When American cities first adopted the practice in the early 1900s, a foundational purpose of zoning was the protection of the public health, safety, morals and general welfare. Today, the protection of morals is not as commonly cited as a purpose in contemporary zoning ordinances as it once was; however, health, safety and general welfare are still squarely at the center of almost any land-use regulation imaginable.
Some cities now believe that zoning can fulfill its role as a protector of public safety in terms of locations of vape shops and their impacts on neighboring properties.
A 2018 Gallup Poll showed that nine percent of Americans regularly or occasionally use e-cigarettes. Another study from 2019 study showed 27.5 percent of high school students try vaping at some point. Tobacco use among Americans in general is roughly the same as e-cigarette use, while tobacco use among high schoolers (9.3 percent) is a lot lower than e-cigarette experimentation or use.
These numbers, as they are relevant to students, may cause concern for local policy makers who may look to zoning as a tool to address the situation.
At its most basic, zoning regulations control land use, impacts on neighboring properties, and the creation or maintenance of community character. Zoning can control where a vape shop could be located in a city or county, and can contribute to reducing any perceived or real impacts the operation may have on its neighbors.
Kendig Keast Collaborative (KKC) is currently working on a monumental update to Lubbock, Texas’, land-use regulations, and addressing vape and smoke shops is a concern among city leaders for this project.
As part of Lubbock’s draft Unified Development Code (UDC), KKC worked with city leaders to formulate standards and definitions related to vape shops and conventional tobacco stores. The regulations are not unlike requirements for on- or off-site alcohol consumption that are fairly common for cities and counties across the country.
The draft UDC proposes that vape shops and tobacco stores be allowed by Specific Use Permit (SUP) in the zoning district that accommodates neighborhood-scale development and in the larger-scale commercial district. This means that the Planning and Zoning Commission will make a recommendation to the city council, who will then take final action on the SUP, with the ability to impose additional site-specific conditions.
At minimum, a new vape shop must be separated a minimum of 1,000 feet from any existing vape shop, and a minimum of 600 feet from certain “protected uses” such as public or private elementary or secondary schools, city parks, childcare or daycare centers, and others. KKC and the city formulated these numbers based on national best practices, existing separations in the city, and the thoughts and opinions of a UDC subcommittee helping to steer the project.
Finally, KKC worked to supply the draft UDC with definitions that will assist the city in interpreting and administering the new requirements, being careful to not unintentionally include grocery stores and similar land uses, whose revenues from tobacco or vaping products would only account for a small part of their overall revenue.
These defined terms include:
Smoke Shop or Tobacco Store – An establishment dedicated to the retail sale of tobacco, tobacco products, or tobacco paraphernalia as its primary source of income. A grocery store or similar retail use that sells tobacco products or tobacco paraphernalia as an ancillary sale is not included in this definition.
Tobacco Products – Any product in leaf, flake, plug, liquid (such as e-cigarette liquid), or any other form, containing nicotine or tetrahydrocannabinol derived from the tobacco or hemp plant, or otherwise derived, which is intended to enable human consumption of the tobacco or nicotine in the product, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means. For the purposes of this UDC, this term excludes any product that has been specifically approved by the United States Food and Drug Administration for sale as a tobacco/smoking cessation product or for other medical purposes, where such product is marketed and sold solely for such an approved purpose.
Tobacco Paraphernalia – Any equipment, device, or instrument that is primarily designed or manufactured for the smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing, or ingesting by any other means into the body of tobacco, tobacco products, or other controlled substances as defined in Texas Health and Safety Code. Items or devices classified as tobacco paraphernalia include, but are not limited to, the following: pipes, punctured metal bowls, bongs, water bongs, electric pipes, e-cigarettes, e-cigarette juice, buzz bombs, vaporizers, hookahs, and devices for holding burning material. Lighters and matches are excluded from the definition of tobacco paraphernalia.
The City of Lubbock is making use of KKC’s code drafting and hosting platform, enCodePlus, to assist in drafting, commenting on, and eventually hosting the new UDC.
enCodePlus allows UDC users to easily access specific use standards – such as those for vape shops – with clickable cross-references. It also conveniently displays definitions for various technical terms and land uses just by hovering the cursor over the defined term.
In addition, enCodePlus’ Land-Use Lookup Tool quickly allows a user to look up a land use, see where it is permitted on the zoning map, what the standards are, and what process is required for approval.
enCodePlus is a unique, web-based technology platform delivering a full suite of planning, zoning and municipal code tools and features, together with full or hybrid code management services. Created by the planning experts at Kendig Keast Collaborative, the platform serves planners and zoning administrators, clerks, attorneys, managers, economic developers, and consultant partners. The cutting-edge software streamlines the rejuvenation of the format and usefulness of plans, studies, codes and ordinances, design guidelines, standards and specifications and the processes to create and publish them.
About the author of “Vape Shops and Zoning: Controlling the Clouds”Brian Mabry, AICP – Principal-in-Charge, Code Practice Leader, Kendig Keast Collaborative
Brian has made a career of drafting understandable, practical, and enforceable development regulations, providing his expertise to local governments since 2001. Having worked in both the private and public sectors, Brian knows the importance of client service and the realities involved in the day-to-day administering of zoning codes. Brian pragmatically advocates for the simplification of regulations, the empowerment of Planning staff for making administrative approvals where appropriate, and hybrid codes that provide the familiarity of Euclidean zoning, the flexibility of performance zoning and the design orientation of form-based codes. Brian has been intimately involved in reworking the entirety of the community’s development regulations, drafting small but crucial changes to existing standards, and administering existing language every day for specific situations.
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