HomeMy WebLinkAboutAgenda - 06-04-2024; 5-d - Unified Development Ordinance Text Amendment – Tobacco and Hemp Retail Use 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 4, 2024
Action Agenda
Item No. 5-d
SUBJECT: Unified Development Ordinance Text Amendment — Tobacco and Hemp Retail Use
DEPARTMENT: Planning and Inspections
ATTACHMENT(S): INFORMATION CONTACT:
1. Statement of Consistency Cy Stober, Director, (919) 245-2592
2. Ordinance and Proposed UDO Text Amendments
3. Orange County Board of Health Letter of Support
4. Excerpt of Draft May 1, 2024 Planning Board
Minutes and Signed Statement of Consistency
PURPOSE: To hold a public hearing, receive the Planning Board and staff recommendations and
public comment, close the public hearing, and consider action on Commissioner-initiated text
amendments to the Unified Development Ordinance (UDO) regarding use, regulation, and definition
of "Tobacco and Hemp Retail" use.
BACKGROUND: At the February 6, 2024, Business meeting of the Orange County Board of
Commissioners, Commissioner Amy Fowler petitioned to direct the County Attorney's Office to
provide a draft UDO amendment to regulate the retail use of businesses that primarily rely upon the
sale of tobacco and hemp products. The intent is to limit exposure of youth to such products, as well
as ensure that they are not densely focused in any part of Orange County. The County Attorney's
Office, basing proposed amendment language on recently-adopted amendments to Wake County's
ordinances for similar purposes, provided draft language to the Planning & Inspections Department
for presentation as a UDO amendment.
Orange County is proposing to amend the UDO to:
1. Define "Tobacco and Hemp Retail" use;
2. Allow "Tobacco and Hemp Retail" as use in NR-CD zoning districts; and
3. Require that any such establishment be at least 1,000 feet from any of the following:
A. Tobacco and Hemp Retail;
B. Schools, including:
Schools: Performing Arts, Sports, and Recreation,
Schools: Preparatory,
Schools: Technical, Trade, and Skill Training, and
Schools: Universities, Colleges;
C. Parks and Recreational Facilities; and
2
D. All Residential Uses
The Orange County Board of Health approved a Letter of Support (Attachment 3), signed April 24,
2024, providing health and policy reasons for adopting the language presented, and providing
context for how Orange County's amendment of the UDO will be consistent with similar recent
actions throughout the state.
In compliance with the Orange County-Chapel Hill-Carrboro Joint Planning Agreement, the
proposed amendments were sent to both towns for comment on March 19, 2024. No comments
were received.
Planning Board Recommendation: At its May 1, 2024 meeting, the Board voted unanimously to
recommend approval of the Statement of Consistency and the UDO amendment package. An
excerpt of the draft May 1, 2024 Planning Board minutes and the Planning Board's signed
Statement of Consistency are provided at Attachment 4. Prior to making its recommendation, the
Planning Board reviewed the materials in an "Ordinance Review Committee" meeting on April 3,
2024. Materials for this meeting are available at:
https://orangecountync.gov/AgendaCenter/ViewFile/Agenda/ 04032024-1982.
Planning Director's Recommendation: The Planning Director recommends approval of the:
1. Statement of Approval and Consistency indicating the text amendments are reasonable
and in the public interest, as contained in Attachment 1.
2. Unified Development Ordinance (UDO) text amendments, as contained in Attachment 2.
FINANCIAL IMPACT: There are no costs associated with this project other than the use of staff
time and the required legal advertisement for the text amendment's public hearing. County staff has
and will continue to accomplish the necessary tasks associated with amending the UDO and the
legal advertisement will be paid from budgeted funds for this purpose.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to this
item:
• GOAL: ESTABLISH SUSTAINABLE AND EQUITABLE LAND-USE AND
ENVIRONMENTAL POLICIES
The fair treatment and meaningful involvement of people of all races, cultures, incomes and
educational levels with respect to the development and enforcement of environmental laws,
regulations, policies, and decisions. Fair treatment means that no group of people should
bear a disproportionate share of the negative environmental consequences resulting from
industrial, governmental and commercial operations or policies.
ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal
impact associated with this item.
RECOMMENDATION(S): The Manager recommends the Board:
1. Conduct the public hearing and receive the Planning Board and staff recommendations and
public comments;
2. Close the public hearing; and
3. Approve the Statement of Consistency (Attachment 1) and UDO Text Amendments
(Attachment 2).
3
Attachment 1
STATEMENT OF APPROVAL AND CONSISTENCY OF
A PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT WITH
ADOPTED ORANGE COUNTY PLANS
Orange County has initiated an amendment to the Unified Development Ordinance (UDO) to
add requirements for"Tobacco and Hemp Retail"use.
The Board of County Commissioners hereby recommends approval of the proposed text
amendment and issues this Statement of Consistency pursuant to NCGS § 160D-605 (c)
Governing board statement. The Board of County Commissioners finds:
1. The requirements of UDO Section 2.8 Zoning Atlas and Unified Development
Ordinance Amendments, including review by the Development Advisory Committee
(DAC), as required in UDO Section 1.9, have been met;
2. The amendment is consistent with the adopted 2030 Orange County Comprehensive Plan,
as prescribed by UDO Section 1.1.5 Statement of Intent—Amendments and Section 1.1.7
Conformance with Adopted Plans;
3. The amendment supports the following principles and goals in the plan:
a. Planning Principle 8: Future growth and development should occur in a manner
that preserves and enhances the existing character of the County, its townships,
and rural crossroads communities.
b. Land Use Element Goal 3: A variety of land uses that are coordinated within a
program and pattern that limits sprawl,preserves community and rural character,
minimizes land use conflicts, supported by an efficient and balanced
transportation system.
c. Land Use Element Goal 4: Land development regulations, guidelines,
techniques and/or incentives that promote the integrated achievement of all
Comprehensive Plan goals.
d. Parks and Recreation Goal 4: Healthy lifestyles, quality of life and community
building through the provision of a variety of affordable recreational facilities and
choice of leisure activities, while responding to the changing needs and interests
of County residents.
4. The amendment is consistent with this principle and these goals because implementation
will result in a healthier populace in Orange County.
5. The amendment is reasonable and in the public interest because it allows for the use of
Tobacco and Hemp Retail establishments while minimizing their exposure to minors and
avoids their concentration in any one area of the county through the application of
4
suitable and reasonable development standards.
The Board of County Commissioners hereby adopts this Statement of Approval and
Consistency and the findings expressed herein.
Jamezetta Bedford, Chair Date
5
Attachment 2
Ordinance # ORD-2024-014
AN ORDINANCE AMENDING THE
UNIFIED DEVELOPMENT ORDINANCE OF ORANGE COUNTY
Whereas, Orange County has initiated amendments to its Unified Development Ordinance (UDO)
to define, permit, and regulate the use of land to primarily be used for the purpose of"Tobacco and
Hemp Retail", and
Whereas, staff has found that the presence of Tobacco and Hemp Retail establishments within the
vicinity of youth can create an undesirable and unsuitable land use practice and should appropriately be
regulated to minimize opportunities for youth to be exposed to such retail establishments, and
Whereas, regulation of the primary or principal sales of Tobacco and Hemp retail products is an
appropriate land use regulation with the public interest of protecting health and welfare of residents,
particularly youth.
Whereas, the Orange County Planning Board has recommended approval of the proposed text
amendments, and
Whereas, the County has held the required public hearing and has found the proposed text
amendments are consistent with the goals and policies of the adopted Comprehensive Plan.
Be it ordained by the Board of Commissioners of Orange County that the Unified Development
Ordinance of Orange County is hereby amended as depicted in the attached pages.
Be it further ordained that this ordinance be placed in the book of published ordinances and that
this ordinance is effective upon its adoption.
Upon motion of Commissioner seconded by Commissioner
, the foregoing ordinance was adopted this day of
, 2024.
I, Laura Jensen, Clerk to the Board of Commissioners for Orange County, DO HEREBY CERTIFY that the
foregoing is a true copy of so much of the proceedings of said Board at a meeting held on
, 2024 as relates in any way to the adoption of the foregoing and that said
proceedings are recorded in the minutes of the said Board.
WITNESS my hand and the seal of said County, this day of , 2024.
SEAL
Clerk to the Board of Commissioners
TABLE OF PERMITTED USES
PERMITTED USE A=SUBJECT TO USE STANDARDS S=SPECIAL USE
CONVENTIONAL ZONING DISTRICTS ECONOMIC DEVELOPMENT DISTRICTS CONDITIONAL DISTRICTS
USE TYPE
0/ EDB- EDB- EDE- EDE- EDH- EDH- EDH- EDH- EDH- ASE- MPD- HP- REDA- NR-
RB AIR R1 R2 R3 R4 R5 R8 R13 LCI NC2 CC3 GC4 EC5 RM AS El 11 12 13 PID 1 2 1 2 1 2 3 4 5 CD CD CD CD-1 R-CD CD
RETAIL USES
Retail Uses Except as Identified
Herein sommilloolonso onsionnommonon MENNEN
Tobacco and Hemp
ME Retail
SERVICE USES ===NEW
Service Uses Except as
Identified Herein
Body Art(Tattoo
no BodyPiercing,etc.)
Eating and Drinking
Establishment;
Funeral Home
Garden Center
Massage Business
Short Term Rental
Small Host
Occupied
Short Term Rental
pied
Large-Host
Occu
Short Term Rental-
Non Host Occupied
Junkyard/Salvage
Article 5: Uses 7
Section 5.20: Standards for Retail Uses
(1) The following Multiple Uses are permitted in the O/RM zoning district when the
Principal Use type is Research Facility Without Manufacturing and shall adhere
to the standards of Section 5.19.3(8)(2):
(a) Financial Services
(b) Service land uses limited to Beauty & Barber Shops, Laundry and Dry
Cleaning Services
(c) Eating and Drinking Establishments limited to Nightclubs, Bars, Pubs,
Restaurants Carry Out and General
(d) Retail, limited to 12,000 sq.ft. of building area/
(e) Manufacturing, Assembly, Processing, and Distribution Uses—Other,
limited to Printing & Lithography
(2) Multiple Uses, identified in Section 5.15.2(B)(1), are permitted only in accordance
with the following standards:
(a) The site plan shall identify the square footage of each structure by type
of use.
(b) The Principal Use type of Research Facility Without Manufacturing must
be established on the site.
(c) The Multiple Use shall not exceed 25% of the total square footage of all
structures on the site.
SECTION1 • ' RETAIL USES
5.20.1 Retail
(A) Use Standards
(1) Specific Standards for the LC-1, NC-2, and EC-5 Zoning Districts
(a) Uses shall be limited to 12,000 sq.ft. of building area.
(b) No outdoor sales/displays shall be permitted.
(2) Specific Standards for the CC-3 Zoning District
(a) Uses shall be limited to 24,000 sq.ft. of building area.
(b) Outdoor sales/displays shall be permitted subject to the following:
(i) No more than 20% of the property area shall be utilized to
support outdoor sales/displays.
(ii) Displays shall not be located within any required parking, septic
disposal, or land use buffer area on the property.
(iii) Displays shall not block entrances and exists to the structure.
(3) Outdoor sales/displays shall be allowed in other districts subject to the following:
(a) No more than 25% of the property area shall be utilized to support
outdoor sales/displays.
(b) Displays shall not be located within any required parking, septic disposal,
or land use buffer area on the property.
(c) Displays shall not block entrances and exists to the structure.
5.20.2 Country Store
(A) General Standards for Evaluation
Orange County, North Carolina—Unified Development Ordinance Page 5-117
Article 5: Uses 8
Section 5.21: Standards for Miscellaneous Uses
(1) Outdoor storage of products shall be permitted in the rear yard of the primary
structure and shall be screened from view of adjacent properties.
(2) Outdoor storage areas shall not be permitted to encroach upon required parking
spaces.
(3) All structures and outdoor storage areas shall be located a minimum of 100 feet
from adjacent residentially zoned property.
(4) The site shall be located on a major road, as classified in the Orange County
Comprehensive Plan, unless permitted as an ASE-CD.
(5) Parking shall not be located in the front yard space.
(6) Application materials shall include a comprehensive groundwater study, for
facilities expected to use more groundwater on an annual basis than an average
single family residence (which uses 240 gallons of water per day) built at the
highest density the existing zoning district would allow. For example, if the
existing zoning district allows a residential density of 1 unit for 2 acres and the
proposed use is on a six acre parcel (which could yield 3 residences), the
proposed use(s) may use three times the water used by an average single family
residence (or 720 gallons per day, on an annualized basis) before a
comprehensive groundwater study is required. The water usage rates of any
existing use subject to zoning regulations located on the same lot shall be taken
into account when determining if a comprehensive groundwater study is required.
Said study shall detail:
(a) The amount of water anticipated to be used on a daily, weekly, monthly,
and annual basis by regulated uses located on the parcel (e.g., water
usage by bona fide farm uses is not required to be included);
(b) An analysis of the amount of groundwater withdrawal considered to be
safe and sustainable in the immediate vicinity; and
(c) An analysis of whether other wells in the vicinity of the proposed use are
expected to be affected by withdrawals made by the proposed use.
5.20.3 Tobacco and Hemp Retail
(A) Use Standards
(1) Tobacco and Hemp Retail uses must be located at least 1,000 feet from the
following land uses:
(a) Tobacco and Hemp Retail;
(b) Schools, including:
(i) Schools: Performing Arts, Sports, and Recreation,
(ii) Schools: Preparatory,
(iii) Schools: Technical, Trade, and Skill Training, and
(iv) Schools: Universities, Colleges;
(c) Parks and Recreational Facilities; and
(d) all Residential Uses.
SECTIONSTANDARDS FOR MISCELLANEOUS
5.21.1 Major Subdivision
(A) Standards for Conditional Districts
Orange County, North Carolina—Unified Development Ordinance Page 5-118
Article 10: Definitions 9
Section 10.1: Definitions
Tobacco and Hemp Retail
A retail store with principal sales and/or distribution of:
a) any product that contains tobacco or nicotine, irrespective of whether the nicotine is tobacco-
derived or synthetic, and is intended for human consumption, as defined by G.S. § 14-313(4),
including but not limited to: cigarettes, cigars, pipe tobacco, electronic cigarettes, hookah,
smoked or vaped tobacco substitutes, chewing tobacco, snuff, snus, dissolvable tobacco
products, and heated tobacco products. Excluded from this definition are tobacco products
approved by the USFDA for treatment of tobacco use and dependence.
b) any product that contains tetrahydrocannabinol (THC), irrespective of whether the THC is
hemp derived or synthetic. Excluded from this definition are products that contain no greater
than 0.3 percent THC.
c) any product that contains Mitragyna speciosa, commonly known as kratom.
Traffic Generation: Low
Uses which generate an average of less than 200 vehicle trips per day.
Traffic Generation: Medium
Uses which generate an average of between 200 and 800 vehicle trips per day.
Traffic Generation: High
Uses which generate an average of more than 800 vehicle trips per day.
Transmission Lines
a) For lines carrying electrical energy, transmission lines are those which carry 45,000 volts or more.
b) For lines which carry liquids or gases, transmission lines are those operating or designed to
operate at pressures of one hundred pounds per square inch or greater.
Travel Trailer
A structure that is:
a) Intended to be transported over the streets and highways (either as a motor vehicle or attached to
or hauled by a motor vehicle), and
b) Designed for temporary use as sleeping quarters, but that does not meet the definition of a
manufactured home.
Tree, DBH
Diameter at breast height of a tree, which is measured at 4.5 feet above ground surface level.
Tree, Critical Root Zone
The minimum area beneath a tree which must be left undisturbed in order to preserve a sufficient root
mass to give a tree a reasonable chance of survival. The critical root zone is approximately one foot of
radial distance for every inch of tree's DBH, with a minimum of eight feet.
Tree, High Value
A tree that meets or exceeds the following standards: for pine species, 14" DBH or greater, or 18" or
greater stump diameter, and for hardwood or wetland species, 16" DBH or greater, or 24" or greater
stump diameter.
Trip Generation Rates
The total count of trips to and from a study site per unit of land use as measured by parameters such as
dwelling units, acres, etc.
Twenty-Year Transition Land
Orange County, North Carolina—Unified Development Ordinance Page 10-62
Attachment 3 10
ORANGE GCOUNTY
HEALTH DEPARTMENT
Improving health. Inspiring change.
2024 Wednesday,April 24,2024
Board o
Cy Stober
Planning and Inspections Director
Chairperson The Orange County Planning Department
Aparna ■ 131 W.Margaret Lane,Suite 201
Hillsborough,North Carolina 27278
Vice-Chairperson I
Alison Stuebe, MD, MSc ]dear Mr.Stober,
ShielOn behalf of the Orange County Board of Health,I am writing to advocate for the implementation
"' Rodgers, of zoning restrictions prohibiting the opening of new tobacco,hemp,and vape retailers near schools,
parks, and other locations where youth congregate within our county. Such measures are essential
for promoting public health,particularly among our youth,and for creating environments conducive
Lee Pickett, to healthy living.
North Carolina law prohibits local governments from adopting regulations regarding the sale,
r.vla Nickelson, DDS distribution,display,and promotion of tobacco products,including e-cigarettes. However,NC local
governments have clear authority to regulate land uses through zoning,including regulating where
particular land uses are permitted. Under land use regulation, local ordinances can regulate the
Keith Bagby, BS location of retailers selling tobacco and hemp products. Two other NC counties — Wake and
Cumberland—and several NC municipalities have recently enacted Land Development Ordinances
to prevent new tobacco,hemp,and vape shops from opening near places where youth congregate,
including schools,libraries,places of worship, and parks. At the end of this letter, I have included
Tony Whitaker, PE links to copies of these ordinances for your reference. I am also 'including some sample language
based on the latest guidance from the Region 5 Tobacco Prevention Branch recommending the
distance that these new facilities are required to maintain from schools,libraries,or parks.
CPP Restricting the proximity of tobacco retailers to schools and parks helps protect our children and
adolescents from the harmful effects of tobacco use. For years,adolescent smoking rates have been
declining,though nearly one in five high school seniors still use tobacco. However,adolescents'use
Bruce of e-cigarettes, nicotine vapor devices, hookahs, and small cigars has gone up dramatically,
Baldwin,OD, threatening to completely erase decades of progress. Numerous studies have shown that exposure
to tobacco marketing and easy access to tobacco products significantly increase the likelihood of
youth initiating smoking or using napes and other tobacco products. By implementing zoning .
Rachel Royce, PhD, MPH restrictions, we can reduce the visibility and availability of these products in areas frequented by
children and teenagers,thereby lowering the likelihood of experimentation and addiction.
County Commissioner Establishing tobacco retailer zoning restrictions near schools, libraries, and parks sends a clear
Amy Fowler, MD, MPH message about our community's commitment to promote health and well-being. It demonstrates
that we prioritize the safety and development of our youth and are dedicated to creating environments
that support healthy choices. By creating tobacco-free zones around educational and recreational
facilities,we can foster an atmosphere where children and families can engage in physical activity and
social interactions without the influence of tobacco-related activities.
919 245 2405 > 300 West Tryon Street Hillsborough, IAC 27278 > orangecountync.gov
11
ORANGE COUNTY
HEALTH DEPARTMENT
Improving health.Inspiring change.
These zoning restrictions align with broader public health initiatives aimed at reducing tobacco use and its
associated health burdens. Tobacco remains a leading cause of preventable death and disease, and efforts to
limit its availability and accessibility are critical components of comprehensive tobacco
These zoning restrictions align with broader public health initiatives aimed at reducing tobacco use and its
associated health burdens. Tobacco remains a leading cause of preventable death and disease, and efforts to
limit its availability and accessibility are critical components of comprehensive tobacco control strategies. By
enacting zoning restrictions near schools,libraries,and parks in Grange County,we can contribute to the overall
reduction in tobacco use prevalence and its devastating health consequences within our community.
The Change County Board of Health urges the Orange County Planning Department to follow the recent actions
of Wake and Cumberland counties and consider the implementation of tobacco.retailer zoning restrictions near
schools, libraries, and parks as a proactive measure to protect the health and well-being of our residents,
particularly our youth. By acting on this issue,we can create healthier environments,reduce the prevalence of
tobacco use,and pave the way for a brighter,tobacco-free future for generations to come.
If you have questions or would like to discuss this further, please feel free to reach out. Thank you for your
attention to this important matter.
Sincerely,
Aparna]oanal
Chairperson
The Change County Board of Health
300 West Tryon Street
Chapel Hill,NC,27878
919 245 2405 300 West Tryon Street Hillsborough, IAC 27278 . orangecountync.gov
12
ORANGE COUNTY
HEALTH DEPARTMENT
Improving health. Inspiring change.
APPENDIX:
County Ordinances:
1. Wake County Unified Development Ordinance(Section 4-64-Tobacco and Hemp Retail):
Ids:/Ilibrary.rnuniccxle.cominc/wake county-/codes/unifited development ordinance?nndeld=UNDE€)R AR'1'411SRE,
lr1'6USST€OD 4-6.4T(-)1 ll?RIi
2. Cumberland County Unified Development Ordinance(Section 426-Tobacco and Hemp Retail-pp.111):
h s: /www.cn.cu mberland.n c.us c -so n' ocum cnts ordina es i 1
cotton,-•r.onin�L-consolidated-ordinance-fndoptcd-1-16-241.pd£rsfvrsn=4014b766 2
Municipal Ordinances-.
1. Town of Apex Unified Development Ordinance(Section 4.4.5.13a-pp.64):
haW:1/www.aj2cx,nc.n g/[)ncument€:enter/1'ic-\v/24/Unified-Develo12ment-Ordinance-UD0-111)1�-�-bidld
2. Town of Kaightdale Unified Development Ordinance Chapter 5(Section 5.5.E-pp.10):
lstlps::'JMy:w.kniy;hfiles/tiplt)iids/dcvcl(42mentqce6cc-;/udn/05-uc-,pui fic-standards-
IGIM,pd
3. Town of Rolesville Unified Development Ordinance(Section 5.1.4.T-pp.36):
Itttps:(1�c��•�v.rolcs itlrnc.l o�(.itc,Icicfauilt/flesAuploads(pl:�iinislg/afn4ncicd
Ido -
combined with appendice. 20?30404.pdf
4. Town of Zebulon Unified Development Ordinance Article 4(Section 4.3.5.UU Vape,Tobacco,&CBD Shop-pp.54):
lltV://wkv%v.tc)wnoFsebidoii.org/sites/default/file+/uploads/planning/UC)€3 Doc/article 4 uses 09.11.2023.12d
Recommended f Sample Language:
• Characteristics/Definition:
o Tabacm Vape,and Hemp Retad means the principal sales and/or distribution of
• Any product that contains tobacco or nicotine,irrespective of whether the nicotine is tobacco-derived
or synthetic,and is intended for human consumption,as defined by G.S.§14-313(4). As used in this
subchapter,"tobacco product"includes but is not limited to:cigarettes,cigars,pipe tobacco,electronic
cigarettes,hookah,smoked or vaped tobacco substitutes,chewing tobacco,snuff,snus,dissolvable
tobacco products,and,heated tobacco products.Tobacco product does not include nicotine
replacement products approved by the USFDA for treatment of tobacco use and dependence.
• Any product that contains tetrahydrocannabinol(THC),irrespective of whether the TI-IC is hemp
derived or synthetic.Products that contain no greater than 0.3%THC are exempt.
■ Any product that contains Mitragyna speciosa,commonly known as kratorn.
■ Any electronic device that delivers nicotine,THC or other substances to the person inhaling from the
device,including,but not limited to,an electronic cigarette,electronic cigar,electronic pipe,Vape,or
electronic hookah.
• Tobacco and hemp retail shall also mean any person who primarily sells,offers for sale,or does or
offers to exchange for any form of consideration,tobacco,tobacco products,or tobacco paraphernalia.
o Regarding"principal sales and/or distribution",we recommend any retailer that dedicates at least fifty percent
(50%)of customer-accessible sales and display area to the sale of Tobacco,Vape,and Hemp products as outlined
above be classified as such.
• Zoning Requirements:
o (1)Tobacco,Vape,or Hemp retailer(s)shall not be located in any building,or portion thereof,that is:(a)Within
1,000 feet of an existing Tobacco,Vape,or Hemp Retailer.(b)Within 1,000 feet of a:(i)Residential land use
including any open space established as part of the residential subdivision approval process,(fi)School(public,
private,or specialty),(iii)Public or private library,{iv)State licensed childcare facility,(v)Public park or
recreational facility,or(vi)group quarters(halfway house)or residential habilitation support facility.(c)
Measurement shall be made in a straight line,without regard to the intervening structures or objects,from the
nearest portion of the building or structure used as the part of the premises where a Tobacco,Vape,or I lemp
retailer is conducted to the nearest portion of a building,structure,or open space area of a use listed above.
919 245 2405 > 300 West Tryon Street > Hillsborough, NC 27278 > orangecountync.gov
13
DRAFT
1 Attachment 4
2
3 MEETING MINUTES
4 ORANGE COUNTY PLANNING BOARD
5 MAY 1,2024
6 REGULAR MEETING
7
8 MEMBERS PRESENT: Adam Beeman (Chair), Cedar Grove Township Representative; Lamar Proctor(Vice-
9 Chair), Cheeks Township Representative; Delores Bailey, At-Large Representative; Beth Bronson, At-Large
10 Representative; Marilyn Carter, At-Large Representative; Statler Gilfillen, Eno Township Representative; Chris
11 Johnston, Hillsborough Township Representative; Steve Kaufmann, Bingham Township Representative; Liz
12 Kalies, Chapel Hill Township Representative; Charity Kirk, At-Large Representative; Whitney Watson, At-
13 Large Representative.
14
15 MEMBERS ABSENT: None.
16
17 STAFF PRESENT: Cy Stober, Planning & Inspections Director; Patrick Mallett, Deputy Director— Development
18 Services; Perdita Holtz, Deputy Director— Long Range Planning &Administration; Tom Altieri, Senior Planner
19 — Long Range Planning &Administration; Taylor Perschau, Current Planning and Zoning Manager; Lauren
20 Coffey, Planner I.
21
22 AGENDA ITEM 7: UNIFIED DEVELOPMENT ORDINANCE (UDO)TEXT AMENDMENT—TOBACCO AND HEMP RETAIL USE-
23 To review and make a recommendation to the BOCC on proposed amendments to the LIDO pertaining to
24 "Tobacco and Hemp Retail" uses. This amendment is in response to a petition made by the BOCC and was
25 reviewed at the April 3, 2024 ORC meeting. It is scheduled for BOCC public hearing on June 4, 2024.
26
27 PRESENTER: CY STOBER, PLANNING DIRECTOR.
28
29 Cy Stober: I'm pleased to be here this evening to present two Text Amendments. I'm happy to talk to
30 before we close about the third one that the Ordinance Review Committee reviewed last month. We are still
31 working on that, but I can provide an update on that. I am pleased to present this evening the UDO Text
32 Amendment to permit, define, and regulate tobacco and hemp retail uses. I'll acknowledge, I have underserved
33 you. I don't have a process slide at the beginning of my presentation. I got lazy because I brought this to the
34 ORC last month and nearly all of you were at that meeting, so just a reminder of your responsibilities tonight
35 are to consider the Text Amendment before you to discuss it and then to make a recommendation to the Board
36 if you're prepared. There is an option for you to continue the discussion to a later meeting if you'd like. Those
37 are your options this evening.
38
39 Mr. Stober overviewed the definition of Tomacco and Hemp Retail Uses, referencing the presentation provided
40 to the Ordinance Review Committee.
41
42 Lamar Proctor: You said the proposed change would put this as a Conditional Use? So it wouldn't So, a
43 permitted use by right of, in any zoning district?
44
45 Cy Stober: Correct.
46
47 Lamar Proctor: So existing uses would be grandfathered in if they already exist?
48
14
DRAFT
49 Cy Stober: Correct.
50
51 Lamar Proctor: And if you wanted to do a new hemp stores or whatever, vape shop, you would have to do
52 a conditional zoning application?
53
54 Cy Stober: Mm hmm.
55
56 Chris Johnston: And if you wanted to make any changes to your existing hemp shop you'd have to
57 become in compliance, which means you'd have to come before–
58
59 Cy Stober: That's correct, so you'd be regulated by Article 8 of the LIDO which is non-conforming
60 uses, and you'd have to bring it into zoning conformance, so you'd have to go through the public hearing.
61
62 Lamar Proctor: If there's already a retail—because these places are generally part of a strip mall—if
63 there's already a strip mall but they don't have a vape shop, and we enact this, and now a vape shop wants to
64 come in, that whole parcel has to apply for a conditional zoning to allow that use.
65
66 Cy Stober: The property manager would need to be the applicant or the co-applicant, that's correct.
67 I'll also remind you that this is in the County's jurisdiction so the unincorporated areas of the County, not the
68 municipalities. And it doesn't regulate the incidental sales of any of these products, so a convenience store on
69 any North Carolina highway can sell these products as part of their inventory. Yeah, they can have Snicker
70 bars and beers and pork rinds and these, and we can't do anything about that.
71
72 Lamar Proctor: Electronic cigarettes and–
73
74 Cy Stober: Exactly.
75
76 Adam Beeman: That's not the majority of their sales.
77
78 Cy Stober: The principal sales. So, as a land use matter we cannot, and this is, there's a lot of case
79 law nationally and at the state level about this, is we have to regulate the principal use and there are, like you
80 go back to adult uses, you cannot have an adult use as an incidental use on a property, but it does inform the
81 use of the entire property, but for retail purposes you really would have to demonstrate that it's the primary
82 purpose of that store is to sell these products.
83
84 Lamar Proctor: I support this amendment because these shops are essentially selling marginally legal
85 items that—so I work in criminal law, so I see this where scheduled substances, Schedules 1-6, you get
86 around them by making analogs and various different things and that's what is sold at these places. I just say
87 that for what it's worth.
88
89 Beth Bronson: To be clear, there is no tobacco retail use regulation is what you're saying?
90
91 Cy Stober: Currently.
92
93 Beth Bronson: Yes. So, this will be tobacco and hemp retail, so anybody who was selling tobacco and
94 not hemp would also be subjected to the same ruling?
95
96 Cy Stober: Yes, so if we go back to the definition, it's retail. So, if it's any one of these three
97 products.
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98
99 Beth Bronson: Certainly, and I'm familiar with them and I'm familiar with these stores and the things that
100 do exist and to his point about how many already exist within these existing strip malls, it almost feels like a
101 matter of right for them to be able to exist because it's been allowed to be for so long, so I'm trying to —
102 grandfathered in, but again, if that business owner wanted to make any changes to that business or to that
103 building they would not be able to, they would have to come in and apply and every store would be affected.
104
105 Cy Stober: That's not entirely true. There are some liberties allowed for non-conforming uses,
106 especially if they're contained within the building at it is today, so you can make internal improvements, you
107 can't make additions, you can't expand the use, you can't make it more intense. But we're not stopping
108 someone from pulling a building permit and fixing their plumbing or making a facade improvement or
109 something like that.
110
111 Beth Bronson: Could they put a parking lot in?
112
113 Cy Stober: No.
114
115 Beth Bronson: And just for me and my perspective, what was the attorney's rationale for not including
116 those in LC1, NC2, GC3, GC4, EC5? What was the reasoning for not including that as like with a special
117 asterisk, I guess?
118
119 Cy Stober: The County does not want them.
120
121 Beth Bronson: Okay. I mean, retail wise they are quite popular. And I'm not saying that the County is
122 right or wrong or the retail purchasers are right or wrong. Just that I would caution, this is creating a very
123 stringent rule and isolating one particular type of retail, and so I would just caution against that to Planning
124 Board members as we make this recommendation.
125
126 Charity Kirk: How are adult stores zoned now in general? Why not shove it into that category?
127 Because I remember a long time ago when we were talking about Dollar Stores, there was something about,
128 well, if we rezone it, it could have an adult store, but then there's school distances and —so it's 12 and 13. Why
129 not limited to 12 and 13?
130
131 Cy Stober: I'll be frank, that was in one of the drafts and Planning staff thought if the goal is to limit
132 their presence entirely in the County, that placing it in a Conditional Zoning District would be the way to do
133 that. And it was acceptable. But that was drafted, as well, the place to do exactly that.
134
135 Charity Kirk: So what, what are the pros and cons of 12? It just seems like limiting it entirely, making it
136 super difficult, or making it much more limited.
137
138 Cy Stober: Sure, I mean allowing it in a few zoning districts would make it more difficult to challenge
139 that the County's attempting to completely prohibit the use, and so that's the advantage there. But it could be
140 any one, I'm thinking particularly in Economic Development Districts where we have zoning for like Economic
141 Development Buckhorn, so the whole West Ten area over near Gravelly Hill Middle School you would still
142 have the radius restriction, but, for example the properties north of the interstate near the weigh station, I think
143 there's some that are zoned for industrial there. They would have to conform with all the other standards, like
144 driveway access and so forth. But it would be primarily in the Economic Development District. So, south of
145 Hillsborough, east of Mebane and right at the Durham County line would be the areas where you could see
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146 that. And I haven't done a radius analysis to see if there, what those properties would be that could allow for
147 that but-
148
149 Beth Bronson: Much less, would a retail space align with the current neighborhood businesses in those
150 Economic Development Districts, correct? I mean, those are warehouse, manufacturing.
151
152 Cy Stober: It would be consistent with the uses in the EDD, in the Durham County line. And it
153 wouldn't be inconsistent, I could see it going in over at Buckhorn as well if it could qualify for the radius
154 restrictions. But, again, this is the staff presentation. To your point, I think the proposal of restricting to NR-CD
155 makes it bit more vulnerable to legal challenge, but I think that we're still permitting the use in the county, we're
156 not prohibiting it, we've just required a high burden of responsibility by the applicants to qualify for that use.
157
158 Chris Johnston: And that was going to be my point. We do have uses in the use chart that aren't allowed
159 anywhere. Like there are ones that are not allowed at all. Tobacco Processing, Preparation, Packaging and
160 Distribution, as far as I can tell isn't anywhere. Starch, Vegetables, Fats, and Oils Manufacturing, we have use
161 cases where they're not allowed anywhere and it's not necessarily a feeling of targeting.
162
163 Charity Kirk: What is the Health Department planning on doing?
164
165 Cy Stober: They support the amendment. I don't know if they've gotten into the level of nuance that
166 you have about which zoning district they would like to see it in, but they support the amendment.
167
168 Charity Kirk: Was the goal of the commissioners to eliminate it via zoning?
169
170 Cy Stober: To tightly restrict it with a goal of tobacco cessation. I'd have to go back and look at
171 Commissioner Fowler's language, but the goal is to minimize as much as possible exposure of minors to these
172 products and she was pretty frank in her language. Wake County did this recently, I think they did allow it in
173 industrial districts, which they have less than we do because most of their industrial districts are actually in the
174 incorporated municipalities, but I don't know that, I'm guessing here, hypothesizing. We're following in the lead
175 of Wake, and I think Harnett County now, and the idea is to use this to broker a conversation with the
176 municipalities about doing the same in the municipalities in Orange County.
177
178 Chris Johnston: That was going to be my follow-up question is if there is that partnership with the
179 municipalities, because if we do it and they don't, what are we doing, right? I mean, we're still doing
180 something, but it's like half.
181
182 Cy Stober: Commission Fowler was I think pretty clear that she wants to set the example and she
183 had the consensus of the Board.
184
185 Marilyn Carter: Is there anything that would prevent our Board to make a recommendation that we'd like
186 to see actually stricter, implementation of the change to some of the districts that we talked about earlier?
187
188 Beth Bronson: How can it be more strict than a conditional district, you know?
189
190 Marilyn Carter: Well, we just talked about some zoning areas that it sounded like would not be subject, for
191 example, in the Economic Development Districts, correct, where this change would not be applicable.
192
193 Cy Stober: Right, they would still have to go through the zoning process as presented with the
194 amendment that staff is bringing tonight. To Ms. Kirk's point, if they were allowed by right or with the
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195 development standards in the industrial or the commercial districts, then they could potentially be placed there
196 with a simple permit application, Zoning Compliance Permit, to the staff and we would permit it if they could
197 prove that they meet the radius requirements, as well as all of our other development standards.
198
199 Marilyn Carter: So, I guess my question is to the Board. Does it feel that there should be a stricter
200 implementation beyond what we've already discussed? I wasn't sure. So, if that's not the case then I'll move
201 on to my other question.And my other question is how many businesses are currently grandfathered in —
202 clearly the support from myself and sounds like the rest of the Board for this ordinance—how many businesses
203 will be grandfathered in that are in existence right now?
204
205 Cy Stober: I don't know of any at this time in the county. Again, in the unincorporated areas of the
206 county there may be some, but I'm not aware of them. And if they, if someone registered a complaint we
207 would, of course, investigate and have to determine when they were given the Certificate of Occupancy and if
208 they already have it and they're not making any expansions or other intensifications to the property, they're
209 allowed to persist there indefinitely.
210
211 Marilyn Carter: Okay, well, that's good to know there's no, there's no one under the grandfathering
212 situation.
213
214 Cy Stober: No, there's no sunset clause in this amendment.
215
216 Delores Bailey: What happens if marijuana is legalized in North Carolina?
217
218 Cy Stober: That's a great question and it's going to be a big headache for me. I don't know, Mr.
219 Bailey, I just don't know. Because there's so many variables, and states have regulated marijuana
220 recreationally or medicinally in so many different ways, so I just don't know. I mean, I grew up in Ohio which
221 just legalized medical use of marijuana, but they're doing it essentially in like with an ABC permit. Other places
222 are treating it like it's any other business. We don't know what might happen with statewide legalization.
223
224 Beth Bronson: So, in North Carolina they issued 30 growers permits for hemp. And so, to that point, 1
225 would think medical marijuana is very much coming really quickly.
226
227 Cy Stober: I haven't seen the draft legislation. I have seen that it is markedly different from what was
228 introduced 2 years ago in the short session, and then what was debated in the long session. I'm watching it
229 because it's going to be a major amendment to our Ordinance and I imagine we'll have a lot of public input on
230 that, but I really don't know how the state proposes to—and just to be blunt, if it's for medical use it's much
231 simpler for us. It will be likely licensed and affiliated with some sort of medical institution. It becomes a much
232 simpler conversation than if we're going with retail dispensaries like they have in Nevada or where else,
233 Michigan, I don't know what we'll do. And I don't know what the pleasure of the Commissioners will be in terms
234 of regulating it because it's a very political conversation. I think that the, to probably speak out of turn, I think
235 that the discussion about youth targeting will not change, but the politics of who should have access to these
236 products and why and under what circumstances is also to be determined.
237
238 Beth Bronson: I do want to piggyback off that and to your point about that, when you make it a
239 Conditional District or say that it has to be the primary use, what you're doing is maybe excluding those
240 businesses or creating a barrier for those businesses to establish themselves in the incorporated county area
241 that we have jurisdiction of, however you are driving those tobacco and hemp retail products into locations
242 where minors are completely welcome, like a gas station where that's not their primary use, but it's plastered
243 all over the walls, it's plastered behind the counter, it's plastered to the corner of the counter, so what you
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244 would be doing is effectively saying, "well, you can't have a tobacco and hemp dedicated store but you could
245 have a gas station that makes 49 percent of the profits from those materials,"and I think that needs to be
246 considered with Commissioner Fowler having really good intentions and understandably so, wanting to create
247 some form of regulation, I think you have to be careful about what that reaction is going to be. The unintended
248 consequence is that kids are at gas stations, kids go to gas stations after the school bus stopped and if they
249 see those hemp products and those tobacco products in there and they continue to, and it's not taken away
250 from those public locations where everybody is allowed, and again designated like an ABC store. I just worry
251 that you're creating more of a — it's not exactly harm reduction.
252
253 Cy Stober: So, the modification to the motion could include that concern.
254
255 Beth Bronson: To my point about making it restrictive, my recommendation would be to add the delta to
256 certain commercial districts, having them meet that thousand feet to the schools or things like that. Does that
257 make sense to everybody? Like the idea of allowing them or you could do a Conditional Zoning, but as well,
258 making it as contingent on meeting these conditional requirements of the thousand feet from the school and
259 there's a few others, I think, but then allowing them in NC2, GC3, EC4, ECS, LC1 potentially, as a matter of
260 those Rural Nodes could potentially use a retail store like this and drive business to an area like Dodson's
261 Crossroads or something like that. Not to say that it would be positive or negative, but again, only 18 year olds
262 are allowed in that store anyways, so I'm just wanting to put it out there before we make a motion on this
263 particular one, is there anything anybody thinks about that?
264
265 Adam Beeman: So let's just say we pass this, the Commissioners have passed it as is right now. What
266 are the hurdles that accompany it?And is it just a foregone conclusion that they would be denied no matter
267 what or is it opportunity that if they came in and went through all the hurdles to meet that Conditional District, is
268 it actually feasible that they could be approved? Or are we just making it as difficult as possible just as a
269 blanket, "we don't want'em and that's that," because if there's no actual way that they can get approved, then
270 I'm not sure what we're doing. If there's a potential that someone could come in and meet all the obstacles and
271 the hurdles and then say, "okay, you're approved,"then I could say let's move forward. I don't know why
272 Hillsborough and Chapel Hill are going to have all these locations and you can put all the pressure on them
273 you want, but Chapel Hill doesn't listen to the County. So if they'll continue to sell them all over the place and
274 we're really regulating what little bit of land we can which probably never have a hemp or a retail store there to
275 be begin with, so I just want to know if we go through with it, is there a way that someone could actually come
276 to the Board and get approved, or there's no way, there's so many hurdles that it's never going to happen.
277
278 Cy Stober: So, we would give them the due process and ultimately that would be a decision of the
279 Planning Board and the Commissioners. As a Conditional District, I wouldn't make a recommendation on the
280 actual action, I would just make a recommendation on your review process and giving the applicant the due
281 process. If you determine that they meet this, this standard, which is fairly straightforward, and they meet all
282 the other development standards with their site plan, and there's no land use conflict in our determination and
283 yours, then it would be difficult to find an objection to it, and it also needs to be consistent with the
284 Comprehensive Plan, and so, there are a number of references in the Comprehensive Plan to healthy
285 lifestyles, so there it would be pretty easy to find an inconsistency there,just to kind of hash it out on the fly. To
286 be honest, I don't know what the determination of the Planning Board and the Commissioners would be, but—
287
288 Adam Beeman: But they have an opportunity and I guess that's the big thing is if I come in and I meet all
289 the requirements then you don't really have a leg to stand on unless you find some, like I said, some other
290 reason, so you'd have to get creative and find a reason. Just long as there was an opportunity for them to go
291 through the process and be approved or denied. Because at the end of the day, I get they don't want the use,
292 and so we're not technically taking it away from them, they still have the opportunity to come and apply, and
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293 then to Beth's point, if they really wanted it they could just get creative and so, 51 percent paper mach6 and
294 then other 49 percent of their profit. They can get around it if they really wanted to, but you're trying'to make it
295 as difficult as possible, so I guess that's where we're at.
296
297 Chairity Kirk: Do we want them to try and get around it though? They could have a candy store and
298 then sell 49 percent.
299
300 Adam Beeman: We can't control that aspect, that's legally not our right to control.
301
302 Cy Stober: That's correct.
303
304 Chris Johnston: Technically, they'd still have to sell candy too, right, like the sales I think would have to be
305 51 percent or whatever and at that point it's a different business.
306
307 Cy Stober: At that level of investigation, if we were charged with investigating non-conformance
308 and/or violation of this use, then yeah, we'd have to get to that level and go through the records, yeah.
309
310 Beth Bronson: And I only meant that as I see more and more gas stations using their sale, their
311 marketing and, and their availability of the vendor,just like a grocery store, they're renting out space to these
312 hemp products and to the tobacco products for shelf space, and they're only going to be required to do it more
313 if there's no actual dedicated facility to do that, and since we are a state that's not going to have liquor in the
314 grocery store, you know, or even in a dedicated store for wine and liquor— I'm not saying'that I'm for or
315 against it, I just find it to be, to your point about putting it as a Conditional versus putting it in the GC or LMC
316 with the stipulations, it would most likely be easier and it would still most likely be in one of those districts in
317 general... is that the understanding for that Conditional Zoning? So, like it would already technically be in a
318 commercial area because it couldn't be in a residential area.
319
320 Cy Stober: Correct.
321
322 Beth Bronson: So, it would fall into 12, 13 and NC3 and NC4, EC5, you couldn't apply for it if it was R1,
323 you couldn't apply for it if it was—you could use agricultural, but–
324
325 Cy Stober: No, I mean, our agricultural zoning is Agricultural Residential-
326
327 Beth Bronson: Residential, exactly. I think that I would retract my recommendation that it would be those
328 specific commercial and leave it as a Conditional District in the sense that any applicant would already be in
329 one of those districts, it would just be conditional to the tobacco and hemp if there was an approval on this or
330 consensus.
331
332 Charity Kirk: A lot these stores are renters, they don't own the property, so that puts a burden on the
333 property owner and then the other thing is, is Conditional Zoning Districts cannot change the layout of stuff, so
334 they are set once it becomes a Conditional Zoning District. It's not flexible anymore.
335
336 Beth Bronson: If it's new construction, but if it's existing construction, then that's not gonna –
337
338 Cy Stober: But, no, Ms. Kirk is correct, if you have to get conditionally zoned, then your site plan
339 would reflect the existing structures and that would be what's approved.
340
341 Charity Kirk: Can't change anything until you go back through the whole process.
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342
343 Cy Stober: You can have a phase plan that allows for future development and it can be confined to
344 areas.
345
346 Charity Kirk: If you have to plan for that future development, which is really challenging.
347
348 Cy Stober: Correct.
349
350 Charity Kirk: I mean, I'm more of the 12, 13, 1 think.
351
352 Cy Stober: That's, and so that is the determination of the Board and I'll—
353
354 Charity Kirk: I'm just going to put that out there.
355
356 Chris Johnston: Andl think that's the question that we have going forward, is where does that actually live?
357 1 guess Adam made a really great point which is are we wasting applicant's time if it at the end of this, the
358 County Commissioners have expressed to everyone we want this out of the County, we're wasting people's
359 time and money and effort, our time and everyone's time if the end point is the Health Board wants it out and
360 the County Commissioners want it out, like by putting it in a zone but leaving it Conditional, we're making
361 everyone go through a lot steps to end up with a deny that has been expressed by the County Commissioners,
362 and if that is the end goal, sticking it in an "I"or sticking it in one or two others isn't going to make a lick a
363 difference, we're going to be sitting here doing nothing.
364
365 Cy Stober: If you placed it in an "I" as with the development standards it would be permitted.
366
367 Chris Johnston: Oh, it would be permitted. I apologize, I misunderstood, I thought that'd be Conditional at
368 that point.
369
370 Cy Stober: Let me explain, I'm sorry—
371
372 Beth Bronson: I'm just saying that any applicant would already be in an 12, an 13, NC4, GC4, GC3, NC2,
373 LC1, they won't be in a residential or agricultural residential area, so the applicant would come from any of
374 those other ones except residential.
375
376 Charity Kirk: They could be anywhere; they could be anywhere.
377
378 Beth Bronson: So what, what is the definition of 12, 13 that makes you want it?
379
380 Charity Kirk: Well, it's just where the sex stores are. So, someone thought about this as adult area.
381
382 Cy Stober: To minimize exposure.
383
384 Charity Kirk: Minimize exposure to minors, so I'm just sort of tracking that some thought has gone into
385 sex stores.
386
387 Chris Johnston: Okay, I guess I would retract and say that if it's in a position where it is permitted by right
388 and it should be in there, then that then removes the "we're working through and wasting everybody's time"
389 argument. But then I guess the question is, we can recommend but is the County Commissioners going to go
390 along with something along those lines if they're trying'to get it out.
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391
392 Charity Kirk: How restricted do we think it should be is the question.
393
394 Cy Stober: And I'll be happy to process whatever recommendation you make and present it to the
395 Commissioners, that's my job.
396
397 Lamar Proctor: I agree with Charity, these places are selling mood altering substances, that is their
398 primary product. And they tend to be attractive uses. When I was a prosecutor in Durham, these places bring
399 in bad elements because of the nature of their business. Could it be an 12 or 13 as a Special Use or a subject
400 to use standards?
401
402 Cy Stober: Well, certainly subject to use standards.
403
404 Lamar Proctor: And I'm not clear on Special Use so that's why I'm asking. That would require a permit
405 and that's usually for things that are technical.
406
407 Cy Stober: Right, and Ms. Bronson and Mr. Beeman are on the Board of Adjustment, and so it would
408 be a process to go through, but it would actually be fairly clear cut. If they meet the development standards
409 and they've shown that they're not going to harm any of the adjoining neighbors, it would have to be approved.
410 It's a very objective analysis.
411
412 Lamar Proctor: So the question really is, are you going to set such a high bar that it's virtually impossible
413 to get one or you going to shove them off into your 12, 13—
414
415 Cy Stober: Or both. You could leave it an NR-CD and allow it with development standards in the
416 industrial zoned districts if that's the pleasure of the Board.
417
418 Lamar Proctor: And it could be subject to use standards in 12, 13. Because of the additional 1,000 foot
419 restrictions and all that.
420
421 Cy Stober: So, yes, and I would as strongly as I can encourage you to require that, otherwise, I'll
422 have to make a different recommendation to require the use standards to the Board and I don't want to do that
423 if I don't have to.
424
425 Beth Bronson: But you're saying use the existing standards that you've put out. Not, I know you're not
426 saying that, sorry.
427
428 Cy Stober: No, I am, yes. I'm trying to be emphatic as I can, but I serve at your pleasure. Not trying to
429 tell you what to do, but I really need you to do that, otherwise, I'm going to have to make a different
430 recommendation.
431
432 Marilyn Carter: And can we ask Lamar to articulate a potential motion to validate it with the Planning
433 Director?
434
435 Adam Beeman: Well, so before we make a motion, I guess we have to debate it and agree that we want to
436 put that forward because if it's not going to go anywhere then —
437
438 Charity Kirk: So, the discussion is keeping the proposal, and then also adding it to 12, 13, with the
439 special—
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440
441 Lamar Proctor: Permitted, subject to use standards.
442
443 Charity Kirk: Yes, so that we're giving a little bit more freedom,just a little bit.
444
445 Lamar Proctor: Is that a fair assessment of what—
446
447 Cy Stober: Yeah, and like I said, it matches the original drafted amendment, and after some
448 discussion we minimized it to just the Conditional District. So it's consistent with what the Attorney's Office and
449 the Planning staff have already discussed, so you're in line with prior discussions. I'm happy to share that.
450
451 Adam Beeman: I guess the big question is, is there a majority of us that feel like Lamar's motion is worth
452 discussing any further or approving.
453
454 Marilyn Carter: I'd like to hear it articulated.
455
456 Chairty Kirk: He's not saying to make the motion, Marilyn asked him to make the motion.
457
458 Adam Beeman: So, Lamar's idea, how's that? Is everyone on track with that or—
459
460 Chairty Kirk: I think it's my idea.
461
462 Lamar Proctor: It's her idea.
463
464 Chairty Kirk: My idea. I don't think he's for it, I'm getting that sense.
465
466 Lamar Proctor: I'm actually... I see the issue. This discussion has helped me clarify the issue. This is a
467 use that is, once again, it sells mood altering substances in a lot of ways, it's an attractive use, especially to
468 young people, the way it's marketed, the products it sells. I know from personal experience working in law
469 enforcement that these places tend to not bring in the best elements, so I do think that they are far more akin
470 to sexually-oriented business than they are to just like a standard commercial establishment. I think I would be
471 fine either way with it being 12, 13 as a subject use standards or just as Conditional Zoning. I guess part of what
472 we've discussed is the people who really want these businesses would have to go through a lot of steps for
473 Conditional Zoning that they wouldn't have to go through if it was 12, 13, subject to use standards.
474
475 Cy Stober: That's correct. The Zoning Compliance Permit and staff review does determine if it's
476 compliant with these standards.
477
478 Lamar Proctor: And these places already exist primarily in strip malls in municipal areas and if we made a
479 more restrictive, Conditional Zoning only, then that would essentially limit it's spread, and then it would be up to
480 municipalities on how to deal with them. There's kind of a background issue of the legalization of marijuana,
481 but that's a different issue, but I could see these establishments, if it became a permitted legal retail sale of
482 marijuana allowed in North Carolina, which I don't think is going to happen immediately, but I could see these
483 places converting into that, but that's further down the road.
484
485 Marilyn Carter: So, I'll just weigh in, because I did not understand that and that is why I wanted to make
486 sure I heard it articulated at length. That Charity's recommendation, which I understand the intention, I think it's
487 a good one, but it would also weaken the requirement that's been presented to us, so because it will weaken
488 the requirement, I personally will vote against moving in that direction now that I understand it it.
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489
490 Lamar Proctor: As in 12, 13, right?
491
492 Marilyn Carter: And vote for the original proposal.
493
494 Chris Johnston: Is there another proposal where it's not in any district? Is the Conditional District a waste
495 of time?
496
497 Beth Bronson: Like it's got to be reserved to a municipality.
498
499 Chris Johnston: And I guess, Cy, like in terms of legality, if a tobacco or vape shop challenged this or
500 something' along those lines, if it was in no district, is that putting us in a precarious position?
501
502 Cy Stober: I don't know. I'd have to ask the Attorney's Office. I'm not an attorney, so I don't know.
503
504 Beth Bronson: So what you're doing here is you would be defining tobacco and hemp retail, and you're
505 saying "nowhere."
506
507 Cy Stober: What I can tell you is that this was originally drafted by the Attorney's Office and it did
508 permit the use with the use standard, so this was an unusual amendment, it was not drafted by Planning staff,
509 it was drafted by the Attorney's Office, and then given to us for review and discussion and we discussed it,
510 made a couple modifications, but this is almost exactly what was given to us by the Attorney's Office.
511
512 Chris Johnston: And theirs was a Conditional?
513
514 Cy Stober: I think it was 11, 12, and 13.
515
516 Chris Johnston: Okay, interesting.
517
518 Charity Kirk: And then you took it out?
519
520 Cy Stober: Yeah, after discussion with them.
521
522 Charity Kirk: So the lawyers approved it both ways.
523
524 Cy Stober: That's correct, that wouldn't be inaccurate.
525
526 Chris Johnston: You took it out of 12, 13, and then placed it in the Conditional Zoning and that was the
527 discussion?
528
529 Cy Stober: Correct.
530
531 Lamar Proctor: And you mentioned the Eno District, I will just say an anecdotal example is when I was at
532 the Durham DA's office there was one of these stores in West Durham approaching on 70, approaching the
533 Eno, and there was a homicide in the parking lot amongst young people, teenagers, so the character and
534 quality of these places is definitely suspect.
535
536 Charity Kirk: If the use is much harder to come by, even in 12 and 13, is there the potential of character
537 and quality to go up? I mean, that's one of the things is like is—
24
DRAFT
538
539 Beth Bronson: You're putting it in an industrial district though. With all respect, I do understand what
540 you're saying, but you're putting it in industrial district where, again, there are commercial and retail sale, but
541 there's also an impetus for larger footprint spaces. So in industrial you could have a hundred thousand square
542 foot building and then you have a 12,000 square foot hemp and tobacco retail, and so then, again, you're
543 creating this one spot that is off the beaten path for people who would like to go and buy these products
544 without a lot of other public around, and if you're talking about trying to deter that type of behavior, you're
545 basically just isolating that to one area of town which, again, could be problematic if you think about where the
546 industrial zoning is and what residential areas might be near it. That is a consideration, I would think.
547
548 Lamar Proctor: To me the only question is, do you want to allow some due process where someone could
549 if they convince Board of County Commissioners that this was a good thing for the county and was consistent
550 with Comprehensive Land Use Plans, Conditional Zoning or do you wanna just say, "hey, people are going to
551 do what they're going to do so let's shove it into 12 or 13 over there with the sexually-oriented businesses,
552 because it's clearly a vice-oriented business. Me, personally, I would approve it as written, that it should just
553 go under Conditional Zoning. I don't see how,just given the definition, that it is consistent with the
554 Comprehensive Land Use Plan, but maybe some future retailer could convince some future board as to how it
555 is. There is a process by which such a retailer could get approved if they really tried.
556
557 Cy Stober: That's correct.
558
559 Chris Johnston: Could I put a motion now, that is unpopular and then figure out where we stand from
560 there?
561
562 Adam Beeman: Good.
563
564 MOTION BY Chris Johnston to submit the proposed amendment with the change where Tobacco and Hemp
565 Retail is in no Conditional Districts. Seconded by Charity Kirk.
566
567 Chris Johnston: Take it out of the Conditional Zoning District, the NRCD, where I believe it was placed-
568
569 Charity Kirk: Well, so what's the alternative?
570
571 Chris Johnston: So, the alternative is to have it blank across the board.
572
573 Adam Beeman: You can't do it anywhere.
574
575 Chris Johnston: You simply cannot do that in Orange County that we take it out of the Conditional Zoning
576 because we feel that given the language from the Health Board and from the County Commissioners that to ut
577 it in there would be to waste the applicant's time.
578
579 Charity Kirk: Sure, I'll second that.
580
581 Delores Bailey: So, doesn't that further make Beth's point about if you tell them they can't have it they'll
582 put it someplace else and it'll just–
583
584 Chris Johnston: I think that argument is if you tell them they can't, they put it somewhere else is true of any
585 law, right? Like if you make murder illegal they're going to go murder somewhere else or something like that.
586
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DRAFT
587 Charity Kirk: Lamar's point is if you limited these, and Beth, too, to just 12 it's going to be even worse.
588
589 Delores Bailey: But to put it no place?
590
591 Charity Kirk: Well, then it has to go in stores that are selling 50 percent or more of something else.
592
593 Liz Kalies: I was going to say, do we have the authority to say we can't have... I mean, what if I said 1
594 don't like massage businesses, can we take them off the list?
595
596 Cy Stober: Um, you could petition the Board to do that.
597
598 Liz Kalies: We actually have that authority?
599
600 Cy Stober: Well, to make a recommendation on behalf of the Board.
601
602 Chris Johnston: I guess my take is just if everyone agrees that there's reason that the Board would say no
603 to these things due to health concerns or whatever the case may be, what are we doing?
604
605 Statler Gilfillen: You're saying that this would be basically a non-allowed use in the county.
606
607 Chris Johnston: Yes, that is correct.
608
609 Statler Gilfillen: Why don't we just state it. "This is a non-allowed use?"
610
611 Lamar Proctor: Well, that's what he's saying.
612
613 Chris Johnston: I don't that I even agree with that, but what I'm hearing from everybody and everything
614 here is that the vibe is that we are trying to limit the exposure in the county. And so if that's the idea, anywhere
615 in the county is in the county, and so to have it open and not mean it is worse than to have it or not have it.
616
617 Statler Gilfillen: So, may I ask this question? If I go to the state liquor stores, how do the zoning of that
618 compare to what we're talking about here? I figure that's pretty high on the list of control areas, maybe I'm
619 wrong.
620
621 Beth Bronson: But ot's regulated by the state, this is on a county level would be my only—
622
623 Statler Gilfillen: They have the right just to stick it wherever they want it in the county?
624
625 Cy Stober: No.
626
627 Lamar Proctor: I looked and I didn't see it. I assumed it fell under just retail.
628
629 Cy Stober: You're right.
630
631 Marilyn Carter: As we're considering the motion, I do have a question and that is do we have any public
632 comment on this issue?
633
634 Cy Stober: We have not.
635
26
DRAFT
636 Adam Beeman: Go ahead, you have a question?
637
638 Delores Bailey: I believe that people should be able to sell and run a business they way they need to. 1
639 thought it was restrictive at first. I think this is really restrictive. I'm not of the opinion that we should not allow
640 it, so I just want that stated clearly.
641
642 Adam Beeman: Are you of the opinion to leave it as the amendment is written whereas just as Conditional
643 District?
644
645 Delores Bailey: Yes.
646
647 Adam Beeman: So, you don't necessarily agree stuffing it into an 11, 12, 13?
648
649 Delores Bailey: Not necessarily.
650
651 Adam Beeman: Okay.
652
653 Chris Johnston: And I want to say, I've got my motion out, it's got a second, I think we're at the point where
654 we throw down just to,just to see what to do.
655
656 Adam Beeman: You guys are all clear on what he's proposing?
657
658 Steve Kaufman: He's proposing that we're not going to have any stores like that in Orange County.
659
660 IN FAVOR: Marilyn Carter, Lamar Proctor, Charity Kirk.
661 OPPOSED:Adam Beeman, Delores Bailey, Beth Bronson, Statler Gilfillen, Chris Johnston, Steve Kaufmann, Liz
662 Kalies, Whitney Watson.
663 MOTION NOT PASSED 3 TO 8.
664
665 MOTION BY Marilyn Carter to pass the proposed change as written. Seconded by Delores Bailey.
666
667 Chris Johnston: In the Conditional Zoning District?
668
669 Marilyn Carter: Yes.
670
671 IN FAVOR:Adam Beeman, Delores Bailey, Marilyn Carter, Statler Gilfillen, Steve Kaufmann, Liz Kalies, Lamar
672 Proctor, Whitney Watson.
673 OPPOSED: Chris Johnston, Charity Kirk, Beth Bronson.
674 MOTION PASSED 8 TO 3.
675
676 Cy Stober: This will be presented to the Commissioner's at the June 4th public hearing.
677
678 MOTION BY Beth Bronson that the Proposed Unified Development Ordinance Text Amendment has a
679 Statement of Approval and Consistency per Attachment 1 that the meets all of the requirements of LIDO
680 Section 2.8.
681 Seconded by Lamar Proctor.
682
683 MOTION PASSED UNANIMOUSLY.
684
27
DRAFT
685 Statler Gilfillen: I'd like to make a comment and an observation. I believe that this has been one of the
686 more difficult issues for this Board to deal with. I think my stating that into the record may be helpful.
687
688 Lamar Proctor: It's already passed, but I don't know how other jurisdictions... whether shoving it in 12 and
689 13 has been more effective than making it... I mean, it's kind of a new thing too, so.
28
STATEMENT OF APPROVAL AND CONSISTENCY OF
A PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT WITH
ADOPTED ORANGE COUNTY PLANS
Orange County has initiated an amendment to the Unified Development Ordinance (UDO) to
add requirements for"Tobacco and Hemp Retail"use.
The Planning Board hereby recommends approval of the proposed text amendment and issues
this Statement of Consistency pursuant to NCGS § 160D-604 (d) Planning board review and
comments—Plan consistency. The Planning Board finds:
1. The requirements of UDO Section 2.8 Zoning Atlas and Unified Development
Ordinance Amendments, including review by the Development Advisory Committee
(DAC), as required in UDO Section 1.9, have been met;
2. The amendment is consistent with the adopted 2030 Orange County Comprehensive Plan,
as prescribed by UDO Section 1.1.5 Statement of Intent—Amendments and Section 1.1.7
Conformance with Adopted Plans;
3. The amendment supports the following principles and goals in the plan:
a. Planning Principle 8: Future growth and development should occur in a manner
that preserves and enhances the existing character of the County, its townships,
and rural crossroads communities.
b. Land Use Element Goal 3: A variety of land uses that are coordinated within a
program and pattern that limits sprawl, preserves community and rural character,
minimizes land use conflicts, supported by an efficient and balanced
transportation system.
c. Land Use Element Goal 4: Land development regulations, guidelines,
techniques and/or incentives that promote the integrated achievement of all
Comprehensive Plan goals.
d. Parks and Recreation Goal 4: Healthy lifestyles, quality of life and community
building through the provision of a variety of affordable recreational facilities and
choice of leisure activities, while responding to the changing needs and interests
of County residents.
4. The amendment is consistent with this principle and these goals because implementation
will result in a healthier populace in Orange County.
5. The amendment is reasonable and in the public interest because it allows for the use of
Tobacco and Hemp Retail establishments while minimizing their exposure to minors and
avoids their concentration in any one area of the county through the application of
29
suitable and reasonable development standards.
The Planning Board hereby adopts this Statement of Approval and Consistency and the
findings expressed herein.
(kl-oa� sI 1j -zj
Adam Beeman, Chair Date