The Brookfield Village Board on July 24 is expected to approve amending its zoning code in order to limit the number of standalone smoke/vape shops in commercial districts.
The action follows in the wake of three such shops opening since 2021, including two just a couple of blocks from each other on Ogden Avenue. The code amendment recommended by the Brookfield Planning and Zoning Commission last month would make it harder to open a smoke/vape shop in Brookfield than it would be to open a liquor store.
In a 5-0 vote, the Planning and Zoning Commission recommended that smoke/vape shops be located at least 3,000 feet from each other and 1,000 feet away from any school or daycare facility. It also limits such shops to the 31st Street, Eight Corners and Ogden Avenue business districts and the 47th Street industrial district.
To give a sense of how restrictive that is, Village Planner Kate Portillo told elected officials at a discussion of the code amendment at the village board’s July 10 committee of the whole meeting that Broadway Avenue is about 1,700 feet in length, but it is within the Eight Corners Business district, where two schools and a daycare center are located.
The 31st Street corridor is about 4,000 feet, while both Ogden Avenue and 47th Street are about 5,300 feet in length.
Smoke/vape shops would no longer be allowed in any of the Station Area zoning districts, such as the Grand Boulevard/Prairie Avenue district, which has housed one smoke/vape shop for years and has been home to others in the past.
The existing code does not call out smoke/vapes shop specifically, so they are classified as “non-durable goods,” a use allowed by right along 31st Street, Ogden Avenue, Eight Corners and in the village’s three Station Area business districts.
Existing smoke/vape shops would be able to operate as non-conforming uses. However, if they close or cease operations for at least six months, they would be subject to the amended code.
Trustee Edward Cote wondered if the new rules could be challenged as too restrictive, given that liquor stores, which also sell cigarettes and vape products, can be as close as 100 feet away from schools.
Village Attorney Adam Durkin said the proposed restrictions would not be problematic from a legal standpoint.
“I don’t see anything prohibiting this kind of [distance] restriction,” said Durkin. “Just because one store sells products as an ancillary business doesn’t mean another store who sells it as a primary business has some kind of right.”
While new smoke/vape shops cannot be located withing 1,000 feet of a daycare or school, the code leaves it up to a daycare or school if the owner wants to open in a location within 1,000 feet of such an existing shop.
However, if the smoke/vape shop closes and the school/daycare remains, any future shop would be subject to the restrictions outlined in the code.
Other than Cote’s question regarding a potential legal challenge, elected officials, including Cote, did not appear to have any objections to the proposed change in the code to restrict smoke/vape shops.
