1.  LAND USE  Regulating Infestation: Zoning Laws & “CUPs” (Conditional Use Permits) STORE Campaign: Technical Assistance July 8, 2003 Randolph S. Kline, J.D. Technical Assistance Legal Center (510) 444-8252 — http://talc.phi.org

2. What is Land Use? Designates permissible uses of land (“Zoning”) –Allow certain uses in certain areas: residential, commercial, industrial, etc. Rid community of undesirable uses over time (buyout, amortization, or attrition ) –e.g., remove downtown pornography shops Place conditions on using land for certain activities (“Conditional Use Permits” or “CUPs”)

3. Why is Land Use Legal? Police Powers of Government –Regulate for public health, safety, welfare, and morals –Declare and close down a public nuisance –Very broad powers TEST: Is government action rational ? e.g., “Visual blight” qualifies (regulations affecting all billboards)

4. What are the Strengths of Zoning? Regulate location: keep tobacco retailers away from children –Restrict to certain zones (e.g., industrial) –Require set-offs of x ft from: Youth oriented areas and facilities Residential zones Limit the number of tobacco retailers: –Limit density (x stores per y population) –Limit proximity (stores must be x ft apart)

5. What is a “CUP?” (Conditional Use Permit) Individual determination of suitability for a particular location –Use must be legal under zoning laws –Can deny permit based on site-specific factors –Can condition permit on following certain rules: No self-service displays Clerks selling tobacco must be at least 18 years old Retailer complies with all state and local tobacco laws Permit can be suspended if conditions violated

6. Land Use is Compatible with … Everything! Land Use complements other laws like: –Licensing (can be used to regulate Sig. Tob. Rtlrs) –Self Service Display bans –General sign ordinances –State tobacco control laws Land Use adds enforcement options: –CUP can enforce any other tobacco law (condition = “comply with all laws”)

7. Which Tobacco Retailers are Affected? All tobacco retailers may be subject to land use regulation. –Gas stations, grocery stores, etc. –Similar to licensing or A community may wish to use land use to regulate “Tobacco Stores” only.

8. What is a “Tobacco Store?”

9. City of Oakland’s Definition of “Tobacco Store” 20% or more of floor space or display area for tobacco-related products, or 75% or more of gross sales receipts from tobacco-related products

10. Land Use is Prospective Land Use primarily operates to restrict new tobacco retailers. –Although established retailers can be closed, the process maybe: Politically difficult Subject to litigation Land use is best used to prevent a problem, not to fix one.

11. When will a Cigarettes Cheaper! open near you?

12. Getting Rid of Existing Stores Buy them out –Fast, but costly Amortize –Several months or years, no cost, but risk litigation –Not legal in every state Wait for stores to voluntarily close –No cost, no risk of litigation, but slow

13. Buy Them Out Existing tobacco stores have a right to continue operating for some period (“Legal Nonconforming Use” or “Grandparented”). To stop store from selling, city could pay the owner to close business. Once the store is gone, the land use ordinance will prevent new stores from opening in that area.

14. Amortize Allows a tobacco store to continue operation long enough to recover all or a part of the owner’s investment. –e.g., cost of move, loss of goodwill, etc. Amortization itself is usually legal. But disputes arise over how to calculate the time period (the “amortization period”). Amortization is not legal in every state.

15. Wait for Stores to Voluntarily Close Down Temporary closure (more than a few months) equals a “new” store: must meet all current zoning requirements to reopen. Existing stores can not expand or significantly remodel (“Legal Non- conforming Use”). Eventually, the number of tobacco stores in prohibited areas will decline.

16. Land Use Summary Land use regulation is a fundamental police power of local governments. Zoning can be used to limit the location, density, and proximity of tobacco retailers. Conditional Use Permits (CUPs) can require tobacco retailers to conform to special rules relating to the sale of tobacco. Land Use can eliminate existing stores but is best used before a problem arises.