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Ordinance 2805CITY OF ALAMEDA ORDINANCE NO. 2805 New Series EMERGENCY ORDINANCE ESTABLISHING A FORTY-FIVE DAY MORATORI ON THE ISSUANCE OF BUILDING , ZONIG, OCCUPANCY AND OTHER PERMITS FOR THE ESTABLISHMENT OR EXPANSION OF ACTIVITIES DEVOTED PRIMARLY TO THE SALE OR EXCHANGE OF TOBACCO-RELATED PRODUCTS WHEREAS , according to the American Cancer Society, tobacco is responsible for nearly one in every five deaths in the United States , more than 400 000 people die every year from smoking- related diseases , and active smoking is the largest cause of preventable death in this country, eventually killing one of every two people who continue to smoke; and WHEREAS, approximately 60 percent of smokers start smoking at age 13 and 90 percent begin before age 20; and WHEREAS , underage tobacco use continues to rise; and tE WHEREAS , the 1996 Californa Tobacco Survey found that the percentage of youth 12- years of age who have never smoked , yet are susceptible to smoking, has risen from 35.5 percent in 1993 to 42 percent in 1996 , with increases of over 50 percent by young adolescents (12 years old), Afrcan American youth , with much better-than-average school performance , and increases of over (3 30 percent among girls and Asian Americans; and WHEREAS , even after passage of Federal regulations in 1996 designed to make tobacco purchases by children and teenagers more diffcult, 70 percent of under-aged youth who tried to buy tobacco products were able to do so , and even in communities that performed tobacco "stings " 50 percent of youth were able to buy tobacco; and WHEREAS , at least two businesses primarily devoted to the sale of tobacco products are currently in operation v/ithin the City of Alameda: and WHEREAS , recently, businesses devoted primarily to the sale of tobacco products have either begu operation or declared an intent to begin operation within Alameda in the near futue and such businesses can be expected to continue to proliferate; and WHEREAS , the Alameda Municipal Code does not specifically regulate the location or operation of businesses primarily devoted to the sale of tobacco products and such businesses are currently permitted in commercial zoning districts; and WHEREAS , many available locations for businesses substantially devoted to the sale of tobacco products are within close proximity to Alameda schools; and WHEREAS, the City needs to address this expected proliferation of tobacco related businesses; and WHEREAS , the requirements ofthe Califomia Environmental Quality Act of 1970 (CEQA) have been satisfied , and in accordance with Sections 15061(b)(3), of the California Code of Regulations , this project is exempt from the provisions of CEQA; and WHEREAS, the City of Alameda is in the process of developing a "Downtown Visioning Project" and Economic Development Strategic Plan and also has begun a process to comprehensively update its General Plan and Development Code; and WHEREAS, because of the forgoing, it is both urgent and essential to the general health safety, and welfare of the community and its citizens and the promotion of proper land use , to immediately prohibit for a limited time the issuance of building, zoning, occupancy, and other permits for activities devoted primarly to the sale oftobacco-related products , to allow time to study the issue so that appropriate land use controls can be developed; and WHEREAS , the City Council expressly finds and declares that this ordinance is necessary for protecting public peace during this emergency situation. Urgent action is needed due to: (1 ) (2) (3) (4) (5) the reasons set forth in the recital paragraphs of this Ordinance; potential proliferation of tobacco related businesses; ambiguities in the City s zoning regulations; strong public outcries regarding the proliferation of tobacco related businesses; and the City s need to study the zoning impacts of tobacco-related business uses. WHEREAS , the City Council finds and determines that the public safety, health convenience , comfort , prosperity and general welfare wil be furthered by the proposed moratorium. NOW , THEREFORE , BE IT ORDAID by the Council of the City of Alameda that: Section 1.The City Council finds and determines the foregoing recitals to be true and correct and hereby makes them a part of this Ordinance. Section 2.The requirements of the California Environmental Quality Act (CEQA) of 1970 , as prescribed by the Secretar of Resources , and the City of Alameda s environmental review requirements have been satisfied , and that in accordance with Sections 15061 (b )(3), ofthe Californa Code of Regulations , this project is exempt from the provisions of CEQA. Section 3 This moratorium shall remain in place for a period of forty five days which may be extended by ordinance or until the date a decision is rendered by the City Council to adopt permanent land use controls for the establishment or expansion of activities devoted primarly to the sale of tobacco-related products , whichever occurs earlier , to allow the completion of the City analysis to provide the City Council with sufficient time to review the analysis and consider adoption of appropriate land use controls. Section 4 For the term of this Ordinance , no building, zoning, occupancy or other permits shall be issued for the establishment or expansion of activities devoted primarily to the sale or exchange of tobacco-related products. Section 5 . " Tobacco-related products " are any substance containing tobacco leaf including but not limited to cigarettes , cigars , pipes , tobacco , snuff, chewing tobacco and dipping tobacco; cigarette papers; or any other instrent or paraphernalia that is designed for the smoking or ingestion of tobacco and products prepared from tobacco. Section 6 . " Activities devoted primarily to the sale or exchange of tobacco-related products " are activities either devoting 20 percent of floor area or display area to , or deriving 75 percent or more of gross sales receipts from, the sale or exchange of tobacco-related products. Section 7 An analysis which examines appropriate land use controls and other strategies to address the establishment or expansion of, and appropriate location for, activities devoted primarly to the sale oftobacco-related products is hereby authorized and will be completed within six months. Section 8 . The public safety, health and general welfare wil be furthered by this Emergency Ordinance. Section 9 . This Ordinance will be effective immediately upon its adoption by the City Council pursuant to Section 3-12 ofthe City Charer, and shall apply to (1) the sale or exchange of tobacco-related products from facilities devoted primarly to the sale or exchange oftobacco-related products , where no City building, zoning or other permit is required to establish the sale or exchange of such tobacco-related products , excluding such sales or exchanges oftobacco-related products that were legally established prior to the effective date ofthis Ordinance. Notwithstanding the foregoing, this Ordinance shall be applicable to all expansions of activities devoted primarily to the sale or exchange of tobacco-related products that are made after the effective date of this Ordinance; and (2) all applications for building, zoning, occupancy and other permits , unless , prior to the effective date of this Ordinance , the applicant has received from the City all required permits , including final buildings permits for his/her project and has completed substantial construction in reliance thereon. Further , for the term of this Ordinance and beginning with the effective date of this Ordinance , no activity primarily devoted to the sale or exchange oftobacco-related products shall be expanded , established , or opened in any facility or zone in the City of Alameda , excepting therefrom activities established pursuant to Section 12 ofthis Ordinance. This Ordinance shall be applicable to all activities primarly devoted to the sale or exchange of tobacco-related products notwithstanding how such activities are classified by City of Alameda Zoning Regulations and regardless of whether such activities are permitted or conditionally permitted activities. Moreover the moratorium established by this Ordinance shall be applicable to expansions and establishments of activities primarly related to the sale or exchange of tobacco-related products , even where no City of Alameda building, zoning or other permit is required or otherwise needed for such activities to be established or expanded. Section 10.This Ordinance is enacted pursuant to the City of Alameda s general police powers , Section 3-1 of the City Charter and Aricle XI of the California Constitution Section 11.If any provisions of this Ordinance or the application thereof to any person or circumstances is finally held invalid, the remainder ofthis Ordinance and the application of such provisions to other persons or circumstances shall not be affected. Section 12 The City, on a case by case basis , shall have the authority upon a showing of good cause by an applicant, to waive the moratorium imposed by this Ordinance and to allow for the granting of permits to said applicant pursuant to the otherwise suspended and applicable zoning provisions ofthe Alameda Planing Code. Good cause shall mean a factual and evidentiary showing by the applicant that the moratorium, if not waived , wil deprive the applicant of substantially all reasonable use of his/her property. All such applications for waiver shall be filed with the City Planng Deparment with appropriate fee. Said applications shall be reviewed and decided by the Planning Board. !ithin 10 calendar days after the date of a decision by the Planning Board , and appeal from said decision may be taken to the City Council by the applicant, the permit holder, or any other interested pary. In the event the last date of appeal falls on a weekend or holiday when City offces are closed , the next date such offces are open for business shall be the last date of appeal. Such appeal shall be made on a form prescribed by the Planing Board and shall be fied with the City Clerk. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the Board or wherein its decision is not supported by the evidence in the record. Upon receipt of the appeal , the Council shall set the date for consideration thereof. The City Clerk shall notify the Secretary of the Planning Board of the receipt of said appeal and of the date set for consideration thereof; and said Secretary shall , not less than ten days prior thereto , give written notice to; the applicant , the appellant in those cases where applicant is not the appellant; adverse party or parties , or the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as the Secretary deems appropriate , of the date and place of the hearng on the appeal. The decision of the City Council shall vote on the appeal within thirty (30) days after its first hearng of the appeal. If the Council is unable to decide the appeal at that meeting, it shall appear for a vote on each regular meeting ofthe Council thereafter until decided. Fees for waiver applications and associated appeals shall be the same as those charged for Major Conditional Use Permits. Section 13 . To the extent this Ordinance is inconsistent with any other provisions of the Alameda Municipal Code or the Alameda Development Regulations , the more strngent regulations shall apply. This Ordinance suspends contrary regulations in the Alameda Municipal Code or Development Regulations. Section 14 . The City s Planng Director, or his/her designee , shall have the authority in the first instance to interpret the provisions ofthis Ordinance and their applicability to paricular parcels individuals and situations. Following the procedures and requirements of section 30-25 of the Alameda Municipal Code an appeal may be taken to the Planning Board by any interested party, from any administrative determination or interpretation made by the City s Plannng Director, or her designee , under this ordinance. The decision ofthe Planning Board may be appealed to City Council pursuant to section 30-25 of the Alameda Municipal Code. Section 15.This Ordinance shall take effect immediately upon adoption and be in full force and effect as an urgency measure for the immediate preservation of public health , safety and welfare. This Ordinance shall be of no further force and effect forty five days from the date of its adoption unless further extended by subsequent Ordinance. Attest: , the undersigned , hereby certifY that the foregoing Ordinance was duly and regularly adopted and passed by the Council of the City of Alameda in regular meeting assembled on the-- day of September , 1999 , by the following vote to wit: AYES:Councilmembers Daysog, DeWitt , Johnson , Kerr and Mayor Appezzato - 5. NOES:None. ABSENT:None. ABSTENTIONS:None. IN WITNSS , WHREOF , I have hereunto set my hand and affxed the offcial seal of said City this 10th day of September , 1999. pP Diane Fetsch , City Clerk City of Alameda