23.42.140

A. The purpose of this Section 23.42.140 is to promote public health, safety, and welfare by prohibiting negative use restrictions that prohibit or restrict the use of real property as a grocery store or pharmacy. Except in particular circumstances, these restrictions interfere with public health, safety, and welfare, are contrary to clearly established public policy, and are an anti-competitive barrier to providing essential goods and services to the people of the City. B. For purposes of this Section 23.42.140 : "Drug store" means a business establishment (or portion thereof) in multipurpose retail sales use that includes a pharmacy. "Pharmacy" means a use in which prescription medications are securely stored and sold. "Retail center" means a multi-tenanted or multi-owner retail development with at least one shared common area and that is subject to common management or common control through one or more restrictive covenants or easements. C. Except as set forth in subsection 23.42.140.D, a private agreement that imposes a negative use restriction upon real property so as to prohibit or restrict the use of such real property for a grocery store or pharmacy, when such use would otherwise be permitted under this Title 23 , is against public policy, is prohibited, and shall be void and unenforceable. The prohibition applies regardless of whether the private agreement is incorporated in a contract, a deed restriction, a restrictive covenant, a lease or memorandum of lease, or any other recorded or unrecorded instrument. It shall be unlawful for any person to enter an agreement that is prohibited by this subsection 23.42.140.C or for any person who is the beneficiary of a negative use restriction imposed by such an agreement to allow such a restriction to remain or to refuse to release it. For purposes of this subsection 23.42.140.C, 1. Restricting the use of real property for a grocery store or pharmacy includes limiting the size of a grocery store or pharmacy; and 2. The prohibition in this subsection 23.42.140.C applies to negative use restrictions that prohibit or restrict the use of real property for a pharmacy alone and to negative use restrictions that prohibit or restrict the use of real property for a drug store. D. Subsection 23.42.140.C does not apply to: 1. An agreement imposing a negative use restriction that became effective prior to the effective date of this ordinance; 2. An agreement that imposes a negative use restriction to prohibit or restrict use of real property for a grocery store or pharmacy after an owner or operator of a grocery store or pharmacy discontinues operations of such a store on the property for the purpose of relocating the grocery store or pharmacy, if the parties provide documentation establishing that: a. When compared to the discontinued store, the relocated grocery store or pharmacy is similar in size or larger and similar in the scope of products sold; b. The relocated grocery store or pharmacy is located within one-half mile of the discontinued site; c. At the time of closure the owner or operator has a reasonably achievable written plan to ensure that commencement of operations of the relocated grocery store or pharmacy at the new site occurs within one year following the discontinued store's closure; and d. The negative use restriction imposed on the prior site does not have a term in excess of three years from the date of closure; and 3. An agreement that imposes a negative use restriction to prohibit or restrict use of real property for a grocery store or pharmacy in order to limit competition or conflicting uses within the confines of a retail center by allowing only a limited number of grocery stores or pharmacies within said retail center; provided, however, that it shall be unlawful for any owner or operator who discontinues grocery store or pharmacy use at a site within a retail center for a period exceeding one year to seek to enforce a negative use restriction prohibiting or restricting grocery store or pharmacy uses within the retail center. E. Upon written request of an owner or operator and the requester's presentation of evidence establishing extenuating circumstances that demonstrate good cause for the extension, the Director may, by written determination, extend the distance limit in subsection 23.42.140.D.2.b to no more than one mile; the time requirement in subsection 23.42.140.D.2.c; the term limit in subsection 23.42.140.D.2.d; or the time period in subsection 23.42.140.D.3, as any of them would apply to the requester. Factors to be considered in evaluating good cause include: a. Maintaining or increasing food and medicine access in the surrounding area, including the area around the discontinued site; b. Needs related to financing and construction for the new location; and c. Promoting private investment in the surrounding area. F. Enforcement 1. Any private agreement that imposes a negative use restriction upon real property in violation of subsection 23.42.140.C is null and void and of no lawful force and effect. 2. The City is authorized to enforce this Section 23.42.140 using the procedures of Chapter 23.90 . 3. Notwithstanding any contrary provision in this Title 23 , and regardless of whether the City uses the procedures of Chapter 23.90 , the City may enforce this Section 23.42.140 through a cause of action in a court of competent jurisdiction including declaratory relief, injunctive relief, or other legal or equitable remedy as appropriate to carry out the purpose and intent of this Section 23.42.140 . (Ord. 127329 , § 2, 2025.)