ORDINANCE NO. 2024-02
AN INTERIM URGENCY ORDINANCE OF THE CITY OF HESPERIA, CALIFORNIA, ENACTED PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 65858 ESTABLISHING A 45-DAY MORATORIUM ON THE ESTABLISHMENT OR EXPANSION OF SINGLE PRICE OVERSTOCK/DISCOUNT STORES WITHIN CITY LIMITS DURING THE PENDENCY OF THE CITY’S REVIEW AND ADOPTION OF PERMANENT ZONING REGULATIONS FOR SUCH USES WHEREAS, the City of Hesperia has the authority and responsibility to protect the public health, safety, and welfare of the City, and is responsible for adopting and implementing land use regulations within its boundaries; and WHEREAS, a single price overstock/discount store (or stores as appropriate) (SPODS) is generally defined as a retail store less than 15,000 square feet that sells individual items generally obtained through outlet, close-out, discontinued, liquidation, or overstock, primarily at a single discount price or in the low and very low price ranges (e.g., $10.00, or less); and SPODS dedicate less than fifteen percent (15%) of shelf space to fresh or frozen foods and produce and sells at retail an assortment of physical goods, products, or merchandise directly to the consumer, including food or beverage for off-premises consumption, personal grooming and health products, household goods, and other consumer products; and WHEREAS, the Hesperia Municipal Code does not specifically identify SPODS as permitted by right or as a conditional use, so no specific regulations to curb threats to public health, safety, or welfare exist; and WHEREAS, as developable land becomes scarcer in the City, there is concern that the proliferation of SPODS without further regulation can have adverse impacts on the City: SPODS have profound impact on the health and quality of life of the surrounding neighborhoods and proliferate in low-income neighborhoods; SPODS typically have lower quality items that cost much more per ounce over time and contribute to local residents’ fear of safety by being a source of trash, loitering, or graffiti; and theft in and around SPODS due to their lack of security can damage further health and safety by discouraging residents from engaging in their communities; and WHEREAS, SPODS tend to operate in minimally developed spaces, discourage the upgrading of the existing area and its future economic vibrancy, and are inconsistent with the goal of upgrading the commercial areas; and WHEREAS, the City’s permissive policy towards SPODS could result in an overproliferation or oversaturation of said uses within the City; and WHEREAS, absent clear regulation, the overproliferation and oversaturation of SPODS in the City pose a threat to the public peace, health, and safety, and, unless the City takes action to regulate the impacts described above, such developments would constitute a current and immediate threat to the public health, safety, and welfare in that such developments will start an irrevocable downward shift in the economic and aesthetic value of the area and thus act as a bar to the goals of the City; and WHEREAS, the City intends to study the issues associated with SPODS to determine which locations are most appropriate to mitigate any potential adverse impacts on the City, including reviewing land use definitions for SPODS to determine if revisions are needed, evaluating all land use districts where SPODS are permitted for suitability, and studying development standards and best practices from other jurisdictions to determine if they would be appropriate City-wide; and WHEREAS, Government Code Sections 36934, 36937 and 65858 expressly authorize the City Council to adopt an urgency ordinance for the immediate preservation of the public peace, health, or safety and to prohibit a use that is in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission, or the planning department is considering or studying or intends to study within a reasonable time; and WHEREAS, after undertaking this study the City intends to enact regulations specific to SPODS. The City intends to undertake the required study within a reasonable time. In the interim, the City Council finds it necessary to establish a moratorium on the development of new SPODS or the expansion of existing SPODS in order to prevent a conflict with the contemplated new policies or regulations; and WHEREAS, continued approval of entitlements, building permits, or other approvals for new or expanded SPODS poses a current and immediate threat to the public health, safety, or general welfare. There is therefore an urgent necessity for the City to establish a moratorium on the establishment or expansion of SPODS to take effect immediately; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HESPERIA DOES HEREBY ORDAIN AS FOLLOWS.
SECTION 1. FINDINGS
The City Council finds the facts set forth in the recitals in this Urgency Ordinance are true and correct, and are hereby incorporated by reference. Additionally, based on the foregoing, both verbal and written testimony at the public hearing, including the staff report, exhibits, and any materials provided by members of the public, the City Council finds as follows:
This Ordinance is being adopted in order to allow the City time to thoroughly study and develop the City’s laws, rules, procedures, and fees related to the operation and establishment of SPODS, to adequately and appropriately balance the rights of existing operators and future applicants who wish to establish or expand SPODS in the City, and to adequately and appropriately preserve the health, safety, and welfare of the community in the City of Hesperia.
For the purposes of this Ordinance, SPODS are generally defined as retail stores less than 15,000 square feet that sell individual items generally obtained through outlet, close-out, discontinued, liquidation, or overstock, primarily at a single discount price or in the low and very low price ranges (e.g., $10.00, or less). SPODS dedicate less than fifteen percent (15%) of shelf space to fresh or frozen foods and produce and sells at retail an assortment of physical goods, products or merchandise directly to the consumer, including food or beverage for off-premises consumption, personal grooming and health products, household goods and other consumer products.
The City finds that in the absence of a regulatory framework to govern SPODS, the adverse impacts frequently associated with SPODS likely will occur, resulting in unregulated and significant negative impacts upon the public health, safety, and welfare of the community.
The City finds that the adverse impacts from SPODS include the following:
(1) The proliferation of SPODS throughout the City without due consideration presents an immediate threat to public health, safety, or welfare because they have profound impact on the health and quality of life of surrounding neighborhoods and proliferate in low-income neighborhoods. They typically have lower quality items that cost much more per ounce over time and contribute to local residents’ fear of safety by being a source of trash, loitering, or graffiti, and theft in and around SPODS due to their lack of security can damage further health by discouraging residents from engaging in their communities; and (2) SPODS tend to operate in minimally developed spaces, discourage the upgrading of the existing area and its future economic vibrancy, and are inconsistent with the goal of upgrading the commercial areas; and (3) The overproliferation and oversaturation of SPODS in the City poses a threat to the public peace, health, and safety, and, unless the City takes action to regulate, the impacts described above, such developments would constitute a current and immediate threat to the public health, safety and welfare in that such developments will start an irrevocable downward shift in the economic and aesthetic value of the area and thus act as a bar to the goals of the City; and The City also finds that SPODS could have a negative economic impact for the City as follows:
(1) The use provides little economic benefit to the City or City residents, as there are minimal sales tax revenues associated with the use and typical wages paid would not increase the City’s overall median income; and (2) The continued establishment of single price overstock/discount stores will result in the loss of desirable commercial sites throughout the City and the loss of potential revenues; and.
The City needs time to draft a proposed text amendment to the Zoning Code to preserve the health, safety, and welfare of the community in the City of Hesperia with respect to the operation of SPODS.
SECTION 2. AUTHORITY AND EFFECT
The State Planning and Zoning Law (Cal. Gov’t Code Sections 65000, et seq.) broadly empowers the City to plan for and regulate the use of land in order to provide for orderly development, the public health, safety, and welfare, and a balancing of property rights and the desires of the community and how its citizens envision their city.
MORATORIUM
A. During the Effective Period of this Ordinance as specified below, no permit shall be issued for any development of any single price/overstock discount store, nor may a permit be issued for the expansion of an single price/overstock discount store, within the City. The foregoing shall explicitly prohibit the issuance of any zoning, land use, discretionary permit, building permit, environmental approval, business license, or any other entitlement involving businesses defined as a single price/overstock discount store herein, during the Effective Period.
B. Notwithstanding the foregoing, any existing SPODS shall be allowed to obtain their annual City of Hesperia business license. Additionally, permits may be issued for minor construction, rehabilitation and landscaping or other purposes not involving an expansion of building area. Any SPODS under construction with a valid building permit or any SPODS approved by the Planning Commission on the effective date of this Urgency Ordinance shall be exempt from this Urgency Ordinance.
STUDY AND DEVELOPMENT
During the period of this Ordinance, the City shall study and develop as necessary City laws, rules, procedures, and fees related to SPODS, to enable the City to adequately and appropriately preserve the health, safety, and welfare of the community in the City of Hesperia. Pursuant to Government Code Section 65858 the Planning Manager will issue a report for the legislative body on what has been accomplished during the moratorium before it expires or is extended.
URGENCY MEASURE
It is hereby declared that this Ordinance is necessary as an urgency measure for the preservation of the public health, safety, and welfare. The City Council finds that current zoning regulations and land use plans do not adequately regulate the establishment and operation of SPODS and therefore do not adequately protect the peace, health, safety, and general welfare of the residents of the City or in communities around the City. The City Council finds the urgency measure is necessary in order to ensure adequate regulation of the operation of SPODS. The facts constituting the urgency are:
The City of Hesperia does not currently have clear standards in the Hesperia Municipal Code related specifically to the establishment and expansion of SPODS within the City.
The negative impacts frequently associated with operation of SPODS will likely increase as SPODS continue to proliferate throughout the City, resulting in an unregulated and significant negative impact upon public health, safety, and welfare of the community.
To permit the proliferation of SPODS to continue within the City without being subject to specific regulations that are consistent with the General Plan, and that take into account the impacts that such establishments have, constitutes a threat to the public’s health, safety, and welfare. SPODS typically have lower quality items that cost much more per ounce over time and contribute to local residents’ fear of safety by being a source of trash, loitering, or graffiti, and theft in and around them due to their lack of security which can damage further health by discouraging residents from engaging in their communities. In addition, they tend to operate in minimally developed spaces, discourage the upgrading of the existing area and its future economic vibrancy, and are inconsistent with the goal of upgrading the commercial areas.
SPODS are likely to seek to be located in the City based on the lack of explicit regulations, which will further exacerbate the impacts of such businesses.
Absent the adoption of this Interim Urgency Ordinance, the operation of SPODS in the City would likely result in the negative and harmful secondary effects, as identified above, including, but not limited to, increased public health and safety concerns, and other impacts identified herein.
As a result of the negative and harmful secondary effects associated with improperly regulated or unregulated operation of SPODS, the current and immediate threat such effects pose to the public health, safety, and welfare, it is necessary to adopt a temporary, forty-five (45) day moratorium on the establishment of new, or the expansion of existing SPODS in the City.
A moratorium is immediately required to preserve the public health, safety, and welfare and should be adopted immediately as an urgency ordinance, to make certain that the establishment and expansion of SPODS are prohibited for the period of this Ordinance. Imposition of a moratorium will allow the City sufficient time to conclude the preparation of a comprehensive ordinance for the regulation of such activities.
SEVERABILITY
The City Council hereby declares, if any provision, section, subsection, paragraph, sentence, phrase or word of this Ordinance is rendered or declared invalid or unconstitutional by any final action in a court of competent jurisdiction or by reason of any preemptive legislation, then the City Council would have independently adopted the remaining provisions, sections, subsections, paragraphs, sentences, phrases or words of this Ordinance and as such they shall remain in full force and effect.
CEQA COMPLIANCE
Pursuant to the California Environmental Quality Act Guidelines ("CEQA," California Code of Regulations Title 14, §§ 15000 et seq.), this Interim Urgency Ordinance is exempt from CEQA based on the following: (i) this Ordinance is not a project within the meaning of CEQA Section 15378 because it has no potential for resulting in physical change to the environment, either directly or indirectly and (ii) this Ordinance is also exempt pursuant to CEQA Section 15061(b)(3) since the proposed ordinance involves an Interim Urgency Ordinance establishing a 45-day temporary moratorium on the establishment of SPODS and thus there is no possibility that the proposed ordinance may have a significant effect on the environment.
EFFECTIVENESS OF ORDINANCE.
This Ordinance shall take effect immediately upon its adoption by a 4/5 vote, pursuant to the authority conferred upon the City Council by Government Code Sections 36934, 36937, and 65858. This Ordinance shall be effective during the Effective Period which shall be from its adoption and shall be of no further force and effect forty-five (45) days following the date of its adoption unless extended in accordance with the provisions set forth in Government Code Section 65858(b).
PUBLICATION
The City Clerk shall certify as to the passage and adoption of this Interim Urgency Ordinance and shall cause the same to be published in a manner prescribed by law.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Hesperia, California, at a regular meeting held on this 6th day of February, 2024. ____________________________
Larry Bird, Mayor
ATTEST:
_____________________________
Erin Baum, Assistant City Clerk