250L
JRG
ATTORNEYS AT LAW
318 Cayuga Street June 4, 2024
Salinas, CA 93901
831.754.2444 Members of the Planning Commission
City of Salinas
JRGattorneys.com Lincoln St.
Salinas, CA 93901
Re: Appeal of Denial of Commercial Cannabis Permit 2023-007
PARTNERS
Dear Planning Commission:
Aaron P. Johnson
Paul A. Rovella Our firm represents the applicant on the above referenced appeal of the City Managing Partner
Selection Committee's denial of its application to amend its Commercial Cannabis Jason S. Retterer Permit to change the location of its existing commercial retail operation. At the Robert E. Rosenthal Planning Commission's last hearing to consider and ultimately deny this applicant's Jeff R. Gilles Use Permit relating to a proposed parking reduction, there was some discussion Founding Partner regarding the Planning Commission's discretion to approve the Use Permit Stephan A. Barber notwithstanding a memo that the Acting Police Chief prepared that opines that the Peter D. Brazil proposed dispensary at this location would create a nuisance on the neighboring apartment complex that is located adjacent to the northwest corner of the property.
ATTORNEYS
Patrick S. M. Casey Under well-established California land use law, the Planning Commission's action on both the Use Permit and CCP is a quasi-judicial action. Quasi-judicial S. Craig Cox
Cat Mineo actions are those that involve application of preexisting laws or standards to a specific project. See, e.g., San Diego Bldg. Contractors Ass'n v City Council (1974) 13 Cal.3d Karin E. Richards 205, 211. They include use permits, variances, subdivisions, and locally adopted Jacob Yoneda approvals such as design and site plan approval. See, e.g. Fairfield v Superior Court (1975) 14 Cal.3d 768, 773; Neighbors in Support of Appropriate Land Use v County OF COUNSEL of Tuolumne (2007) 157 Cal..App.4th 997, 1005 They also include the CCP because David W. Balch the Planning Commission must apply the standards set forth in the City's code to the M. Allen Hopper specific facts relating to the dispensary project. Certain procedural and due process Natalie M. Lupo requirements apply to all quasi-judicial approvals.
Ren Nosky
One of those procedural and due process requirements, which apply to all Ronald A. Parravano quasi-judicial decisions, is that the city must issue written findings in support of its decision. These findings must enable interested parties to determine whether and on what basis they should seek review of the City's decision; findings also apprise a reviewing court of the basis for the City's action. The record must contain substantial evidence to support the findings, and the findings must in turn support the decision Johnson, Rovella, Retterer, Rosenthal & Gilles, LLP
SALINAS MONTEREY HOLLISTER PASO ROBLES WATSONVILLE
Members of the Planning Commission
and be sufficiently detailed to "bridge the analytical gap" between the raw evidence and the final decision. Topanga Ass'n for a Scenic Community v County of Los Angeles (1974) 11 Cal.3d 506, 515.
The term "substantial evidence" is defined by case law as evidence that is of ponderable legal significance, reasonable in nature, credible, and of solid value. See Stanislaus Audubon Soc'y, Inc. v County of Stanislaus (1995) 33 Cal.App.4th 144; Lucas Valley Homeowners Ass'n v County of Marin (1991) 233 Cal.App.3d 130, 142.
In the California Environmental Quality Act ("CEQA") context (see Public Resources Code 21080(e) and 21082.2 (c); 14 Cal. Code Regs 15064(f)(5) 15384), the following constitute substantial evidence:
• Facts;
• Reasonable assumptions predicated on facts; and
• Expert opinions supported by facts.
Under the same CEQA sections, the following do NOT constitute substantial evidence:
Argument;
Speculation;
• Unsubstantiated opinion or narrative;
• Clearly inaccurate or erroneous evidence;
Evidence that is not credible; and
• Evidence of social and economic impacts that do not contribute to, and are not caused by, physical impacts on the environment.
Accordingly, an agency's determination of whether information in the record constitutes "substantial evidence" to support a decision (whether approval of denial) boils down to a determination not only that the information is relevant and material, but also that it is sufficiently reliable to have solid evidentiary value. Regarding the reliability of the evidence to support a decision, Courts have held that expressions of subjective concerns and personal beliefs, or fears about impacts of a project, do not constitute substantial evidence. See, for example, Newtown Preservation Soc'y v County of El Dorado (2021) 65 Cal.App.5th 771, 789; Newberry Springs Water Ass'n y County of San Bernardino (1984) 150 Cal.App.3d 740; Perley v Board of Supervisors (1982) 137 CA3d 424. Courts have also held that speculation, argument, suppositions, and unfounded conclusions are likewise not substantial evidence. See, e.g., Jensen v City of Santa Rosa (2018) 23 Cal.App.5th 877, 897 and Aptos Council v County of Santa Cruz (2017) 10 Cal. App. 5th 266, 294.
Based on the definition of "substantial evidence" and California law that requires that all quasi- judicial decisions must be based on findings that are supported by "substantial evidence," the Planning Commission has the discretion and a legal obligation to consider the reliability and Johnson, Rovella, Retterer, Rosenthal & Gilles, LLP
SALINAS MONTEREY HOLLISTER PASO ROBLES KING CITY WATSONVILLE Members of the Planning Commission
credibility of the information that applicant, staff and the public has presented. This information includes not just the oral and written testimony of the public, but any staff conclusions relating to the application, including the Acting Police Chief's memo (the "Memo"). As noted above, even if the Acting Police Chief is an expert in the area of law enforcement, the Acting Police Chief's opinion must be credible, of solid value, and supported by facts to constitute substantial evidence to support a Planning Commission finding of denial.
As the applicant has explained in detail in its appeal of the Planning Commission's denial of its Use Permit application, the memo amounts to an unfounded conclusion that the application will create a nuisance on the nearby residential neighborhood. It referenced alleged facts and irrelevant issues and makes no attempt to correlate the same to the causing of a nuisance. Moreover, the Memo contradicts his own memo, drafted just two (2) days prior, which concluded there would be no nuisance.
Therefore, with careful consideration of the factual background and legal standards required and set forth hereinabove, we urge the Planning Commission to scrutinize the Memo carefully, make a finding that the Memo does not meet the substantial evidence standard to justify denial of the application, disregard the Memo and approve the application.
Respectfully submitted,
JasonS. Retterer
cc: Lisa Brinton
Chris Callihan
City of Salinas City Council
Johnson, Rovella, Retterer, Rosenthal & Gilles, LLP
SALINAS MONTEREY HOLLISTER PASO ROBLES KING CITY WATSONVILLE