the outright ban of tobacco stores within the vicinity of residential uses or schools, it provides sufficient measures to limit overall exposure in public areas.
Potential Changes to Smoke Shop/Tobacco Stores:
Staff has reviewed the Zoning Ordinance to identify objective standards that could be adopted to help reduce incompatibility issues between Smoke Shop/Tobacco Stores and sensitive land uses. The following are potential changes to the zoning ordinance that would establish objective standards to reduce conflicts between sensitive land uses and Smoke Shop/Tobacco Stores.
1. 750-foot separation requirement from Schools, Licensed daycare facilities, libraries, parks, or other recreational facilities where minors congregate.
This potential consideration would prohibit Smoke Shop/Tobacco Stores from locating within 750-feet or less from the sensitive land uses listed. This is similar to the separation provisions identified in the Chapter 17.62 Adult-Oriented Businesses. If this provision had been in place, the new smoke shop within 400-feet of Houston Elementary School would have been prohibited.
2. Overconcentration Consideration.
Add language to the Zoning Ordinance limiting new Smoke Shop/Tobacco Stores from establishing themselves within 750-feet of each other. This consideration would prohibit the number of Smoke Shop/Tobacco Stores in proximity of each other. By applying language similarly found in Section 17.62.030, the minimum proximity requirements of Adult-oriented businesses, staff could provide an objective standard which can be applied to new smoke shop applications and decrease the concentration of uses having a potential adverse impact on the community.
3. Continue limiting new Smoke Shop/Tobacco Stores as conditionally permitted within the C-MU and D-MU zones.
Table 17.25.030 Line R78 of the Zone Use Matrix identifies Smoke Shop/Tobacco Stores as conditionally permitted in the C-MU and D-MU zones. Staff, if directed to proceed with zoning ordinance revisions as noted, including any additional direction provided by the City Council, will also amend the “Special Use Standards” column for Line R78 referencing any new added objective standards that will be applicable to Smoke Shop/Tobacco Stores.
Next Steps:
If directed by the City Council to proceed with revisions as outlined above or directed, staff will begin work on amending zoning text and which would then be followed by publicly noticed hearings before the Planning Commission, and City Council.
Fiscal Impact:
None.
Prior Council Action: None.
Other:
The Planning Commission conducted a public hearing on April 12, 2021, for Conditional Use Permit No. 2021-06, which was a request to permit a smoke shop at 1410 West Houston Avenue, for a site that was previously a convenience store. At the meeting the Planning Commission received the information contained in the staff report and a staff presentation, public testimony from the project applicant, and additional testimony in opposition to the proposal by a member of the public, who cited concerns with the use having a negative influence on nearby student populations that would walk by the use on a daily basis. The applicant had noted that there were no intentions to encourage minors to smoke. The applicant also added that the former convenience store sold tobacco products. The Planning Commission approved the conditional use permit by a 4-1 vote.
Recommended Motion (and Alternative Motions if expected):
recommendation
I move to direct City staff to initiate a Zoning Text Amendment to implement the changes as recommended by staff and as listed in the Work Session staff report.
end
Alternatives:
The City Council, in lieu of the recommendations provided, may direct staff to consider the following:
1. Direct staff to pursue different alternative language changes to the Zoning Ordinance as specified by Council.
2. Receive the staff report and take no further action at this time.
Environmental Assessment Status: Click or tap here to enter text.
CEQA Review: None at this time.
Attachments:
1. Visalia Municipal Code Chapter 8.46 (Exposure of Minors to Tobacco Products)
2. Visalia Municipal Code Chapter 8.48 (Smoking)
3. Visalia Municipal Code Chapter 17.25 (Table 17.25.030 Use Matrix, Line R78)
4. Sensitive Land Uses with 750-ft Buffer Map