CM
CARNEY MEHR
A law firm
Kendra L. Carney Mehr
23 Corporate Plaza Drive, Suite 150
Newport Beach, CA 92660
(949) 629-4676
[email protected]
September 30, 2024
Planning Commission
City of San Bernardino
Vanir Tower
290 North D Street
San Bernardino, California 92401
via Mike Rosales
[email protected]
Sent via email
Re: Address: 379 E. Industrial Road, San Bernardino
Appeal No.: AP 24-05
Amendment to Conditions of Approval 23-01 for Administrative Development Permit 22-20
To the Honorable Members of the Planning Commission:
This response to the Appeal of the July 20, 2023, Amendment to Conditions of Approval 23-01 for Administrative Development Permit 22-20 is submitted on behalf of S&E Investments, LLC ("S&E") and Adesa International, LLC ("Adesa"), owner and tenant, respectively ("Respondents"), of 379 E. Industrial Road in the City of San Bernardino (the "Property").
Request to Continue the Hearing
The present appeal was submitted by the Waterman Business Center Association ("WBCA") on September 4, 2024, to challenge the Amendment to Conditions of Approval 23-01 for Administrative Development Permit 22-20 issued July 20, 2023. The Respondents were notified of the appeal the following week, on September 10, 2024. At the same time, the Respondents were informed that the appeal hearing before the Planning Commission would be held October 8, 2024. That same day, September 10"h, this office informed the City that Adesa's counsel would be out of State for business October 6, 2024, through October 9, 2024, and requested the matter be continued to the following Planning Commission meeting. The City denied the request and stated that only the appellant, who does not own or operate the Property impacted by Permit 22-20, could request such a continuance.
Respondents were provided less than 30 days' notice of the hearing before the Planning Commission, are unable to have their counsel present, and hereby renew their request to the Planning Commission to continue this hearing to the next available date.
Summary of Opposition
As discussed in greater detail below, Respondents oppose the appeal for the following reasons:
1. The appeal is untimely.
2. There is no nexus between the permit and the conditions the WBCA seeks to impose.
3. The conditions the WBCA seeks to impose are outside the scope of the relative CC&Rs and would cause the Respondents to be treated differently from all other owners/operators within the business center.
4. The grounds and evidence submitted by the WBCA are misleading.
5. The allegations made by the WBCA are best addressed between the WBCA and Respondents without burdening the City.
Background
The Property
The Property consists of a 0.83-acre parcel improved by a 16,237 square-foot industrial warehouse. The lot includes designated parking spaces and is accessed by a standalone private driveway contained within its own parcel that is not otherwise designated as a Common Driveway pursuant to the Association's CC&R's. To be clear, the entirety of the lot is owned and used by the Respondents. The lot does not include common area apart from shared utilities such as drainage. The Property is highlighted on the Plat Map shown here:
2 (34)
75.7S
120.55
114.38
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• - 285.10
4 2.03 192 sc. 338.49
124.73
10 $5 14
107 e3* 11
12 11s I81 »>
149.72
301.26
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-COWHERCHAt - — - - 126.39
Furthermore, Exhibit "C" to the Association's CC&Rs shows that the Property is accessed by a designated private driveway, not a Common Driveway:
LEGEND
ALLY COMMON ORIEWAYS
WATERMAN AVENUE
1 Associe LEAVING SHORE ENON DRIEVATS
Associates 1: 150° 4/27/07
MEDES •LANO SURVETTO JEK J08NO: 278.00
3 Original Administrative Development Permit 22-20
When Adesa leased the Property, Adesa obtained a business license and utilized a temporary nitrogen tank to quick-freeze their fresh food products to allow for a longer shelf- life. Adesa applied for Administrative Development Permit 22-20 in order to install a permanent nitrogen tank for this same purpose.
During the application process, Adesa sought the approval of the WBCA for the construction. The WBCA agreed to approve the improvement but sought to impose multipl 'onditions in addition to the City's conditions. Adesa initially acquiesced to the WBCA's additional conditions because Adesa understood them to be restrictions limited to the duration of construction.
The conditions demanded by the WBCA were included as Condition Nos. 20 through 26 to Administrative Development Permit 22-20, issued June 22, 2022, and shown here:
20. Bobtail and semi-trucks will park, load, and unload only in the areas designated on Exhibit A. 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.
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.
Following completion of construction of the improvement, Adesa learned that WBCA intended for the conditions to be permanent. Adesa, through this office, contacted the City and requested an amendment to the permit. On July 20, 2023, the City issued Amended Administrative Development Permit 22-20 which removed all seven conditions required by the WBCA. The amended permit shows conditions 20 through 26 are removed:
4 20. Bobtail and semi trueks will park, load, and unload only in the areas designated on Exhibit Applieant will limit semi-trucks access/egress to and from the let to between the hours of 9:00 pi and 6:00 am. No semi-trueks will park on site outside of these hours.
21. Applicant agrees to sereen the Liquid Nitrogen Tank in accordanee with the plans approved by WBCA and the metal sereening material will be painted te mateh the main building field eeler ef379 E Industrial Building.
22. Applicant agrees to install and maintain landseaping (including proper irrigation) to sereen views from adjacent property in accordance with the plans to be appreved 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.
25. The storm drain trench (which is WBCA property) is to remain undistarbed before, during and after construction. The storm drain flow of the let will be maintained and not altered.
26.In-additien te these conditions, WBCA is requiring proper netice (minimum 3 business days) and insurance before starting construction over, near, under, around the fire water main that runs through the proposed construction area.
In a memorandum informing the WBCA of the City's issuance of an amendment to the permit, the City stated that:
After researching the original entitlement for the property located at 379E. Industrial Road (APN:0141-581-03), the City of San Bernardino has become aware that the conditions of approval within Administrative Development Permit 22-20 placed on 379 E. Industrial Road (APN:0141- 581-03) are more restrictive than conditions on other businesses within the business complex.
The City has determined that such conditions are not required under the business complex's original entitlement conditions or the City's development code restrictions and therefore, the City is removing Conditions of Approval numbers 20-26 within Administrative Development Permit 22-
20. The conditions being removed are better suited for private negotiation between the Association and the business owner. If you have any questions, please reach out to the City of San Bernardino Planning Division. Thank you.
The WBCA received notice of the amendment the same day as the Respondents, July 20, 2023. The WBCA submitted the present appeal September 4, 2024.
Respondents Request Planning Commission Deny the Appeal The Respondents request the Planning Commission deny the appeal for the following reasons:
5 The Appeal is Untimely
WBCA received notice of the Amendment to Administrative Development Permit 22-20 on July 20, 2023, the same day as the Respondents. Further, WBCA sent a letter to the City on July 24, 2023, discussing the same Amendment. However, WBCA's application to appeal this determination was not submitted until September 4, 2024. 412 days after the actions was taken.
The face of the City's appeal form states "pursuant to Section 19.52.100 (Filing of Appeals) of the City of San Bernardino Development Code, an application for appeal must be filed on a City application form within 15 days following the final date of an action, accompanied by the appropriate appeal filing fee."
This accurately reflects Section 19.52.100. Additionally, Section 19.52.140 (Reconsideration) further states that "if more complete or additional facts or information, which may affect the original action taken on an application by a review authority are presented, the review authority may reconsider such action taken, if a request for reconsideration is filed with the Department within 15 days following the final date of action." And, on the face of the Amendment itself, the City stated:
Please be advised that the decision is final unless a written appeal is filed, with the appropriate fee, within fifteen (15) days of the date following the final date of approval, pursuant to Section
19.52.100 of the City of San Bernardino Development Code.
The permit became final on August 4, 2023, at which point the Respondents obtained a vested interest in its validity and finality. A gap of 412 days from the time the City took action makes the current appeal untimely. As such, it should not have come before the Planning Commission, and it must be denied.
No Nexus Between the Conditions and the Permit
The Property has a separate, private driveway and dedicated parking lot for its deliveries and employee parking. Additionally, Industrial Road allows public parking without restriction. Despite this, the Association seeks to impose conditions upon S&E indefinitely and Adesa for the duration of its lease, that uniquely burden this particular Property, and only this Property.
In the case of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the U.S.
Supreme Court determined that a condition of permit approval had to have an essential nexus" to the proposed project. There is no such nexus here. 6 Specifically, Condition 20, which WBCA now seeks to reinstate, places strict limitations on S&E and its tenants, current and future, in its own, separate and private lot, such that the Property can only allow semi-trucks access to and from the Property between the hours of 9:00 p.m. and 6:00 a.m. WBCA asserts this condition is necessary to "limit the traffic congestion and unnecessary parking associated with the use." However, the vast majority of the year, Adesa receives an average of three semi-trucks, three times per week with each of these semi-trucks being parked entirely on Adesa's lot, for an average of 45 minutes. These trucks use the driveway that serves the Property only. It takes less than one minute for semi-trucks to back into the private drive and trucks never park to block traffic in the street. Adesa has submitted videos that show its employees are able to park and exit the parking lot while the semi-truck in parked in the lot for deliveries. And, the streets surrounding the business center, primarily Waterman, Industrial, and Commercial, are common semi-truck thoroughfares regardless of Adesa's use. Therefore, there is virtually no impact to the remainder of the Association's properties or their respective parking lots, let alone congestion or any other issue that results in spillover parking.
This condition has no nexus to the use permitted and it unreasonably limits Adesa's business which relies on deliveries from its vendors that arrive during daytime hours. Adesa is a fresh food manufacturer, its products and ingredients have a short shelf-life, and it does not rely on frozen storage at this location. Adesa's business model and product do not allow for the ability to require its vendors to deliver only overnight. Adesa is subject to both FDA and USDA requirements. The FDA requirements for safe transport/loading/unloading of perishable food items require that the food items being delivered be maintained at a set temperature during transport/loading/ unloading to avoid contamination or "temperature abuse." The basis for this rule is that:
"Maintaining the desired or ideal holding temperature is a major factor in protecting perishable foods against quality loss during storage and distribution. Ouality loss is a function of both time and temperature abuse. Abuse is additive and, even for short periods of time during loading, transit, and unloading, may cause a considerable amount of quality loss by the time the product reaches its destination.
Abuse can result from temperatures that are either too high or too low.
For example, high temperatures cause loss of vitamin C in asparagus, and sugar or sucrose depletion in fresh sweet corn (figure 1). Low temperatures can cause chilling injury to fresh fruits and vegetables.
This may not show up until the product is at the retail store or on the consumer's table, where failure to ripen properly, off-flavors, discoloration, pitting, and other signs of poor quality may be evident." US food defense guidelines also require loading and unloading of food products take place as close as possible to the site of use (the building) to prevent adulteration of the product.
There are USDA inspectors on the property to monitor the process each time the tenant runs production, and they will not allow ingredients to sit on Industrial Road or be carted from the street to the back of the building due to these risks. Finally, this prohibition on deliveries will severely, negatively impact S&E's long-term ability to lease the Property going forward and the value of rent it will be able to demand should Adesa be forced to vacate.
There is simply no nexus between the condition and the Administrative Development Permit allowing the installation of the nitrogen tank.
Conditions 20 Through 26 Are Outside the Authority of the WBCA and Cause Respondents to be Treated Differently from All Other Owners and Users in the Center WBCA does not provide any authority to show its ability to impose Condition 20 for the improvement. To the Respondents' knowledge, the condition limiting hours of delivery is not imposed on any other property within the Association. In fact, the Waterman Business Center Rules and Regulations, adopted January 18, 2022, allow for "truck loading and unloading" without restriction as to time of day. The only Association Rule in Article I, Section Il pertaining to truck parking and loading states "all truck loading and unloading must be done only on an Owner's Lot (not in the public street or from another Owner's Lot) and shall be done in such a way that Common Driveways are not blocked or obstructed when trucks are being loaded or unloaded." Adesa fully complies with this Rule. While the CC&Rs further address common driveways, as discussed above, loading and unloading at this Property does not require use of a common driveway.
Additionally, a review of aerial photos over time reveals that other properties within the WBCA freely park semi-trucks at various locations in the surrounding parking lots and do so at all hours of the day and night. These images are attached hereto as Exhibit "A." On its face, this restriction penalizes S&E and Adesa by restricting them from enjoying the same rights and uses as the other properties within the Association. The City is prohibited from imposing discriminatory conditions against S&E and Adesa.
WBCA's Allegations Are Misleading
To justify its appeal, the WBCA makes the following three allegations:
1. Adesa employees park on adjacent owners' lots due to lack of parking.
2. Semi-trucks block and que on Industrial Road during business hours; and
3. Trucks block fire lanes.
Respondents provide the following responses:
1. Adesa is aware of one instance in which an employee parked in an adjacent lot since the tank was installed, two years ago. This was an isolated incident in that once, a brand-new employee parked in an adjacent lot, not realizing they were 8 required to park in Adesa's lot or on the street. In actuality, Adesa's employees are able to navigate around delivery trucks as shown in Exhibit "B", videos submitted concurrently with this correspondence.
2. Semi-trucks regularly travel on Industrial Road. Very, very few of these delivers to Adesa. The reality is that there are trucking operations immediately across Industrial Road to the North and at the end of the Center to the East:
379 E Industrial Rd
Adesa instead receives infrequent deliveries by semi-truck, generally three times per week. It takes less than one minute for a semi-truck to reverse into the private driveway. This is shown in Exhibit "C", ', a video submitted concurrently with this correspondence.
3. Delivery trucks previously did park at the curb identified as a fire lane, but only at the direction of the WBCA and the City. Exhibit "D" is exhibit created by WBCA and specifically referenced in Administrative Development Permit Condition 20. An image from the document is provided here for convenience:
Bootall
9 The grounds and evidence submitted by the WBCA are misleading. The single photo parking available to one business condo that shares a parking lot with at least 14 other office condos and businesses is made without evidence. And the claim that delivery trucks are suddenly parking in fire lanes without disclosing that the WBCA demanded they do exactly that is disingenuous at best.
The WBCA's Allegations are Best Addressed By WBCA and Respondents Without Burdening the City.
As the City determined and informed the WBCA more than a year ago, "the conditions being removed are better suited for private negotiation between the Association and the business owner. Not only is it far too late for the City to consider any appeal with regard to this permit, but the grounds alleged are inappropriate. Pursuant to its own CC&Rs and Rules and Regulations, the WBCA is already empowered to address parking, loading, and outdoor storage, among other possible issues. It is not the role of the City to enforce private rules and regulations.
Conclusion
For the foregoing reasons, the Respondents respectfully request the Planning Commission deny the appeal of Amendment to Conditions of Approval 23-01 for Administrative Development Permit 22-20
Best regards,
A Carnetlet
Kendra Carney Mehr
Principal Attorney
CC:
Thomas J. Speiss III, Snell & Wilmer
Jeffrey M. Singletary, Snell & Wilmer
S&E Investments, LLC
Adesa International, Inc.
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