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HomeMy WebLinkAboutItem 7.1 New Tobacco Sales Urgent Ord STAFF REPORT CITY CLERK File #450-20 CITY COUNCIL DATE:July 17, 2012 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager SUBJECT: Adoption of an Urgency Ordinance Imposing a Moratorium on New Tobacco Sales Prepared by John D. Bakker, City Attorney EXECUTIVE SUMMARY: The City Council will consider an Urgency Ordinance that prohibits the establishment of new uses involving the sale of tobacco products as well as the issuance of business licenses, use permits, building permits or any other land use entitlement to businesses that intend to engage in the sale of tobacco products. FINANCIAL IMPACT: None. RECOMMENDATION: Staff recommends that the City Council: 1) Receive Staff presentation; 2) Deliberate; and 3) consider the proposed Urgency Ordinance. If the City Council supports the proposed by a 4/5ths vote ordinance, the City Council would waive the reading and adopt, ,an Urgency Ordinance making findings and establishing a citywide moratorium on the establishment of new uses involving the sale of tobacco products and on the issuance of business licenses, use permits and building permits to businesses intending to engage in the sale of tobacco products. Submitted By Reviewed By City Attorney Assistant City Manager DESCRIPTION: At the City Council meeting on April 17, 2012, the City Council directed staff to prepare and process a draft ordinance amending the Dublin Municipal Code that, among other things, prohibits tobacco sales within 1000 feet of specified areas where children are often present, such as schools and parks. The City Council also directed staff to include language in the ordinance that would permit existing businesses already engaged in the sale of tobacco products to continue their operations. ITEM NO. 7.1 Page 1 of 2 At the June 19, 2012 City Council meeting, Mayor Sbranti requested that Staff prepare an urgency ordinance to enact a moratorium on new tobacco retailers. The City Attorney’s Office has prepared an Urgency Ordinance to enact a moratorium on the establishment of new uses involving the sale of tobacco products and on the issuance of business licenses, use permits, building permits or other land use entitlements to businesses intending to engage in the sale of tobacco products. This urgency ordinance would help ensure that, between now and the time that the proposed modifications to the Dublin Municipal Code take effect, no businesses will begin to sell tobacco and no permits will be issued for any new businesses that intend to sell tobacco products. This is to help ensure that no new uses or businesses begin operating in areas where the use or business will be inconsistent with the City Council’s contemplated requirements of the Dublin Municipal Code. The adoption of moratoria is authorized by Government Code section 65858. Such moratoria may be adopted to prohibit uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal and where the agency determines that it is necessary to do so due to protect the public health, safety and welfare. In this situation, the City Council would be adopting the ordinance in order to protect the public health, safety and welfare, all of which are impacted by the sale of tobacco products. The Government Code provides that moratoria may be adopted only by a four-fifths vote of the City Council, and that they are effective for only 45 days after their adoption unless the adopting agency conducts a noticed public hearing on the extension of the ordinance for an additional 10 months and 15 days. Moratoria may then be extended for an additional one year period. If the City Council adopts the attached ordinance, staff will take steps to ensure that a public hearing on an extension of the ordinance is held within 45 days of this meeting, if necessary to ensure time for the contemplated amendments to the Dublin Municipal Code to take effect,. NOTICING REQUIREMENTS/PUBLIC OUTREACH: Public noticing is not required to adopt an Urgency Ordinance. ATTACHMENTS: 1. Urgency Ordinance Imposing a Moratorium on New Tobacco Sales Page 2 of 2 ORDINANCE NO. AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN ADOPTED AS AN URGENCY MEASURE, MAKING FINDINGS AND ESTABLISHING A CITY- WIDE MORATORIUM ON THE ESTABLISHMENT OF NEW USES INVOLVING THE SALE OF TOBACCO PRODUCTS AND ON THE ISSUANCE OF BUSINESS LICENSES, USE PERMITS, BUILDING PERMITS OR ANY OTHER LAND USE ENTITLEMENT TO BUSINESSES INTENDING TO ENGAGE IN THE SALE OF TOBACCO PRODUCTS WHEREAS , the City of Dublin (“City”) has an overriding interest in planning and regulating the use of property within the City. Implicit in any plan or regulation is the City’s interest in maintaining the quality of life and the character of the City. Without stable, well- planned neighborhoods, sections of the City can quickly deteriorate, with tragic consequences to social, environmental, and economic values; and WHEREAS , the proliferation of establishments that sell tobacco may adversely affect the City’s ability to attract and retain businesses and shoppers in the City; and WHEREAS , permitting the sale of tobacco may adversely affect the City’s economic vitality, may promote the consumption and purchase of tobacco by children and minors by increasing their exposure to tobacco, may result in threats to public health, safety and welfare and may not be compatible with existing and potential uses of similarly zoned businesses; and WHEREAS , the City is in the process of developing an amendment to its Zoning provisions that would restrict the establishment of new businesses that sell tobacco; and WHEREAS , the Dublin Municipal Code is silent with regard to the regulation and location of businesses that sell tobacco; and WHEREAS , the City Council finds that the establishment of new uses involving the sale of tobacco products and the issuance of business licenses, use permits and/or building permits for businesses that sell tobacco products, would pose a current and immediate threat to the public health, safety, and welfare, since such uses could potentially create conflicts with surrounding land uses and could conflict with the City’s long-term planning goals; and WHEREAS , the California Constitution, Article XI, section 7, provides cities with the authority to enact ordinances to protect the health, safety, welfare and morals of their citizens, and zoning regulations are a permissible exercise of this authority; and WHEREAS , it is necessary for the City to study the impact such businesses may have on the public health, safety and welfare, and the need to potentially revise the City’s Zoning Ordinance; and WHEREAS , to protect the City’s investment in its planning efforts, ensure that the City’s long-term planning goals and strategies can be achieved in an effective and timely manner, and to avoid a current and immediate threat to the public health, safety, and welfare, the City proposes adopting a moratorium on the establishment of new uses involving the sale of 1 tobacco and on the issuance of business licenses, use permits and/or building permits for businesses intending to engage the sale of tobacco products; and WHEREAS , Government Code section 65858 allows the City to immediately protect and preserve the public peace, health, and welfare by prohibiting any uses that may be in conflict with a contemplated general plan, specific plan or zoning proposal that the legislative body, planning commission or planning department is considering; and WHEREAS , adoption of this Ordinance does not require review under the California Environmental Quality Act (Pub. Resources, Code, §§ 21000, et seq., “CEQA”) based on the following: (1) This ordinance is not a “project” within the meaning of Section 15378 of the State CEQA Guidelines, because adoption of a temporary moratorium has no potential for resulting in either a direct or indirect physical change in the environment. (2) This Ordinance is categorically exempt from CEQA pursuant to Section 15308 of the CEQA Guidelines as a regulatory action taken by the City pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the evaluation and adoption of contemplated local legislation, regulation and policies. NOW THEREFORE, THE CITY COUNCIL ORDAINS AS FOLLOWS, ADOPTED AS AN INTERIM ORDINANCE UNDER THE PROVISIONS OF GOVERNMENT CODE SECTION 65858 : Incorporation of Recitals. 1. The City Council finds that all Recitals are true and correct and are incorporated herein by reference. Moratorium Imposed. 2. In accordance with the authority granted the City of Dublin under Article XI, Section 7 of the California Constitution and California Government Code Section 65858, from and after the date of this Ordinance, no business may begin to sell tobacco products or establish a new use relating to the sale of tobacco products, and no business licenses, use permits, building permits, or any other land use entitlement shall be approved or issued for any business intending to engage the sale of tobacco products within the boundaries of the City. Authority; Urgency Statement 3. . This Ordinance is an interim ordinance, adopted as an urgency measure pursuant to Government Code section 65858 and is for the immediate and long-term preservation of the public peace, health, and welfare. The following facts constitute an urgency measure: the City has recently begun the process of developing amendments to the zoning provisions contained in the Dublin Municipal Code that would restrict the establishment of new businesses that sell tobacco products. However, the Municipal Code is silent with respect to regulation of businesses that sell tobacco, which are not specifically prohibited in areas adjacent to schools, public parks, or public libraries. Thus, as applications for business licenses are submitted to the City, there is no determination as to 2 whether such potential uses are consistent with the purpose and intent of the zoning provisions of the Municipal Code. Great concern has been expressed about the impact of locating, without restrictions, establishments that sell tobacco products. Unregulated siting of such establishments may be in conflict with the purpose and intent of the Municipal Code. Accordingly, there is a current and immediate threat to the public health, safety, or welfare and the establishment of uses relating to the sale of tobacco products and new businesses that sell tobacco products, and the approval of such uses and the approval or issuance of business licenses, use permits, building permits, or any other land use entitlement for businesses intending to engage in the sale of tobacco products would result in that threat to public health, safety, or welfare. In order to maintain comprehensive and sound land use planning, the City seeks to study possible amendments to the zoning provisions of its Municipal Code, use permit requirements and other land use entitlement requirements for businesses that sell tobacco products. Allowing land use entitlements for such businesses before the City has had an opportunity to update its regulations, could lead to conflicts amongst various land uses and conflicts with the City’s long-term planning goals. Establishment of New Uses Involving the Sale of Tobacco Products and 5. Issuance of Land Use Entitlements to Businesses Intending to Sell Tobacco Products Declared Public Nuisance. The sale of tobacco products by a business that is not engaged in the sale of such products at the time this Ordinance takes effect, the establishment of a new use involving the sale of tobacco products and the issuance of business licenses, use permits, building permits, or any other land use entitlement to any business intending to engage in the sale of tobacco products within the City limits of the City of Dublin, during the duration of this moratorium or any extension thereof, are declared to be a public nuisance. Violations of this Ordinance may be enforced by any applicable laws or ordinances, including but not limited to injunctions, or administrative or criminal penalties under the Dublin Municipal Code. Compliance with California Environmental Quality Act (CEQA). 6. This Ordinance is not a “project” within the meaning of section 15378 of the State CEQA Guidelines, because it has no potential for resulting in a direct or reasonably foreseeable indirect physical change in the environment. It temporarily prevents certain physical changes in the environment pending study and potential adoption of zoning amendments or policies regulating businesses that sell tobacco. Furthermore, this urgency ordinance is categorically exempt from CEQA under CEQA Guidelines section 15308 because it is a regulatory action taken by the City, in accordance with Government Code section 65858, to assure maintenance and protection of the environment pending consideration of amendments to City’s Zoning Ordinance. Severability. 7. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. 3 Effective Date. 8. This Ordinance shall become effective immediately upon adoption, if adopted by at least four-fifths vote of the City Council, and shall be in effect for forty-five (45) days from and after the date of adoption, unless extended by the City Council as provided for in Government Code section 65858. PASSED, APPROVED and ADOPTED as an Interim Ordinance of the City of Dublin at a th regular meeting of the City Council held the 17 day of July, 2012 by the following vote: AYES: NOES: ABSENT: ABSTAIN: _____________________________ Mayor _____________________________ City Clerk 785549_1.DOC;114.1001 1930232.3 4