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HomeMy WebLinkAbout2024-11-19 Ordinance Item Number: 9.a. r 1 CITY OF IOWA CITY a Qa, COUNCIL ACTION REPORT November 19, 2024 Ordinance amending Title 14, entitled "Zoning Code", to address tobacco sales oriented retail uses. (REZ24-0006) (Second Consideration) Attachments: Memo from City Attorney Goers PZ Memo - 09.04.2024 PZ 9.4.24 Final Minutes Ordinance r CITY OF IOWA CITY M�=aumm"' MEMORANDUM Date: October 10, 2024 To: City Council From: Eric R. Goers, City Attorney Re: Tobacco permit ordinance grandfather rights You may recall that at your October 1 st formal meeting Council inquired whether an amendment changing the grandfather rights expiration time from 90 days to one year for cessation of tobacco sales would constitute a substantive change. After expressing some hesitation, I opined that it was not. I have been reconsidering that opinion ever since and have now come to the opinion that it is in fact a substantive change. The vote to approve the amendment was 3-2, giving indication that the matter was of enough substance that it garnered vocal opposition and votes in the negative. Since that time, it has been reported to me that some members of the public in affected areas consider it important enough to articulate their opposition to the change. Finally, because this may be the subject of future litigation, out of an abundance of caution, I think it would be the best course to take the conservative approach and treat the October 15th meeting as the first reading. Absent future changes, I do not see reason to send the ordinance back to the Planning and Zoning Commission for additional consideration. As always, please feel free to contact me directly if you have questions or concerns. Copy to: Geoff Fruin, City Manager Kellie Grace, City Clerk Kirk Lehman, Assistant City Manager Sue Dulek, First Assistant City Attorney Tracy Hightshoe, NDS Director Danielle Sitzman, Development Services Coordinator Anne Russett, Senior Planner r � CITY OF IOWA CITY MEMORANDUM Date: August 29, 2024 To: Planning &Zoning Commission From: Eric R. Goers, City Attorney Re: Zoning Code Amendments to create a Tobacco Retailer use, and create limitations on where they can be located Introduction At their April 2nd, 2024 formal meeting, the Iowa City Council denied several tobacco permit applications and expressed a desire to give thought and study to what could be done at a local level to address the proliferation of tobacco retailers within City limits. At their May 7th, 2024 formal meeting, Council passed a moratorium on the issuance of new tobacco permits while they studied more about what could be done. The moratorium runs until January 1st, 2025. Council then engaged in several work sessions to discuss how to better address the tobacco retailers, and the harmful health effects they bring to the community. At their July 16th, 2024 work session they direction the City Attorney to bring forth three draft ordinances for consideration. Those included the following: 1. A zoning code amendment to impose 500' separation distance requirements between tobacco retailers and other tobacco retailers, k-12 schools, and university property. 2. A cap on tobacco permits at the present 63. 3. A ban on kratom products. At their August 6th and 20th, 2024 work sessions, Council discussed the ordinances, ultimately deciding to proceed with the zoning code ordinance amendment and the creation of the kratom ban, but not the permit cap. They tweaked the draft zoning code amendment on the topic of grandfather rights, but otherwise accepted the draft ordinance as presented as appropriate to send to Planning and Zoning for your consideration. I have attached that draft hereto (Attachment 1.) Because it is a text amendment initiated by the City Council, the submittal requirements of Iowa City Code 14-8D-5C do not apply. Current Regulations At present, there is no "Tobacco Sales Oriented Uses" under the City's zoning code. Nor are there any restrictions specific to where tobacco retailers can operate, other than general provisions related to commercial retail uses. Proposed Amendments The proposed amendment(Attachment 1) helps to enhance land use regulations related to tobacco retailers in an effort to improve public health. This is consistent with advancing the City's strategic value of safety and well-being for our community members. The CDC has long concluded that there are significant health concerns related to public consumption of tobacco, tobacco products, alternative nicotine products, and vapor products. They report that smoking tobacco causes cancer, heart disease, stroke, lung diseases, diabetes, and chronic obstructive pulmonary disease (COPD), which includes emphysema and chronic bronchitis. in Ordinance No. 15-4634 (codified at Section 6-10-2 of the City Code), the City Council found that the use of e-cigarettes presents a serious and unknown public health threat and that in the interests of protecting the health of the public and providing a healthy work-place environment for its employees the City of Iowa City and prohibited the use of electronic cigarettes in all areas where it is illegal to smoke tobacco products. Research shows that greater access and availability of tobacco, tobacco products, alternative nicotine products, and vapor products leads to greater use of those products, and thus greater public harm. Iowa Code Chapter 453A governs the sale of tobacco, tobacco products, alternative nicotine products, and vapor products within the state of Iowa, all of which are covered by retail tobacco permits issued by the City. Chapter 453A grants cities the authority to issue retail tobacco permits located within their city limits. Chapter 453A further grants cities the discretion to issue, or not issue, tobacco permits within their city limits, pursuant to the city's own policies. For these reasons, managing the location of tobacco retailers is an appropriate subject of zoning law. The proposed amendment contains seven parts, presented in the order in which they appear in the ordinance, as follows: 1. Amends the table of allowable uses in commercial zones. 2. Amends the table of allowable uses in industrial and research zones. 3. Amends the table of allowable uses in form-based code areas. 4. Creates a new use category—"Tobacco sales oriented", for use in later sections. 5. Provides a definition tracking that use category. 6. Imposes a 500' separation buffer between tobacco retailers and other tobacco retailers, k-12 schools, and colleges and universities, including all University property. These provisions are modeled after our separation distance requirements for drinking establishments. 7. Addresses grandfather rights for those tobacco retailers already operating. Under these provisions, tobacco retailers would lose their grandfather rights if they have their permit revoked, allow their permit to expire for more than 60 days, cease the sale of tobacco products for at least 90 days, or change their use. Analysis Staff and Council believe controlling the density of tobacco retailers, as well as keeping them at least 500' from youthful populations such as those found on and near school properties, including college property (legal age for tobacco products is 21), will reduce the use of tobacco products and their related substitutes. Current retailers are protected via the grandfather provisions so as to prevent the forceful shuttering of businesses, or elements of those businesses. The federal Centers for Disease Control and Prevention (CDC) has an abundance of information available about the detrimental health effects of both tobacco products and tobacco alternatives. For more information, see their website here: https://www.cdc.gov/tabacco/index,html. For more information about the effects of greater tobacco retailer density, see the following article from the Journal Preventative Medicine, from their January, 2022 volume: Associations Between Disparities in Tobacco Retailer Density and Disparities in Tobacco Use, by Allison M. Glasser, MPH, Nathaniel Onnen, PhD, Peter F. Craigmile, PhD, Elli Schwartz, BS, and Megan E. Roberts, PhD. https://www.ncbi.nlm.nih._qov/pmc/articles/PMC8750533/ The journal article also describes an association between greater exposure to tobacco retailers and their marketing and price promotions and greater tobacco use. Anticipated Impact Staff anticipates that the proposed zoning ordinance will stem the proliferation of tobacco retailers in areas where there is already high density, such as downtown and along the Highway 1 and 6 corridors. The City has created a map showing the location of current tobacco retailers, K-12 school property, and property owned by the Regents. Also included are 500' buffers for both the retailer and school property. The map link can be found here: htt s:llma s.iowa- cit .org/porta I/a slinstant/basichndex.htmI?a ppid=ef233a2608104fa48ba72e5bf360aca0 Map layers can be turned on and off via the layer function in the lower right-hand corner. Over time, density may be reduced by attrition. Staff Recommendation Staff recommends that Title 14 Zoning be amended as detailed in Attachment 1 to enhance land use regulations related to tobacco retailer use and to further implement the City's goals related to public health. Attachments 1. Proposed Zoning Code Text Amendments r Approved by: _Z:�� Eric Goers, City Attorney ATTACHMENT 1 Draft Zoning Code Text Attachment 1 Draft Zoning Code Text Underlined and/or bold text(within tables) is suggested new language. Strike-through notation indicates language to be deleted. Section 1. Amendments 1. Title 14, entitled "Zoning Code", Chapter 2 entitled "Base Zones", Article C entitled "Commercial Zones", Table 2C-1, entitled "Principal Uses Allowed in Commercial Zones", is amended by adding the following bolded text to the "Retail uses" use category: Table 2C-1: Principal Uses Allowed in Commercial Zones Use Subgroups CO- CN- CH- Cl- CC- CB- CB- CB- MU Categories 1 1 1 1 2 2 5 10 Retail uses' Alcohol sales PR PR P P PR PR PR PR oriented retail Delayed deposit PR service uses Hospitality oriented PR PR P P P P P P PR retail Outdoor storage and P PR display oriented Personal service P PR P P P P P PR oriented Repair oriented P P P P P Sales oriented PR PR P P P P P PR Tobacco sales PR PR PR PR PR PR PR PR oriented 2. Title 14, entitled "Zoning Code", Chapter 2 entitled "Base Zones", Article D entitled "Industrial and Research Zones", Table 2D-1, entitled "Principal Uses Allowed in Industrial and Research Zones", is amended by adding the following bolded text to the "Retail' use category: Table 2D-1: Principal Uses Allowed In Industrial And Research Zones Use Categories Subgroups 1-1 1-2 RDP ORP Retail Sales oriented Personal service oriented Alcohol sales oriented Repair oriented Hospitality oriented retail S S Outdoor storage and display oriented Tobacco sales oriented 3. Title 14, entitled "Zoning Code", Chapter 2 entitled "Base Zones", Article H entitled "Form-based Zones and Standards", Table 14-2H-3B-1, entitled "Uses", is amended by adding the following bolded text to the "Retail' use category: Table 14-21-1-313-1: Uses Use T3NE T3NG T3NG- T4NS T4NS- T4NM T4NM- T4MS Specific Categories O O O Standards Retail Uses Sales - P' - P' - P' P Oriented Personal - - P' - P' - P' P Service Oriented Alcohol - - - - S' - S' S 14-4B-4B- Sales 15 Oriented Hospitality PR PR PR PR PR PR PR PR 14-4B-4B- Oriented 18(CN-1) Tobacco - - PR' - PR' - PR' PR 144B-413- Sales 24 Oriented Indoor - - - - - - - PR/S 14-4B-4B- Commercial 7 Recreational Uses General - - - S' - S' PR 14-4B-4B- Animal 2(CN- 1) Related Commercial Uses 4. Title 14, entitled "Zoning Code", Chapter 4 entitled "Use Regulations", Article A, entitled "Use Categories", Section 4, entitled "Commercial Use Categories", Subsection I, entitled "Retail Uses", is amended by adding the following Paragraph 2.(h.): h. Tobacco Sales Oriented: Any retailer actively engaged in the sale of tobacco products, cigarettes. alternative nicotine products, or vapor products all as defined_ in Iowa Code Chapter 453A, as amended, pursuant to a tobacco permit. 5. Title 14, entitled "Zoning Code", Chapter 9 entitled "Definitions", Article A, entitled "General Definitions", Section 1, entitled "Definitions" is amended by adding the following definition: Tobacco Sales Oriented Use: See "Retail uses" "Tobacco Sales Oriented" as defined in chapter 4. Article A "Use Categories", of this Title. 6. Title 14, entitled "Zoning Code", Chapter 4 entitled "Use Regulations", Article B, entitled "Minor Modifications, Variances, Special Exceptions, and Provisional Uses", Section 4, entitled "Specific Approval Criteria for Provisional Uses and Special Exceptions", Subsection B, entitled "Commercial Uses", is amended by adding the following Paragraph 24, entitled "Tobacco Sales Oriented Uses": 24. Tobacco Sales Oriented Uses: A tobacco sales oriented use as defined in this title must be separated by a minimum distance of five hundred feet 500' from any other tobacco sales oriented use, any general educational facility, and any college and university, as defined by this title. For purposes of the distance separation requirements within this Paragraph, "college and universities" shall include all property owned by the Iowa Board of Regents. Distance shall be measured along a straight line from the nearest property line or nearest point of the leased building space)of the Proposed use to the nearest property line or nearest point of the leased building space) of any other tobacco sales oriented usegeneral educational facility, or any college or university. For example, in the case of a tobacco sales oriented use that is located on a lot with multiple leased building spaces, such as a shopping mall, the distance is measured from the nearest point of the leased building space occupied by a tobacco sales oriented use to the nearest property line or leased building space of any other tobacco sales oriented usegeneral educational facility, or college and university. 7. Title 14, entitled "Zoning Code", Chapter 4 entitled "Use Regulations", Article E, entitled "Nonconforming Situations", Section 5, entitled "Regulation of Nonconforming Uses", is amended to add the following Subsection H, entitled "Nonconforming Tobacco Sales Oriented Uses": H. Nonconforming Tobacco Sales Oriented Uses: In addition to the other provisions in this section the following rovisions apply to nonconforming tobacco sales oriented uses: 1. An "tobacco sales oriented uses" as defined in this title that was legally established priot to the effective date hereof and that is nonconforming with regard to separation distances required under this title may continue unless any of the following conditions occur. If any of these conditions occur, then nonconforming rights cease and the use must convert to a conforming use: a. The tobacco permit is revoked: or b. The tobacco permit lapses or is discontinued fora period of sixty 60 days or more; or c. The tobacco sales oriented use ceases fora period of ninety 90 days or more; or d. There has been a change of use as defined in Section 14-4E-5B. MINUTES FINAL PLANNING AND ZONING COMMISSION SEPTEMBER 4, 2024 —6:00 PM — FORMAL MEETING E M M A J. HARVAT HALL, CITY HALL MEMBERS PRESENT: Susan Craig, Maggie Elliott, Steve Miller, Scott Quellhorst, Billie Townsend, Chad Wade MEMBERS ABSENT: Mike Hensch STAFF PRESENT: Eric Goers, Anne Russett OTHERS PRESENT: Kristian Nixon, Jonathan Lewallen, Dana Haverkamp, Jenna Dyroft RECOMMENDATIONS TO COUNCIL: By a vote of 5-1 (Wade dissenting) the Commission recommends approval of REZ24-0006 an amendment to Title 14 Zoning as detailed in Attachment 1 to enhance land use regulations related to tobacco retailer use and to further implement the City's goals related to public health. CALL TO ORDER: Craig called the meeting to order at 6:00 PM. PUBLIC DISCUSSION OF ANY ITEM NOT ON THE AGENDA: None. CASE NO. REZ24-0006 Consideration of an amendment to Title 14, entitled "Zoning Code", to address tobacco sales- oriented uses. Goers began the staff report with a little bit of the history about why tobacco regulation comes before the Planning & Zoning Commission as it is not something they are normally tasked with addressing. At the April 2 City Council meeting the Council voted to deny several tobacco permits, notifying staff that there was something up and that Council wanted to discuss the issue of tobacco regulation. Staff came back with a moratorium at their May 7 meeting that put the halt on all new tobacco permit applications at that point so Council would have time to consider how to regulate, if at all, tobacco permits. Goers explained that moratorium runs through the end of this calendar year. Council then engaged in several work sessions, the first being on July 16, at which Council tasked him with drafting three ordinance amendments. One is a zoning ordinance amendment that is for their consideration this evening having to do with distance separations between retailers and each other, and also retailers and either K - 12 schools or University property. The second ordinance amendment was having to do with putting a cap on tobacco permits issued throughout the City and the third had to do with banning kratom, an herbal substance that he is still learning about. Ultimately through a couple of additional work sessions on August 6 and August 20, Council directed to not to move forward with the permit cap, but to move forward with the other two ordinance amendments of a kratom band and the zoning ordinance. Goers noted the draft ordinance amendment was included in the agenda packet and he worked Planning and Zoning Commission September 4, 2024 Page 2 of 8 closely with the assistance of the urban planning staff on it. He also just wanted to make it clear tobacco retailers use is not something that's currently regulated under Iowa City zoning and it is a use that they've had to create in order to effectuate change that Council would like to consider. Therefore, there's nothing in the zoning code at present to compare to see how this is going to fit in with present regulation. The ordinance structure is modeled on alcohol zoning which at present has a couple of different separation distance measures in the code. One is 500 feet between drinking establishments, places that have licenses for on-premises consumption (bars), and the other is 1000-foot separation distance for off-premises consumption (liquor stores or places that sell alcohol for off-premises consumption). With the alcohol ordinance there are a couple of other caveats regarding accessory uses and so forth and it gets to be a little tricky but with tobacco is quite a bit more straightforward, either they have a tobacco permit or they don't. Staff did include some grandfather provisions, as they are apt to do on zoning measures because there are a number of retailers that are within 500 feet of each other at present or are within 500 feet of a school or university property. In the ordinance amendment it is stated that grandfathered retailers will have 60 days to allow their permit to lapse and if their permit lapses for more than 60 days they lose their grandfather rights and will have to cease selling tobacco. Goers noted that could mean a rehabilitation or remodeling project that would close down a shop and not sell for more than 60 days would also lose grandfather rights and their tobacco permit revoked. Goers showed a map that displayed the present location of both school property and current tobacco retailers, of which there are presently 62. He pointed out the tobacco retailers within a 500-foot buffer around University property or K - 12 school property. He noted in the downtown area there would likely not be an ability of any new retailers to come in but in other parts of the City there would be a little bit more opportunity. In so far as staffing is concerned, because the clerk's office already does tobacco permit applications and manages all of that, they would likely just continue managing this part of it and all they would really need to do is type in an address and then see whether it falls under one of the buffers or if it was in the clear and thus could be approved. Therefore, staff recommends that Title 14 Zoning be amended as detailed in Attachment 1 to enhance land use regulations related to tobacco retailer use and to further implement the City's goals related to public health. Townsend asked if this is a new issue and are there more tobacco retailers. Goers explained there has been an increase in tobacco retailers recently, insofar as tobacco retailers include convenience stores, grocery stores, drug stores, a lot of businesses for which the sale of tobacco and tobacco products is not their primary concern. Additionally vape shops and everything they sell would fall under the tobacco licensing. Goers also clarified the tobacco permits cover both traditional tobacco products like cigarettes and cigars, pipe tobacco, but also vapes, alternative nicotine delivery systems, but not kratom, that is a separate ordinance amendment. Wade noted Goers mentioned alternative nicotine products and that the definition of tobacco sales-oriented business would include any business that sells alternative nicotine products. Looking at the definition in the Iowa code it seems pretty broad, like it might pull in, for example, Target which sells nicotine lozenges, is that accurate, and if so, is that the intent of the ordinance. Goers stated he would need to look to see whether nicotine lozenges fall under the definition of products that require a tobacco permit. For this ordinance amendment the definition Planning and Zoning Commission September 4, 2024 Page 3 of 8 is if they need a tobacco permit, then this applies to them. If they do not need a tobacco permit, then it does not. Wade stated he is just trying to understand whether these restrictions would apply to something like ZYN which is an alternative to chewing tobacco and would be sold at a grocery store or pharmacy, it's more of a recreational nicotine product, as opposed to lozenges and gums which would typically be used for smoking cessation. Goers will look at Iowa Code Chapter 453A which defines some of those products and can circle back. Wade also asked if this were to pass would new tobacco shops need to seek approval for a provisional use from the Board of Adjustment or would they just go to the City Clerk. Goers stated it would be handed by the City Clerk's office. Goers noted in the ordinance that there are a number of charts that talk about whether they would be allowable under certain zones and there he would depend on the planning staff to help with the process by which they would secure the approvals that they need and if it's a provisional use, or something like that in a particular zone, planning staff would assist but in so far as the Clerk's concerned in issuing the tobacco permit, it would just be are they within 500 feet, yes or no. Wade asked if there would be any mechanism for an exception to that rule other than grandfathering. Goers confirmed there would not. Townsend asked if a company that has been grandfathered in goes out of business or for some reason can't continue to operate, no one can come in and replace that shop. Goers confirmed that would only be correct if there is a lapse of a permit of more than 60 days and/or a cessation of sales for more than 90 days. If a convenience store went out of business, and a month later got bought up by Casey's or something, Casey's can open up shop and get a permit, that would be fine. There are 62 permits at present and while Council originally wanted a cap on permits they chose not to move forward with that. Permits will be allowed so long as they are not within the 500 feet of another permit. Miller noticed when looking at the map he was just kind of surprised that Hy-Vee and grocery stores were on there, he was thinking that vape shops was what they're trying to limit with this legislation. It doesn't seem like anyone would want to limit having another grocery store within a certain radius of vape shop. Goers stated there was some discussion of that and City staff met a couple times with Susan Valetta, who's a Johnson County Public Health Educator, and based on her research she indicated that she's more concerned with the convenience stores and the grocery stores because there's greater exposure to children as children go into those places all the time. Whereas it would be surprising and unusual for a child to wander into a vape store and it's about exposure and normalizing of use that leads to greater problems down the line. If there's a higher density and higher availability of exposure, particularly to young people, then they're more likely to become users. Miller asked if all or most grocery stores have tobacco permits. Goers hasn't checked on that but believes most grocery stores have tobacco permits as well as most convenience stores also. Craig stated then if the Hy-Ve Drug that's on First Avenue, which certainly is within 500 feet of Regina, if that went out of business, unless someone else came along and bought the business or secured a permit within 60 days of a lapsed permit they would lose their grandfather rights. Goers confirmed that was correct. Planning and Zoning Commission September 4, 2024 Page 4 of 8 Craig stated the impetus for this concern from Council is a health one and Goers replied that was correct. Goers stated regarding the question about the alternative nicotine products and the list under State code which is incorporated through this ordinance states alternative nicotine product means a product not consisting of/or containing tobacco that provides for the ingestion, into the body of nicotine, whether by chewing (nicotine gum), absorbing, dissolving, inhaling, snorting or sniffing, or by any other means. Alternative nicotine product does not include cigarettes, tobacco products or vapor products as each of those also require a tobacco permit, or a product that is regulated by the Food and Drug Administration. So, it appears that any kind of nicotine gum or anything like that would require a tobacco permit. Wade asked if a location had a move because of loss of lease or something like that do they fall under the new rule as soon as they move locations and have to be greater than 500 feet, and the grandfathering would no longer apply. Goers confirmed that is correct because zoning regulation is about the use and not the user. So, if a tobacco retailer wants to move from location B to location C it has to be outside of 500 feet and eligible. Wade asked also about an explanation on why locations of education facilities from 18 and younger and college or universities are the treated the same. Goers stated the law used to be one only need to be 18 to consume tobacco products but now it is 21 and probably half or more of the student body at the University of Iowa is under 21. Craig opened the public hearing. Kristian Nixon (student, University of Iowa College of Law) was wondering if there's been any research on the increase in property value that the smoke shop owners might have, since they already have these locations that are close to the schools. Goers stated they haven't done any research on that but are cognizant of the changes because of the alcohol one upon which this tobacco ordinance is largely modeled. The proposed ordinance is kind of locking in some locations, because if they ever stop that use they will lose those grandfather rights and they are aware of landlords who require, as part of their lease with their tenants, that they continue to engage in the sale of alcohol and so forth as to preserve that right. Nixon also asked if there is currently a limit to how much product they could have, for example could one of these places expand upwards if they have a tall building. Goers replied that would be an expansion of a non- conforming use and would not be allowed. Jonathan Lewallen (student, University of Iowa College of Law) asked if there's been any consideration to the effect this ordinance could have on currently vacant properties with infrastructure for gas station use. For example, the closed gas station on Mormon Trek and the closed gas station downtown. Is there a risk that would be locking out the reopening of those businesses with this ordinance. Goers is not sure the Council would use the word risk to characterize that, but yes there is some possibility that if this passes and the use ceases. Currently there remains a tobacco permit in place for the former Kum & Go at Mormon Trek and Benton. He doesn't recall if there's one at the intersection of Burlington and Madison. Dana Haverkamp (student, University of Iowa College of Law) stated as per the Iowa code, under the alternative tobacco products, or nicotine products, nicotine patches would also fall under that definition, is there a benefit for restricting the sale of nicotine patches that an Planning and Zoning Commission September 4, 2024 Page 5 of 8 exception would not be a better idea to allow the sale for reducing the usage of nicotine in the first place. Goers noted there is an exception for products that are regulated as a drug or device by the US Food and Drug Administration and if nicotine patches fall under that category it would not apply. If they do not, and they otherwise fall under the definition of alternative nicotine products, this ordinance would apply to their application. Haverkamp stated there's no intent to make an exception for things that are preventative. Goers replied no, the City is bound by the State's regulations regarding alternative nicotine products and how they are defined. Haverkamp asked specifically for this new zoning permission why not make an exception for products that are aimed at reducing the use of nicotine, rather than having a blanket statement preventing this sale of nicotine and tobacco products. Goers stated the City is defaulting to the State's definition. There's a reason why some products are regulated and require a tobacco permit and that some are not and so they're just following the State code in that way. Haverkamp noted the majority of individuals that start smoking to begin with are individuals who are interacting with already people that smoke, such as family and friends, things of that nature, so how would they view restricting the locations themselves as a way that would actually reduce the influence of nicotine usage in the first place, like in children. The locations in themselves are not typically what's actually getting them to start smoking in the first place. Goers acknowledged it's difficult to regulate tobacco use within the home. Jenna Dyroft (student, University of Iowa College of Law) wanted to put forth the idea that perhaps this measure might be a little bit counterintuitive, they were speaking about how many grocery stores sell tobacco products, but primarily this seems like it's targeted at a typical vape shop, but because it's modeled off of alcohol prohibited measures it's including grocery stores, etc. She thinks it's worth considering looking at how the City is set up, a lot of the bars and liquor stores are concentrated in the downtown area and this measure is making it so that it's basically prohibiting any new stores from being in the downtown area which might encourage people to open new stores in the peripheral of the City, which would, in effect spread out tobacco use across the whole City, instead of maybe concentrating it in more of that downtown nightlife area. Russett noted residential zones do not permit tobacco or alcohol-oriented retail. Craig closed the public hearing. Elliott moved to approve REZ24-0006 an amendment to Title 14 Zoning as detailed in Attachment 1 to enhance land use regulations related to tobacco retailer use and to further implement the City's goals related to public health. Townsend seconded the motion. Quellhorst states he generally supports the proposal but would oppose the motion because he thinks that they should exclude alternative nicotine products, or at least tobacco cessation products like gums and lozenges. His concern is that this definition of alternative nicotine products sweeps pretty broadly and makes it would make it more difficult for businesses like pharmacies, for example, or Target to enter downtown and other areas. And then, relatedly, the impetus behind this measure is to protect public health and he doesn't see the same public health concerns with lozenges, gums and other tobacco cessation products as he does with vapes and cigarettes, for example. For those reasons he supports the notion behind the proposal but doesn't support this particular motion. Planning and Zoning Commission September 4, 2024 Page 6 of 8 Wade appreciates Quellhorst catching that because that's something he would not have realized, the nicotine patches and so on. Elliott noted they don't know for sure that that's the case, there is an exception perhaps for nicotine patches and she assumes they're somehow regulated by the FDA. Wade wouldn't want to get in a situation where a new Walgreens, for example, is interested in doing business downtown but either couldn't do so or would get caught up in a lot of red tape, due to this ordinance. Townsend would be in favor of this, 500 feet is not a long way to walk if someone can't find the products that they're looking for. Iowa City doesn't need more vape and tobacco shops in the downtown area there's already an abundance of the vape shops and tobacco shops and places that offer those things. Wade's concern is less with another vape shop, which he agrees that they don't need more of and more that a business that may happen to sell tobacco cessation products, like a Target or CVS, can't get a tobacco license because of the ordinance. If the City Attorney is of the opinion that those sorts of businesses wouldn't be prohibited by this ordinance, then he'd be comfortable supporting it. Goers noted looking it up, according to the CDC nicotine patches are an FDA approved medicine and nicotine gum, also, according to the Center for Disease Control, is an FDA approved medicine. Therefore, both would fall under the exception of alternative nicotine product. Miller asked just to clarify that would mean that they do not need a tobacco permit to sell it. Goers confirmed that is his reading of the definition of alternative nicotine products. Miller stated he will support this as the intent behind this is reducing the number of vape shops, especially downtown. His only concern is about what Commissioner Wade brought up with institutionalizing these locations as forever a vape shop. What happens if this becomes a problem. Goers replied there could be an ordinance amendment and because this is a zoning ordinance it would need to come before this Commission again before Council took it up if there was a change. He also noted insofar as the question about institutionalizing, that was something at the staff level they considered as well but also have to consider the alternative, and that there will just be more of them. Craig stated that's why she's in favor of this zoning change, because it's always a tradeoff, they have to trade something away to get something that they feel is important enough, and she thinks in this case, it's a fair trade. Wade thinks the intention is probably good, the devil is in the details and it may have some unintended consequences. He also thinks that 90 days without the sale of tobacco products is a little on the short side and would hate to have a business get hit with a tornado or natural disaster and then as a result lose their permit and ability to sell. Wade asked if there is a reason why they did not take a different approach, like a per capita permit approach, and instead really focused on zoning mechanism. Goers stated one point Council was considering that, and had him draft one, but ultimately looking at the map they Planning and Zoning Commission September 4, 2024 Page 7 of 8 thought that the zoning would really address their concerns and it wouldn't prevent a new grocery store from going into an area that maybe is underserved at present, part of a food desert or something. And if that grocery store felt like they needed to sell tobacco in order to pencil out and make a go of it, that that was probably a net benefit, and they didn't want a permit cap to get in the way of something like that. A vote was taken and the motion passed 5-1 (Wade dissenting). CONSIDERATION OF MEETING MINUTES: JUNE 26, 2024: Elliott moved to approve the meeting minutes from June 26, 2024. Wade seconded the motion, a vote was taken and the motion passed 6-0. PLANNING AND ZONING INFORMATION: Craig introduced the new Commission member, Steve Miller. Miller stated he is an architect who is really interested in planning and zoning and looking forward to learning more. His first City board or commission was public art and he did that for just over two terms. Russett updated that the two rezonings that were considered in June were both approved by Council, the 1215 Camp Cardinal Road and 2255 North Dubuque Road for the school district property. ADJOURNMENT: Elliott moved to adjourn, Wade seconded and the motion passed 6-0. l Prepared by: Eric Goers, City Attorney, 410 E. Washington Street, Iowa City, IA 52240; 319-356-5030 Ordinance Number Ordinance amending Title 14, entitled "Zoning Code", to address Tobacco Sales Oriented Retail Uses. (REZ24-0006). Whereas, Iowa City has seen within its borders an increased presence of retail outlets primarily focused on retail sales of tobacco, tobacco products, alternative nicotine products, and vapor products; and Whereas, there are significant health concerns related to public consumption of tobacco, tobacco products, alternative nicotine products, and vapor products; and Whereas, the Center for Disease Control (CDC) reports that smoking tobacco causes cancer, heart disease, stroke, lung diseases, diabetes, and chronic obstructive pulmonary disease (COPD), which includes emphysema and chronic bronchitis; and Whereas, according to the CDC, nearly 9 out of 10 adults who smoke cigarettes daily first tried smoking by age 18; and Whereas, according to the CDC, smokeless tobacco products can cause mouth cancer, gum disease, and tooth loss; and Whereas, according to the CDC, 1.5% of high school students in 2023 were current users of smokeless tobacco products; and Whereas, in Ordinance No. 15-4634(codified at Section 6-10-2), the City Council found that the use of e-cigarettes presents a serious and unknown public health threat and that in the interests of protecting the health of the public and providing a healthy work-place environment for its employees the City of Iowa City and prohibited the use of electronic cigarettes in all areas where it is illegal to smoke tobacco products; and Whereas, according to the CDC, in 2023, 2.13 million U.S. middle and high school students had used e-cigarettes in the past 30 days, including 4.6% of middle school students and 10.0% of high school students; and Whereas, Chapter 142D of the Iowa Code, the Iowa Smokefree Air Act, prohibits smoking tobacco products in certain public spaces, places of employment and outdoor areas, including enclosed City buildings and vehicles operated by the City, the public grounds immediately adjacent to City buildings and bus shelters; and Whereas, as a result of these public health risks, the City has declared additional areas to be smoke free places including the municipal parking ramps, airport, City Plaza except for alleys and certain areas within Iowa City parks (see Chapter 10 of Title 6, "Public Health and Safety"); and Whereas, greater access and availability of tobacco, tobacco products, alternative nicotine products, and vapor products leads to greater use of those products, and thus greater public harm; and Whereas, Iowa Code Chapter 453A governs the sale of tobacco, tobacco products, alternative nicotine products, and vapor products within the state of Iowa, all of which are covered by retail tobacco permits; and Whereas, Chapter 453A grants cities the authority to issue retail tobacco permits located within their city limits; and Whereas, Chapter 453A further grants cities the discretion to issue, or not issue, tobacco permits within their city limits, pursuant to the city's own policies; and Whereas, it is in the best interest of the City to amend the ordinance to create a new "Tobacco Retailer Uses" category, and to regulate their locations within the City. Now, therefore, be it ordained by the City Council of the City of Iowa City, Iowa: Section I. Amendments 1. Title 14, entitled "Zoning Code", Chapter 2 entitled "Base Zones", Article C entitled "Commercial Zones", Table 2C-1, entitled "Principal Uses Allowed in Commercial Zones", is amended by adding the following bolded text to the "Retail uses" use category: Table 2C-1: Principal Uses Allowed in Commercial Zones Use Subgroups CO- CN- CH- Cl- CC- CB- CB- CB- MU Categories 1 1 1 1 2 2 5 10 Retail uses' Alcohol sales PR PR P P PR PR PR PR oriented retail Delayed deposit PR ' service uses Hospitality oriented PR PR P P P P P P PR retail Outdoor storage and P PR display oriented Personal service P PR P P P P P PR oriented Repair oriented P P P P P Sales oriented PR PR P P P P P PR Tobacco sales PR PR PR PR PR PR PR PR oriented 2. Title 14, entitled "Zoning Code", Chapter 2 entitled "Base Zones", Article D entitled "Industrial and Research Zones", Table 2D-1, entitled "Principal Uses Allowed in Industrial and Research Zones", is amended by adding the following bolded text to the "Retail" use category: Table 2D-1: Principal Uses Allowed In Industrial And Research Zones Use Categories Subgroups I-1 1-2 RDP ORP Retail Sales oriented Personal service oriented Alcohol sales oriented Repair oriented Hospitality oriented retail S S Outdoor storage and display oriented Tobacco sales oriented 3. Title 14, entitled "Zoning Code", Chapter 2 entitled "Base Zones", Article H entitled "Form- based Zones and Standards", Table 14-2H-3B-1, entitled "Uses", is amended by adding the following bolded text to the "Retail" use category: Table 14-2H-3B-1: Uses Use T3NE T3NG T3NG- T4NS T4NS- T4NM T4NM- T4MS Specific Categories 0 0 0 Standards • Retail Uses Sales - - P' - ▪ P' - P' P Oriented Personal, - - • P' - P' - P' P Service Oriented Alcohol - - - - Si - Si S 14-4B-4B- Sales 15 Oriented Hospitality PR PR PR PR • PR PR PR PR 14-4B-4B- Oriented 18(CN-1) Tobacco - - P▪ R' - PR' - PR' PR 14-4B-4B- Sales 24 Oriented Indoor - - - - - - PR/S 14-4B-4B- Commercial 7 Recreational Uses General - - - - Si - Si PR 14-4B-4B- Animal 2(CN- 1) Related Commercial Uses 4. Title 14, entitled "Zoning Code", Chapter 4 entitled "Use Regulations", Article A, entitled "Use Categories", Section 4, entitled "Commercial Use Categories", Subsection I, entitled "Retail Uses", is amended by adding the following Paragraph 2.(h.): h. Tobacco Sales Oriented: Any retailer actively engaged in the sale of tobacco products, cigarettes, alternative nicotine products, or vapor products, all as defined in Iowa Code Chapter 453A, as amended, pursuant to a tobacco permit. 5. Title 14, entitled "Zoning Code", Chapter 9 entitled "Definitions", Article A, entitled "General Definitions", Section 1, entitled "Definitions" is amended by adding the following definition: Tobacco Sales Oriented Use: See "Retail uses", "Tobacco Sales Oriented" as defined in chapter 4, Article A, "Use Categories", of this Title. 6. Title 14, entitled "Zoning Code", Chapter 4 entitled "Use Regulations", Article B, entitled "Minor Modifications, Variances, Special Exceptions, and Provisional Uses", Section 4, entitled "Specific Approval Criteria for Provisional Uses and Special Exceptions", Subsection B, entitled "Commercial Uses", is amended by adding the following Paragraph 24, entitled "Tobacco Sales Oriented Uses": 24. Tobacco Sales Oriented Uses: A tobacco sales oriented use, as defined in this title, must be separated by a minimum distance of five hundred feet (500') from any other tobacco sales oriented use, any general educational facility;and any college and university, as defined by this title. For purposes of the distance separation requirements within this Paragraph, "college and universities" shall include all property owned by the Iowa Board of Regents. Distance shall be measured along a straight line from the nearest property line (or nearest point of the leased building space) of the proposed use to the nearest property line (or nearest point of the leased building space) of any other tobacco sales oriented use, general educational facility, or any college or university. For example, in the case of a tobacco sales oriented use that is located on a lot with multiple leased building spaces, such as a shopping mall, the distance is measured from the nearest point of the leased building space occupied by a tobacco sales oriented use to the nearest property line or leased building space of any other tobacco sales oriented use, general educational facility, or college and university. 7. Title 14, entitled "Zoning Code", Chapter 4 entitled "Use Regulations", Article E, entitled "Nonconforming Situations", Section 5, entitled "Regulation of Nonconforming Uses", is amended to add the following Subsection H, entitled "Nonconforming Tobacco Sales Oriented Uses": H. Nonconforming Tobacco Sales Oriented Uses: In addition to the other provisions in this section, the following provisions apply to nonconforming tobacco sales oriented uses: 1. Any"tobacco sales oriented uses", as defined in this title, that was legally established prior to the effective date hereof and that is nonconforming with regard to separation distances required under this title, may continue unless any of the following conditions occur. If any of these conditions occur, then nonconforming rights cease and the use must convert to a conforming use: a. The tobacco permit is revoked; or b. The tobacco permit lapses or is discontinued for a period of sixty (60) days or more; or c. The tobacco sales oriented use ceases for a period of ninety(90) days or more; or d. There has been a change of use as defined in Section 14-4E-5B. 8. Title 14, entitled "Zoning Code", Chapter 4 entitled "Use Regulations", Article E, entitled "Nonconforming Situations", Section 5, entitled "Regulation of Nonconforming Uses", Subsection F is amended by adding the underlined text and deleting the strikethrough text, as follows: F. Discontinuance Of Nonconforming Use: Except as allowed in subsection E1 and-G, and H of this section, a nonconforming use that is discontinued for a period of one year must revert to a conforming use or, in qualifying situations, a special exception may be applied for according to the provisions of subsection B of this section. Section II. Repealer. All ordinances and parts of ordinances in conflict with the provision of this Ordinance are hereby repealed. Section III. Severability. If any section, provision or part of the Ordinance shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional. Section IV. Effective Date. This Ordinance shall be in effect after its final passage, approval and publication, as provided by law. Passed and approved this day of , 2024. Mayor Approved by Attest: • City Clerk City Attorney's Office— 10/31/2024 Ordinance No. Page 6 Moved by , seconded by , that the Ordinance as read be adopted, and upon roll call there were: Ayes: Nays: Absent: Alter Bergus Dunn Harmsen Moe Salih Teague First Consideration: November 4, 2024 Vote for Passage: Ayes: Alter, Bergus, Dunn, Harmsen, Moe, Salih, Teague Nays: None Absent: None Second Consideration: November 19, 2024 Vote for Passage: Ayes: Alter, Bergus, Dunn, Harmsen, Moe, Salih, Teague Nays: None Absent: None Date Published: