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Public Hearing
City of San Bernardino
Request for Council Action
Date: August 20, 2025
To: Honorable Mayor and City Council Members
From: Gabriel Elliott, Director of Community Development & Housing; Eric Levitt, City Manager
Department: Community Development & Housing
Subject: Adopt Resolution Denying or Approving Appeal 24-06 of Planning Commission's Approval of Resolution 2024-034-
PC that Restored the Conditions of Approval for
Administrative Development Permit 22-020 (Ward 3)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2025-352 of the Mayor and City Council of the City of San Bernardino, California denying Appeal 24-06, thereby affirming the Planning Commission’s approval of Appeal 24-05, which re-instated the deleted conditions of approval 20 (twenty) through 26 (twenty-six) which were redacted through the Community Development and Housing Departments approval of Amendment to Conditions of Approval 23-01 originally drafted for Administrative Development Permit 22-020; for the property located at 379 E. Industrial Road on 0.83 acres (APN: 0141-581-03) within the Industrial Light (IL) zone, Ward 3 (Attachment 1).
OR
2. Adopt Resolution No. 2025-353 of the Mayor and City Council of the City of San Bernardino, California approving Appeal 24-06 of Appeal 24-05 thereby overturning the Planning Commission’s approval of Appeal 24-05, which re- instated the deleted conditions of approval 20 (twenty) through 26 (twenty-six) that were redacted within the Community Development and Housing Departments approval of Amendment to Conditions of Approval 23-01 for Administrative Development Permit 22-020; for the property located at 379 E. Industrial Road on
0.83 acres (APN: 0141-581-03) within the Industrial Light (IL) zone, Ward 3 (Attachment 3).
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Executive Summary
The City approved an amendment to an Administrative Development Permit regarding the installation of a 9,000-gallon liquid nitrogen tank for ADESA International Frozen Foods. The amendment removed specific conditions of approval that were originally approved and designed to mitigate the potential impacts of approving the placement of an outdoor 9,000-gallon nitrogen tank and accompanying parking and other associated impacts. An appeal was filed by the Waterman Business Center Association to the Planning Commission, which challenged the removal of these approved conditions. On November 12, 2024, the Planning Commission granted the appeal through the adoption of Resolution 2024-034-PC and restored the conditions on the project. ADESA International Frozen Foods is now appealing the Planning Commission's decision to the City Council. Granting ADESA’s appeal will remove the conditions of approval from the project whereas denying ADESA’s appeal will uphold the Planning Commission's decision to reimpose the conditions of approval.
This staff report outlines the recommended actions of the City Council, actions taken by the Planning Commission and Planning Staff, regarding the property known as 379 E. Industrial Road (Attachments 9 and 10). The action taken by the City Council could affirm or overturn Planning Commission’s approval of Resolution 2024-034 for Appeal 24-05 (Attachment 6).
Background
Appellant II
Carney Mehr Law (known as Appellant II), representing ADESA, doing business at 379 E. Industrial Way, in the Waterman Business Center, is appealing Planning Commission’s decision of November 12, 2024. At that meeting, the Planning Commission heard Appellant II’s claims and still approved Appeal 24-05, filed by the Waterman Business Center Association (WBCA, Appellant I) by adoption of PC Resolution 2024-034. The decision of the Planning Commission restored the seven (7) deleted conditions of approval for Administrative Development Permit (ADP) 22- 020.
Planning Commission’s November 12, 2024 Directive
After listening to presentation on both sides of the appeal, the Planning Commission directed staff to return Administrative Use Permit 22-020 for revocation based on information provided by Carney Mehr Law and WBCA. The Commission believed that ADESA International was in violation of the City’s parking code and the conditions of approval for ADP 22-020.
The basis of Carney Mehr Law’s appeal is that the appeal heard by the Planning Commission on November 12, 2024, was untimely. According to Carney Mehr Law (Appellant II), “a total of 412 days passed” between the final action and the submittal of the appeal and that “the appeal should not have been heard by the Planning Commission at all”. Appellant II also claims that a city does not serve to enforce private association regulations, and that any disagreements between tenant and 2 6
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management are considered private matters. The current Director of Community Development & Housing Department disagrees with this statement because the conditions included with ADP 22-020 were not only private association regulations.
Also, those conditions were necessary because ADESA International was and is the only business within the 12-building complex, to install a 9,000-gallon hydrogen tank outdoors. This is considered a special circumstance that requires special regulations.
Appellant II also claims that “allowing the appeal to go forward compromised the Permittee’s (ADESA’s) due process and vested property right in the Amended Permit”.
The Director’s position on this is that Appellant I’s due process was also abridged when the timely appeal was filed one day after the removal of the subject conditions from ADP 22-020 by staff and not processed. The City faces the same exposure to litigation from Appellant I as with Appellant II.
Appellant I (WBCA)
The Waterman Business Center Association (known as Appellant I) is the building owners’ association responsible for, among other duties, enforcing the Waterman Business Center’s CC&Rs and other Rules and Regulations for the 12-building Waterman Business Center. 379 E. Industrial Way is one of the 12 buildings within the Waterman Business Center and is owned by S&E Investments, a WBCA member leasing the building to ADESA. ADESA is a tenant of a member of the WBCA.
WBCA appealed the removal of conditions of approval for Administrative Development Permit 22-020, which was issued on July 22, 2022 to allow ADESA International to install a 9,000-gallon liquid nitrogen tank outdoors. The seven conditions identified below as well as the timing of the appeal are some of the bones of contention of Carney Mehr Law’s appeal. The seven conditions state as follows:
(20) Bobtail and semi-trucks will park, load, and unload only in the areas designated.
The Applicant will limit semi-trucks access/egress to and from the lot to between the hours of 9:00 pm and 6:00 am. No semi-trucks will park on site outside of these hours. (21) Applicant agrees to screen the Liquid Nitrogen Tank in accordance with the plans approved by WBCA and the metal screening material will be painted to match the main building field color of 379 E Industrial Building.
(22) Applicant agrees to install and maintain landscaping (including proper irrigation) to screen views from adjacent property in accordance with the plans to be approved by WBCA.
(23) Applicant agrees to properly and promptly dispose of all waste to minimize odors and pests.
(24) No utility lines will be mounted on the exterior of the building. 2 6
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(25) The storm drain trench (which is WBCA property) is to remain undisturbed before, during and after construction. The storm drain flow of the lot will be maintained and not altered.
(26) In addition to these conditions, WBCA is requiring proper notice (minimum 3 business days) and insurance before starting construction over, near, under, around the fire water main that runs through the proposed construction area.
Staff Actions in 2023
Most of the information pertaining to city staff’s actions in 2023 are detailed in the attached Planning Commission staff report (Attachment 5). However, for the benefit of the Mayor and City Council, staff provides the following synopsis.
At the direction of the department’s then director and City Planner, planning staff, on July 20, 2023, amended and redacted Conditions of Approval 20 through 26 (above) from the original Administrative Development Permit 22-020 with Amendment to Conditions 23-01(Attachment 12). Four days later, on July 24, 2023, the WBCA wrote a letter (Attachment 13), appealing the removal of the conditions. The letter was not processed subject to the requirements of the San Bernardino Municipal Code Section
19.52.090 – 19.52.120. Per Section 19.52.100, appeals shall be filed within 15 days of the decision rendered and accompanied by a filing fee specified in Chapter 19.32 (Applications and Fees).
The appeal filed by WBCA met the 15-day statutory filing period; however, staff did not engage with the appellant nor request payment and submittal of the appeal on an official appeal form.
It was not until September 4, 2024, more than a year and two months after the official appeal request letter was filed, that the Planning Department, under a new director, officially processed the appeal with the accompanying fee.
One of the reasons why the Appellant I (WBCA) was adamant about the appeal and the restoration of the conditions of approval for ADP 22-202, was that ADESA, between 2023 and 2024, was in clear violation of the terms of ADP 22-020. Several complaints were called in by building and business owners within the 12-building complex, and the Code Enforcement Division and Police Department were deployed to enforce parking violations by ADESA. WBCA also presented photographic evidence of these violations which indicate that trucks were parked in red parking zones and access to other tenants’ parking spaces was impeded by delivery trucks.
The Planning Commission heard all testimonies on November 12, 2024 and moved to approve the appeal by WBCA.
Public Hearing Noticing:
Notification of the public hearings for the project was completed as follows, in accordance with Section 19.52.020 (Hearing and Appeals – Application Processing) of the City of San Bernardino Development Code:
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March 4, 2025: Notices were mailed to the property owners and tenants within 1,000 feet of the exterior boundaries of the subject property, providing the nature of the request, location of the property, the date, time, and place of the Mayor and City Council meeting of March 19, 2025 for Appeal 24-06.
March 8, 2025: Legal advertisement was published in the San Bernardino Sun Newspaper.
Discussion
In February 2021 an application for a Zoning Verification Review for ADESA International was received by the City of San Bernardino Planning Division. Because the proposed land use was a permitted use per the City of San Bernardino Development Code Chapter 19.08 Section 19.08.080.01 (Industrial Zones list of Permitted, Development Permitted and Conditionally Permitted uses), the Planning Division issued the Zoning Verification Review determining that the Land Use was permitted within the Industrial Light zone, and a business license could be obtained through the Business Registration Department with the processing of applicable applications and payment of applicable fees.
In May 2022, an application for Administrative Development Permit 22-020 was submitted by ADESA International for the installation of an approximately 9,000-gallon nitrogen tank which would be utilized in conjunction with the packaging of their frozen foods for packaging and distribution. At the time of the submission of Administrative Development Permit 22-020, the Waterman Business Center Association (Appellant I) expressed some concerns to Planning Staff about the operating characteristics of tenant ADESA international. Specifically, Appellant I indicated that ADESA had performed unpermitted construction and were parking in unauthorized parking locations throughout the Industrial Center, including red zones, which was impeding vehicular access and parking for other businesses and their employees.
Besides the concerns about parking and circulation, the WBCA was also concerned that installing the nitrogen tank would result in: (a) modifications to existing storm drains; (b) elimination of required landscaping; and (c) that the tank would represent and eyesore to offices within the industrial park, which was not in conformance with their CC&Rs (Attachment 14)
After the Planning Division’s analysis of the project in its entirety and through working with ADESA and in an effort to work with the WBCA (Appellant I), Planning Division management at the time agreed to incorporate a set of conditions that were crafted by the Appellant I (WBCA) and included them within Administrative Development Permit 22-020. The understanding was that the addition of the Conditions of Approval within ADP 22-020 were agreed upon by all parties involved (Attachment 15). This agreement, confirmed by Appellant I’s President, ensured no objections from Appellant I (WBCA), ADESA, and all stakeholders. Appellant I also attested that 2 6
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without the addition of the Conditions of Approval the WBCA and stakeholders within the industrial center would have objected to the addition of the nitrogen tank. The seven conditions referenced earlier were added to ADP 22-020.
In March 2023, a representative from ADESA contacted the City Manager’s office, City Planner, and the Department Director about Administrative Development Permit 22- 020 and Conditions of Approval 20 through 26. They wanted to know the rationale behind imposing the conditions. The then City Planner and Department Director explained that the conditions were included to accommodate all parties and avoid any conflicts within the 12-building development.
Subsequent to the meeting in March, then Department Director and the City Planner directed the removal of Conditions 20 through 26, claiming they were operational concerns between WBCA and ADESA. Before this action was taken, the Director of Community Development and the City Planner resigned.
In May of 2023 ADESA’s legal team reached out to BB&K to see what position the City was taking on the removal of the said conditions. At that time the City Planner and Department Director positions were vacant.
In July 2023, the conditions of approval 20 through 26 were redacted from the original ADP with Amendment to Conditions 23-01. Staff created the report, signed it, and sent it to both ADESA International as they was the original applicant and occupants of the building and Appellant I (WBCA).
On July 20, 2023 Appellant I (WBCA) sent a letter to Planning staff appealing the removal of Conditions of Approval 20 through 26. It was around this time that an interim Department Director was appointed. The Director determined that if Appellant I wanted to appeal the removal of said conditions, the department would honor it.
At the duly noticed public hearing of the Planning Commission on October 8, 2024, Appeal 24-05 was continued to the Planning Commission meeting of November 12, 2024 because ADESA was unable to attend the hearing, and the City’s legal counsel advised the Planning Commission not to hear any testimony from WBCA, who was present, because testimony could negatively impact ADESA (who was not present).
The hearing was continued to the Planning Commission meeting of November 12, 2024.
At the duly noticed November 12, 2024 WBCA and two (2) community business owners, Family Memorial and Crematory and Social Vocational Services, spoke and presented evidence of how ADESA’s business practices negatively impacts other tenants of the development. After all public input, including a ADESA’s rebuttal, (Attachment 16), but the Planning Commission deliberated and approved Appeal 24- 05 with the adoption of Resolution 2024-034.
Appellant II’s grounds for appeal (Attachment 7), and Appellant I’s responses 2 6
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(Attachment 8) are included as exhibits to this report. 2021-2025 Strategic Targets and Goals
N/A
Fiscal Impact
There is no fiscal impact associated with Appeal 24-06.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California:
1. Adopt Resolution No. 2025-352 of the Mayor and City Council of the City of San Bernardino, California denying Appeal 24-06, thereby affirming the Planning Commission’s approval of Appeal 24-05, which re-instated the deleted conditions of approval 20 (twenty) through 26 (twenty-six) which were redacted through the Community Development and Housing Departments approval of Amendment to Conditions of Approval 23-01 originally drafted for Administrative Development Permit 22-020; for the property located at 379 E. Industrial Road on 0.83 acres (APN: 0141-581-03) within the Industrial Light (IL) zone, Ward 3 (Attachment 1).
OR
2. Adopt Resolution No. 2025-353 of the Mayor and City Council of the City of San Bernardino, California approving Appeal 24-06 of Appeal 24-05 thereby overturning the Planning Commission’s approval of Appeal 24-05, which re- instated the deleted conditions of approval 20 (twenty) through 26 (twenty-six) that were redacted within the Community Development and Housing Departments approval of Amendment to Conditions of Approval 23-01 for Administrative Development Permit 22-020; for the property located at 379 E. Industrial Road on
0.83 acres (APN: 0141-581-03) within the Industrial Light (IL) zone, Ward 3 (Attachment 3).
Attachments
Attachment 1: Resolution No. 2025-352 (Denying AP 24-06) Attachment 2: Resolution No. 2025-352 Exhibit A - project plans Attachment 3: Resolution No. 2025-353 (Approving AP 24-06) Attachment 4: Resolution No. 2025-353 Exhibit A - project plans Attachment 5: November 12, 2024 PC package for reference Attachment 6: Planning Commission approval of Reso 2024-034 Attachment 7: Appellant Justification (Appeal) Letter ADESA Attachment 8: WBCA response to ADESA appeal grounds
Attachment 9: Zoning Map
Attachment 10: Aerial Map
Attachment 11: Administrative Development Permit 22-020 Attachment 12: Amendment to Conditions 23-01
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Attachment 13: WBCA original Letter of Appeal (from 11.12.24 meeting) Attachment 14: “Exhibit B” Recorded Waterman CCR's
Attachment 15: “Exhibit C” Agreements of all parties
Attachment 16: ADESA original response to WBCA original appeal (from
11.12.24 meeting )
Attachment 17: Presentation
Ward:
3 Synopsis of Previous Council Actions:
No previous Council Action for this Item.