Urbn Leaf will be allowed to open a cannabis outlet at 16375 Bernardo Center Drive (the former El Torito restaurant).
Four years after filing its application, Urbn Leaf will be allowed to open a cannabis outlet at 16375 Bernardo Center Drive (the former El Torito restaurant), following a San Diego Planning Commission vote on April 6.
(Elizabeth Marie Himchak)

The San Diego Planning Commission has given its approval for Urbn Leaf to open a cannabis outlet in Rancho Bernardo despite opposition by community officials and residents.

With a 5-0 vote, the commission on April 6 denied appeals from the Rancho Bernardo Planning Board and resident Robert Brienza to overturn the conditional use permit approved by a city hearing officer on Jan. 25.

Opposition to the outlet surfaced about a month after Rancho Bernardo residents learned of Urbn Leaf’s February 2019 application to operate in a vacant building — most recently an El Torito restaurant — at 16375 Bernardo Center Drive.

San Diego Planning Commission Chairman William Hofman said he had “a lot of sympathy for the appellants.

“We have to go with the way the laws are and the way that it has been interpreted,” Hofman said. “It’s very important we stay consistent. … It meets the codes, it meets the requirements. I don’t think I could find any factual error or new information that would have changed that recommendation. I think the findings are supported so the findings we need to overturn the project on an appeal I can’t find that.”

One of the objections by the RB Planning Board was in regards to a 6-foot wall the applicant constructed to create a 1,000-foot separation between the outlet site and Hope United Methodist Church, which has a preschool on its property. With the wall’s placement, an engineer’s report stated the new distance was 1,033 feet. Without the wall, the outlet and church are too close, according to the Municipal Code.

Hofman said back in 2017 the commission’s intention for a barrier was freeways, not fences, but over time they were included if the height reasonably stopped access, and that became the basis for the commission’s subsequent decisions. Community members have argued that a wall is not enough of a separation.

“I hear the community and I can see that this is definitely something that is very controversial, that the community largely doesn’t want this outlet,” said Vice-Chair Kelly Modén when making a motion to deny the appeal. “However, reviewing all this and the appeal … I feel like it meets the letter of the law and what we have approved in the past.”

Consultant Phil Rath, speaking on behalf of applicant Will Senn, who was present but did not speak, noted the longevity of the application and said “we are pleased to be at the conclusion of this process.”

At least 24 residents spoke at the meeting in-person, over phone or ceded their time to another speaker to argue against cannabis use and the health and safety dangers they said it presents to the community.

Amy Davis, a Rancho Bernardo High School junior, spoke about the dangers of teenagers self-medicating with marijuana to deal with issues such as anxiety. She recalled a friend who last year died by suicide who started using marijuana in middle school and continued during high school to mask his anxiety and depression.

RB High junior Amy Davis speaking against a cannabis outlet opening in her community.
(Elizabeth Marie Himchak)

“The truth is most teens think marijuana is safe to use,” Davis said. “We see it being sold in retail shops and customers coming and going. When I drive around the city I see billboards with statements such as ‘get lit.’ … The common misconception is that it can help with depression and anxiety, something that many teens are struggling with.”

Davis added, “It is upsetting that kids have such easy access to (marijuana) in our community. … I have witnessed other high schoolers’ path to success be derailed by marijuana use and addiction. … I ask you to consider the health, safety and welfare of our community and approve the appeal as it will protect others from going down the same path as my friend. We don’t want a pot shop in the center of our community.”

Rath said he respected the appellants and their concerns.

“I think they are sincere and I think it is important to look at other situations in the city to see if these fears have actually been borne out,” Rath said. “The good news is we have more than two dozen of these facilities in the city now and most if not all of the concerns about what will happen in the future have not occurred in those other two dozen locations. So it stands to reason there is nothing unique about this community or suddenly those bad things would occur.”

Rancho Bernardo Planning Board member Ben Wier.
Rancho Bernardo Planning Board member Ben Wier spoke on the board’s behalf, asking the San Diego Planning Commission on April 6 to overturn approval of Urbn Leaf opening a cannabis outlet in RB.
(Elizabeth Marie Himchak)

The Rancho Bernardo Planning Board’s objections were presented by member Ben Wier, the board’s Development Review Committee chair.

“The residents of Rancho Bernardo are against the cannabis outlet,” Wier said. “Our residents have continuously spoken against the project for four years as this project has endured. While we’ve had upwards of several hundred residents have spoken against this, less than 5 percent have come out and spoken for this. I think the numbers there alone speak how the community feels about this project.”

According to city officials, the legal standard for appealing a hearing officer’s decision is when evidence supports that there was a factual error, new information, findings not supported or conflicts with a land use plan, City Council policy or Municipal Code.

The board in its appeal listed six appeal issues. They were:

• That the applicant, Willie Frank Senn, had a stipulated judgment against him in which he was restrained by the courts from operating or maintaining a cannabis outlet at the time the application was deemed complete.

• That the outlet is not in line with the RB Community Plan and would bring crime to the community.

• That the city project manager incorrectly inserted measurements to allow for the outlet’s approval.

• A factual timeline was not established to determine when a fence installed by the applicant separated the church and outlet.

• That the city project manager failed due diligence in verifying measurements.

• That the proposed use is not appropriate at the location per the conditional use permit.

City staff said in its written reply that the judgment against Senn was no longer in effect at the time of the hearing officer’s decision, and that Senn is legally allowed to operate a cannabis outlet.

In addition, the board did not demonstrate how an outlet’s presence would increase crime in the community, city staff wrote. And according to the reply, staff is not aware that crime is an issue at any of the other permitted and licensed dispensaries in the city.

Regarding the concerns about the distance from the church, city staff said the measurement of 1,033 feet was submitted by a licensed civil engineer, so they do not question it. There were also acceptable technical reasons to not count the Kumon Learning Center and residential area as reasons to deny the application.

Staff wrote that the 6-foot wall built by the applicant to separate the church and outlet is an acceptable barrier that creates a longer path of travel to meet the code’s distance requirement since the buildings are less than 1,000 feet apart. As for the other appeal issues, staff said the board did not provide evidence supporting the complaints.

In his appeal, Brienza’s objections included the community’s opposition to the outlet. He also contended that the project is not in compliance with the San Diego Municipal Codes and Ordinances or RB Community Plan’s commercial objectives.

City staff said the two appeals did not provide evidence of new information and that the project conforms with City Council policies.

Consultant Phil Rath speaking on behalf of applicant Will Senn and Urbn Leaf.
Consultant Phil Rath speaking on behalf of applicant Will Senn and Urbn Leaf to open a cannabis outlet in Rancho Bernardo during the April 6 San Diego Planning Commission meeting.
(Elizabeth Marie Himchak)

Rath, in response to the issues raised about the Kumon Learning Center’s proximity, the church and the community plan, said city staff covered them well. But he said he wanted to give further context. For example, Rath said youth-oriented facilities have been equally as close at other approved outlets in the city.

While acknowledging that Kumon’s clients are minors, Rath said the outlet occupies a small portion of the building in which it is located. That means it is not a minor-oriented facility per city code, he said.

The applicant constructed the wall to keep people from easily moving from the church to the outlet location, he said.

Rath said that providing the engineer’s measurements goes beyond what is usually done, and the measurements show the distance requirement is met. He also said the planning board “cherry picked” points in the community plan when writing its arguments for appeal.

In regards to the safety concerns, Rath suggested putting in the word “bank” in place of cannabis outlet. Banks occasionally get robbed, he said.

“That is something that happens with banks. That does not mean banks are not allowed in the community. It means we should carefully consider how do we allow these uses,” he said. “They are using the conditions we are agreeing to, that are expensive and protective of the public, as a rationale for why these are not safe.

“Nothing could be further from the truth. The conditions require us to engage in behaviors and manage our site in a way that ensures public safety.”


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