Ordinance 2813CITY OF ALAMEDA ORDINANCE NO. 2813
New Series
URGENCY ORDINANCE REPEALING ORDINANCE NO. 2805
ESTABLISHING A TEN MONTH FIFTEEN DAY MORATORI ON THE
ESTABLISHMENT OR EXPANSION OF ACTIVITIES DEVOTED PRILY
TO THE SALE OR EXCHANGE OF TOBACCO-RELATED PRODUCTS
WHEREAS , the use oftobacco products is a serious health issue in the City of Alameda , the
State of California and the United States of America; and
WHEREAS , at least two businesses primarily devoted to the sale of tobacco products are
currently in operation within the City of Alameda: and
WHEREAS , recently, businesses devoted primarily to the sale of tobacco products have
either begun operation or declared an intent to begin operation within Alameda in the near future 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; andf: WHEREAS, the City needs to address this expected proliferation of tobacco related
(.
businesses; and
WHEREAS, the requirements ofthe Californa Environmental Quality Act of 1970 (CEQA)
have been satisfied , and in accordance with Sections 15061(b)(3), of the California Code
Regulations , this project is exempt from the provisions ofCEQA; 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 primarily 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 adopted Ordinance No. 2805 on September 9 , 1999 which
imposed a forty-five day moratorium on the issuance of building, zoning, occupancy and other
permits for the establishment or expansion of activities devoted primarily to the sale or exchange of
tobacco-related products; 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:
(I)
(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 oftobacco-related business uses.
WHEREAS , the City Council finds and determines that the public safety, health
convenience , comfort , prosperity and general welfare will be fuhered by the proposed moratorium.
NOW , THEREFORE , BE IT ORDAINED 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 California
Code of Regulations , this project is exempt from the provisions of CEQA.
Section 3 This moratorium shall remain in place for a period often months and fifteen
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 oftobacco-related products , whichever occurs earlier, to allow the completion
of the City s 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 primarly 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 instruent 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
primarily to the sale of tobacco-related products is hereby authorized and will be completed within
ten months.
Section 8 . The public safety, health and general welfare will 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 of the City Charter, 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 of tobacco-related products that
were legally established prior to the effective date of this Ordinance. Notwthstanding 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 , inc1udingfinal
buildings permits for hislher 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 of tobacco-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 of this Ordinance. This Ordinance shall be
applicable to all activities primarily devoted to the sale or exchange oftobacco-relatedproducts
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 oftobacco-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 ofthe 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 of this 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 of the Alameda Planning Code. Good cause shall mean a factual and evidentiary showing
by the applicant that the moratorium , if not waived , will deprive the applicant of substantially all
reasonable use of his/her property. All such applications for waiver shall be filed with the City
Planning Department with appropriate fee. Said applications shall be reviewed and decided by the
Planning Board. Within 10 calendar days after the date of a decision by the Planning Board , an
appeal from said decision may be taken to the City Council by the applicant , the permit holder, or
any other interested party. In the event the last date of appeal falls on a weekend or holiday when
City offices are closed , the next date such offices are open for business shall be the last date of
appeal. Such appeal shall be made on a forr prescribed by the Planning 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 ofthe 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
hearing on the appeal. The decision of the City Council shall vote on the appeal within thirty (30)
days after its first hearing 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 Commercial Use
Perrits and associated appeals..
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 hislher 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 pary,
from any administrative determination or interpretation made by the City's Plannng Director, or her
designee , under this ordinance. The decision of the Planng Board may be appealed to City Council
pursuant to section 30-25 ofthe Alameda Municipal Code.
Section 15 . Ordinance No. 2805 is hereby repealed.
Section 16.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 ten months and fifteen days ITom the date of
its adoption unless further extended by subsequent Ordinance.
Attest:
tA
CIty Clerk
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 19th day of
October , 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
20th day of October , 1999.
f#cwt :rDiane Felsch, City Clerk
City of Alameda