Report Prepared by: Kim Espinosa, Planning Manager, Development Services Department
Title
SUBJECT: Public Hearing to Reconsider Introduction of an Ordinance Amending Section 20.44.160 of the Merced Municipal Code Regarding Tobacco Sales Near Schools and Adoption of a Categorical Exemption (Zoning Ordinance Amendment #21-03), as Requested by Ashley Investments
REPORT IN BRIEF
The City Council will reconsider introducing an Ordinance, which failed to pass at the October 18, 2021, City Council meeting, amending Section 20.44.160 of the Merced Municipal Code Regarding Tobacco Sales Near Schools, which would more closely match the regulations for Commercial Cannabis Permits and allow for exceptions to be made under certain circumstances for tobacco retailers near youth-oriented facilities.
RECOMMENDATION
City Council - Adopt a motion:
A. Adopting a Categorical Exemption (Environmental Review #21-24); and,
B. Introducing Ordinance 2535, an Ordinance of the City Council of the City of Merced, CA, amending section 20.44.160 “Tobacco Sales Prohibited Near Schools” of the Merced Municipal Code regarding tobacco sales near schools and other sensitive uses.
Body
ALTERNATIVES
1. Approve the Zoning Ordinance Amendment as recommended by the Planning Commission and Staff; or,
2. Modify the Zoning Ordinance Amendment with specific modifications as spelled out in the Council motion; or,
3. Deny the Zoning Ordinance Amendment; or,
4. Request additional information (as specified in the Council motion); or,
5. Continue the item to a future City Council meeting (date and time to be specified in Council motion).
AUTHORITY
Chapter 20.80 of the Merced Municipal Code spells out procedures for amending the Zoning Ordinance.
CITY COUNCIL PRIORITIES
None
DISCUSSION
Previous City Council Meeting and Action
On October 18, 2021, the City Council held a public hearing to consider introduction of the Zoning Ordinance Amendment #21-03. One person, the applicant, testified in favor of the Ordinance and one email was received in opposition (Attachment 1). The motion to introduce the Ordinance failed by a 3-4 vote. On November 1, 2021, Council Member Shelton asked that the matter be brought back to the City Council for reconsideration. The City Council then voted to bring the item back at a duly noticed public hearing.
At the Council meeting, there seemed to be some confusion regarding whether this Ordinance would approve the applicant’s specific project or not. As currently adopted, Merced Municipal Code Section 10.44.160 does not allow for exceptions to be granted for new tobacco retailers within 1,000 feet of schools and other sensitive uses. If the Ordinance is amended as proposed, it would allow for exceptions to be made on a case by case basis for new tobacco retailers within 600 feet of day care centers, youth centers, libraries, and public parks through a Conditional Use Permit process, including public hearings, granted by the Planning Commission. (No exceptions would be available for new tobacco retailers within 1,000 feet of schools, however.) The Ordinance itself would not adopt the applicant’s project; the applicant would still have to apply for a conditional use permit from the Planning Commission. It should also be noted that the Ordinance applies Citywide and City staff has received inquiries from other tobacco retailers in addition to the applicant who have expressed interest in being able to apply for exceptions.
Project Description
Zoning Ordinance Amendment #21-03, as requested by Ashley Investments, would modify the City’s regulations regarding tobacco sales near schools and other sensitive uses (MMC 20.44.160) to more closely match similar requirements regarding Commercial Cannabis Business Permits. This would include prohibiting tobacco sales within 1,000 feet of schools (same as the current requirement) but reducing the required distance from other sensitive uses (day care centers, youth centers, libraries, and public parks) from 1,000 feet to 600 feet and allowing for exceptions with a Conditional Use Permit granted by the Planning Commission for tobacco sales near other sensitive uses (not including schools). The changes would also include using the same list of schools adopted by the City Council for cannabis permits for tobacco sales.
Background
In 2015-16, when the City was preparing the comprehensive update of the Zoning Ordinance, the City’s Zoning Ordinance Task Force considered a request from the Merced County Health Department to add a provision to the Code to prohibit the sale of tobacco within 1,000 feet of schools and other areas where children gathered based on studies that showed that exposure to tobacco advertising can make children more likely to try tobacco products. The Task Force recommended that MMC 20.44.160 be added to the draft Zoning Code. The Planning Commission, as part of its recommendation on the Zoning Ordinance, also supported its inclusion, and the provisions were in the final version of the Zoning Ordinance adopted by the City Council, that became effective in October 2016.
In 2021, Ashley Investments, represented by Isaac Sargiz, submitted a request to amend the ordinance (see letter and exhibits at Attachment 1) in order to allow for exceptions in the Code for uses within 600 feet of parks, day care centers, youth centers, and libraries. This would allow Ashley Investments to develop a 2.8-acre parcel at the southwest corner of R Street and Loughborough Drive with a gas station and convenience market, including tobacco sales. This property is 1,158 feet (over 1,000 feet) away from the nearest school, Rivera Elementary and Middle Schools, but is 472 feet (less than 600 feet) away from Fahrens Park. The applicant has indicated that the development is unlikely to move forward without an option to allow tobacco sales.
Proposed Changes to the Code Regarding Tobacco Sales Near Schools
The proposed changes would modify the regulations regarding tobacco sales near schools and other sensitive uses to more closely match the City’s regulations for Commercial Cannabis Business Permits since the concerns regarding exposure to cannabis sales and tobacco sales to school children are similar. The City also has a web-based tool that allows property owners who are considering cannabis businesses to determine if their parcels are within the prohibited distance from schools and other sensitive uses. It would be helpful if the regulations matched so that the same tool could be used for tobacco businesses as well.
The proposed changes would also allow exceptions to be granted with a conditional use permit for tobacco uses within 600 feet from parks, day care centers, youth centers, and libraries. City staff has received many inquiries from the prospective developers regarding the availability of exceptions from these regulations and there are currently none available except for existing tobacco businesses. The City has a provision prohibiting the sale of alcohol from businesses occupying less than 20,000 square feet, but allows exceptions to be made by the Planning Commission through a conditional use permit process where the merits of each particular business can be considered. With the proposed ordinance change, the same option would be available for tobacco businesses near other sensitive uses (but not schools).
The following changes to Chapter 20.44.160 (Tobacco Sales Near Schools) are proposed in the Draft Ordinance at Attachment 6, the red-lined Ordinance at Attachment 5, and presented in the modified Chapter at Attachment 4:
1) Section 20.44.160(A) would continue to prohibit tobacco sales within 1,000 feet of schools (same as the current requirement), but would reduce the required distance from other “youth-oriented facilities” from 1,000 feet to 600 feet. The list of “youth-oriented facilities” would be modified to match those in the Commercial Cannabis Business Permits section (MMC 20.44.170) and the tobacco section would use the same list of “schools” adopted by the City Council for cannabis permits.
2) Section 20.44.160(B)(1) would be modified to use the same language as for cannabis permits in the measurement of the 1,000 feet and 600 feet.
3) Section 20.44.160(B)(2) would also be modified to allow for exceptions with a Conditional Use Permit granted by the Planning Commission for tobacco sales near other sensitive uses (not including schools).
Environmental Clearance
The Planning staff has conducted an environmental review of the project in accordance with the requirements of the California Environmental Quality Act (CEQA), and a Categorical Exemption is being recommended (see Attachment 3).
Planning Commission Recommendation
On September 8, 2021, the Planning Commission held a public hearing on the proposed Zoning Ordinance Amendment. Only one person testified in favor, the applicant; there were no other speakers. After the hearing, the Planning Commission voted to recommend approval to the City Council by a 6-0 (6 ayes, 1 vacancy) vote. See Planning Commission Resolution #4073 at Attachment 2.
City Council Action
After the public hearing, the City Council should consider adopting a motion to adopt the Categorical Exemption and to introduce the Draft Ordinance at Attachment 6. If the Ordinance is introduced on December 6, 2021, a 2nd reading and adoption would follow on December 20, 2021, with the Ordinance being effective 30 days later or on or about January 20, 2022.
IMPACT ON CITY RESOURCES
There are no impacts on City resources with this request.
ATTACHMENTS
1. Correspondence
2. Planning Commission Resolution #4073
3. Categorical Exemption (Environmental Review #21-24)
4. Proposed Amendments to MMC 20.44.160
5. Draft Ordinance (Red-Lined)
6. Draft Ordinance
7. Presentation