Council continues appeal over Waterman Business Center nitrogen tank; parties given 45 days to negotiate

The San Bernardino City Council on Wednesday continued for 45 days a disputed appeal over conditions attached to an administrative development permit for a 9,000‑gallon outdoor liquid nitrogen tank at 379 East Industrial Way, ordering the tenant and the Waterman Business Center Association to try to reach an agreement before the matter returns to the council on Nov. 19, 2025.

The matter reached the council after the planning commission restored conditions of approval (conditions 20–26) that city staff had removed in an amended administrative development permit. The restored conditions address truck parking and routing, hours for semi‑truck deliveries, landscaping and screening, disposal of waste, storm‑drain protection and similar site controls at the 12‑building industrial complex in Ward 3.

Why it matters: the dispute blends a procedural disagreement over whether the association’s appeal was timely with substantive concerns from neighboring tenants about large truck deliveries, safety and property management. The tenant and its attorney argued the appeal was untimely and that the city’s amendment created vested rights; the association and its attorney said the planning commission properly weighed safety and nuisance evidence and that the conditions are necessary to protect other businesses and people in the center.

City staff and the planning commission background

Gabriel Elliott, the city’s director of community development, told the council that staff issued Administrative Development Permit (ADP) ADP‑22.02 for the installation of an approximately 9,000‑gallon outdoor liquid nitrogen tank and that conditions 20–26 were added to govern truck parking, ingress/egress, hours of operation, screening and other site controls. Elliott said the Association (Waterman Business Center Association, WBCA) protested the removal of those conditions after staff later issued an amended ADP that removed them; WBCA appealed the removal to the planning commission.

Elliott told council that WBCA submitted a letter of interest within what staff said was the 15‑day appeal window but that the letter was not processed promptly and the formal appeal was not filed until late. The planning commission ultimately heard the appeal and restored the prior conditions; the tenant (identified in the record as Odessa/Adesa) and its counsel appealed that planning‑commission decision to the city council.

Legal and factual arguments presented

Attorney Kendrick Carney, representing the tenant/permit holder, argued principally that the association’s appeal to the planning commission was untimely and that the tenant acquired a vested right in the amended permit after the time to appeal elapsed. "The most important fact tonight is that the original appeal heard by the planning commission was untimely," Carney told council, citing a timeline in which the city amended the permit on July 20, 2023 and the association did not file a formal appeal and pay the required fee until September 4, 2024 — about 412 days later. Carney said the city had told the parties that the decision would be final unless an appeal and fee were filed within 15 days.

Carney also argued that many of the conditions were private tenant‑landlord issues beyond the city’s scope and that, under case law requiring an "essential nexus" between a permit condition and the public purpose it serves, the delivery‑time restriction (condition 20) lacked such a nexus to the tank installation.

Attorney Mohammed Gause, representing the Waterman Business Center Association, told the council the planning commission had evaluated extensive factual evidence about large tractor‑trailer deliveries blocking drive aisles and fire lanes and that the commission was within its discretion to restore the conditions. "What we're dealing with here is large 18‑wheeler food delivery trucks," Gause said. He added that the association had repeatedly raised operational and safety complaints and that the planning commission found that the conditions were necessary to address disruption and safety risks to other tenants.

Evidence and public testimony

Council members viewed photographs submitted to the record showing trucks parked in red zones, blocking vehicles and obstructing access from tenant parking spaces. Appellant‑representatives and several tenants and property owners testified that semi‑trailers at times block fire access or prevent safe egress for neighbors.

A public commenter, Dolores Armstead, described safety concerns and asked the council to keep the conditions in place: "The company is already in violation of the conditions of approval ... They totally disregard the conditions of approval," Armstead said, adding worry about a large outdoor tank sited near other businesses.

City and other officials also confirmed that the fire department inspected the tank and that the department had not filed enforcement actions that would revoke the permit. The tenant’s counsel said the tenant had obtained necessary permits for the tank and that earlier temporary installations had been lawful or promptly regularized.

Council action and next steps

After extended argument and several substitute motions, council voted to close the public hearing and continue the item for 45 days to allow the tenant, the landlord and the Waterman Business Center Association to try to reach an agreement. The council recorded the date certain of Nov. 19, 2025 for return of the item if no agreement is reached. The motion to continue passed by recorded unanimous voice/roll call vote at the Sept. 17 meeting.

The council’s continuation preserves the planning commission’s factual record while giving the parties a structured window to resolve outstanding operational disputes outside of further formal litigation. Counsel for both sides warned the council that any final decision could be subject to judicial review if a party pursues litigation.

What council members pressed on

Council members repeatedly asked staff and counsel about (1) whether the association had been given timely notice and direction to file a formal appeal and pay an appeal fee; (2) how the ADP amendment had been handled internally when leadership in the Community Development Department changed; and (3) whether the conditions were intended as construction‑stage measures or ongoing operational restrictions. Director Elliott acknowledged procedural inconsistencies in the file and told council that staffing transitions contributed to confusion over how the July 2023 amendment was processed.

Background and context

The contested site is in Ward 3 in the Waterman Business Center, a multi‑tenant industrial/office complex. The original ADP and later amendment concern the permanent siting and operation of an outdoor nitrogen tank the tenant says is essential to its food‑freezing operations. The association contends the tank’s truck movements and deliveries have harmed other tenants’ operations and safety.

Ending

If the parties do not reach agreement by the Nov. 19 hearing date, the council will consider the planning commission’s restored conditions and the tenant’s timeliness/vested‑rights arguments for a final decision. Either outcome could prompt further legal action by one of the parties.