JIVA MCE, LLC APPEAL OF CITY OF MERCED PLANNING COMMISSION APPROVAL OF COMMERCIAL CANNABIS BUSINESS PERMIT #22-02R
SUPPLEMENT #3
REQUEST FOR CONTINUANCE AND ADDITIONAL INFORMATION
Jiva MCE, LLC (“Jiva”) respectfully submits this third supplement to its November 14, 2022 appeal of the decision of the Merced City Planning Commission (the “Commission”) in approving Commercial Cannabis Business Permit #22-02R (the “Appeal”). As demonstrated in its initial appeal and supplements, Jiva should have been awarded a license in the 2022 licensing process because, while it was awarded average score of 92.67, Jiva should have received an additional three points pursuant to Criteria 5d and 5e, which would have situated it as the clear, highest scoring in the City’s 2022 Commercial Cannabis Business (Retail) application process.
Jiva submits this third supplemental brief in support of its appeal to (1) apprise the Council of its intent to move for a continuance on February 6, 2023, and (2) to demonstrate why, regardless of the outcome of the other appeal set on February 6, 2023, Jiva is the most qualified and best applicant among the 2022 candidates.
Jiva’s Motion for Continuance
Since submitting Supplement #1 and Supplement #2 on January 24, 2023, Jiva has retained co-counsel, Nicole Phillis of Davis Wright Tremaine LLP, to provide represent Jiva in the appeal and potential additional mandamus litigation. Ms. Phillis and Jiva subsequently requested a continuance of the February 6, 2023 hearing for legitimate medical reasons. Unfortunately, Culture of Merced, a real party in interest as the awardee of CCBP #22-02R, has thus far declined to stipulate to Jiva’s reasonable request for continuance. Thus, Jiva plans to appear at the February 6, 2023 hearing to move orally for a continuance.
To afford Jiva the opportunity to make that motion, Jiva respectfully requests that the Council consider agendizing its Appeal before the related appeal of CCBP #22-02R by Mr. Edwin A. Kainth, on behalf of himself and other Motel Drive property owners (the “Motel Drive Appeal”). Jiva thus respectfully requests to agendize Jiva’s motion for a continuance in this manner to afford Jiva the opportunity to move for a continuance without confusing the issues related to the Motel Drive Appeal.
Good cause exists to grant such a continuance because Ms. Phillis, who was only recently retained in this matter, fell ill with COVID in mid-December and has been experiencing long COVID symptoms that make preparation and travel for the February 6, 2023 challenging. In addition, good cause exists to grant the continuance because it will allow the Council to consider the merits of the Motel Drive Appeal and Jiva’s appeal in independent hearings and will afford Jiva’s newly retained counsel a more meaningful opportunity to discuss potential pre-appeal resolutions with the City.
2 Merits of Jiva’s Application
As this Council knows, the City’s appellate procedures provide that this City Council hears appeals of commercial cannabis licensing decisions de novo. See Merced Municipal Code §
20.44.170(L)(8)(c)(vi)(f). Because this body is thus body thus reviews Jiva’s application independently and on the merits on this de novo standard, Jiva respectfully draws the Council’s attention to the following considerations, which further distinguish Jiva as the best applicant for a 2022 retail permit award:
Better Location. CCBP #22-02R would permit the operation of an approximately 3,250 square foot medicinal and adult-use cannabis retail dispensary, including delivery, located in an existing building within the Thoroughfare Commercial (C-T) zone at 1111 Motel Drive. Mr. Kainth and other Motel Drive property owners joining in the appeal believe that CCBP #22-02R would negatively impact the businesses in the surrounding areas and exacerbate traffic issues within the area. The appellants have pointed to poor site circulation and lack of cohesion with nearby uses as additional grounds for the appeal, requesting that Council the overturn the Commission's approval of the CCBP #22-02R.
In contrast, the proposed Jiva location at 1121 W. Olive Avenue in Merced is an ideal location for a cannabis retail facility. The proposed use is consistent with existing and approved uses for the building and commercial center in which the project is located. The proposed location’s proximity to other regional retail tenants such as Target, Lowes, and Merced Mall make Jiva the only applicant capable of maximizing net-new tax revenue from customers visiting Merced from out of the area versus simply borrowing sales volume from other existing cannabis retailers serving existing customers. Conversely, those customers who visit Jiva are more apt to cross-shop and bolster other traditional retailer’s sales volumes due to the convenience and variety of nearby regional shopping options.
The project will meet CalGreen standards for sustainable retail development and employs adaptive reuse of an existing building and site with minimum waste and demolition. Jiva has committed to making voluntary upgrades to parking lot lighting, drought tolerant landscaping, and green building features.
Subject Matter Expertise and Industry Leadership. We must reiterate that Jiva and its principals, including Dr. John Oram, whose Affidavit is submitted as Supplement #2 to the Appeal, are best-in-class operators with a long track record of cannabis industry experience. Dr. Oram founded CCSAC, Inc. a verified Mutual Benefit Non-Profit Corporation in continuous operation since 2011. He has dedicated the last 20 years to providing specialized care in cardiology in Merced County and has long contributed to research in the field of medical cannabis. Owner and compliance director Ms. See Lee was born in Merced and has spent her career leading healthy youth, community, and economic development initiatives in Merced County. Led by Mr. Raj Pottabathni, the Jiva organization, inclusive of Jiva MCE and affiliates, has been awarded more than 20 retail commercial cannabis business licenses in the state of California with a focus in the Central Valley and Bay Area. Together, the Jiva team is uniquely qualified to operate a successful, 3 community-focused cannabis business in Merced and stands ready to expand its important work to the benefit of the City and Merced residents.
Once again, we thank Council and staff for their time and consideration of Jiva’s request for a continuance as well as the Appeal as a whole.
DATED: February 1, 2023 D AVIS WRIGHT TREMAINE LLP
NICOLE S. PHILLIS
By: /s/ Nicole S. Phillis
Nicole S. Phillis
Attorneys for Appellant JIVA MCE, LLC