RLC of San Diego The Republican Liberty Caucus of San Diego

CITY STAFF PUTTING THE “BAD” IN CARLSBAD

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This article, written by RLCSD member Michael A. Schwartz was originally published on SD Rosta.

On February 18, over 250 citizens showed up at a Carlsbad Planning Commission meeting to support small business owner Lisa Gunther with her plan to open an indoor shooting range. She also owns the building that houses her existing gun store on Loker Avenue in Carlsbad. Lisa submitted all the required paperwork to the city for her recreational use project, but City Planner Don Neu denied her application. Lisa was forced to appeal to the Carlsbad Planning Commission.

A recent article in the Coast News does a great job with the basic facts, but doesn’t begin to tell the real story.

Outrageous Claims & Tortured Reasoning From Carlsbad’s Assistant City Attorney and City Planner

Most would agree that a city attorney’s job is to give unbiased legal advice to the city. That didn’t happen in Carlsbad. Here’s what did happen:

At the administrative level, City Planner Neu refused to give Gunther a minor conditional use permit (MCUP) because he believes that an indoor shooting range is not a permitted “recreational” use. Section 21.34.010(1) of Carlsbad’s Municipal Code allows “…flexibility for other select uses (i.e. athletic clubs/gyms, churches, daycare centers, recreational facilities, etc.)…” in planned industrial zones. City staff emphasized that this section of the city’s code was “the focus of the appeal tonight.”

Assistant City Attorney Jane Mobaldi asserted, however, that the commissioners were to decide whether an “abuse in discretion” by the city planner occurred and thus changed the focus of the appeal.

When asked to explain his decision-making process, City Planner Neu said an indoor shooting range is “unique” and that it is not exclusively used for recreation. He contended further that there is a safety concern due to exposure to lead. Neu claimed that lead exposure makes a shooting range different from the other recreational businesses in the zone—businesses like indoor go-cart racing tracks, an indoor ice skating rink, or a swimming pool—because of the safety threat it poses.

City Planner Neu went on to say an indoor range isn’t recreational and if Carlsbad wanted an indoor shooting range, the city would have listed that use in the municipal code. Interestingly, however, the other businesses he mentioned are not explicitly listed. Also, these other unenumerated recreational uses have well-known issues with very toxic and dangerous chemicals. The go-cart tracks, rink and pool somehow received Carlsbad’s approval in the past, however.

Split Decision By Carlsbad’s Planning Commissioners After More Outrageous Claims & Tortured Reasoning

The commissioners had a chance to comment. Commissioner Marty Montgomery described the literature and research provided by the city staff, reams that ostensibly supported the denial of Gunther’s range, as feeling like a “scare tactic.” Commissioner Montgomery went on to question if the city planner’s determination was “arbitrary” and asked if there were the same concerns with the indoor go-cart track and indoor pool that were mitigated as a condition of approval.

I reviewed the pages and pages of lead exposure articles supplied by city staff and now wonder why all the talk about lead or OSHA requirements, if the indoor range simply did not fit into the zoning regulations as City Planner Neu determined? None of this was the basis for denying the MCUP, which ruled specifically that indoor ranges are not a “recreational” use.

Could it be that Neu searched for extra appeal-denying reasons to bolster his position?

At this point in the hearing, Assistant City Attorney Mobaldi interjected to “guide the commission” by telling them the members are “not debating the pros and cons or polling people to see how many people like ranges versus people who do not.” Mobaldi said the commission merely was to decide whether his Neu’s determination was supported by evidence. Any benefit of the doubt had to be in favor of the city planner’s determination, Mobaldi advised.

Commissioner Montgomery continued to push and asked why an indoor shooting range is unique compared to an ice skating rink. City Planner Neu explained that an ice skating rink and an indoor pool do not have the same types of “known hazards” and “environmental hazard.”

Any high school chemistry student in attendance could easily refute that claim. But, again, why make that claim if this case is simply about whether a shooting range is a permitted recreational use in the planned industrial zone?

As Commissioner Montgomery started making some real traction as to the real reasoning, Assistant City Attorney Mobaldi interrupted, “We are not debating with the city planner the pros and cons of a shooting range, but was there evidence at the time he made it.” And that she “wants to focus on whether or not there was basis for his decision.”

Commissioner Neil Black commented, “I think we can all recognize that a shooting range is used for recreation.” His statement was met with applause from the audience. Assistant City Attorney Mobaldi responded to his comment, “It’s not precluded, but it must be allowed or it is banned.” The “free market” does not decide nor does a “vote of the people,” Mobaldi opined. She went on to say the existing indoor shooting range that the City of Carlsbad currently maintains and operates “wasn’t approved as a recreational facility; it was approved as a governmental facility.”

So according to Mobaldi and city staff, Carlsbad’s city government can have a gun range that is full of dangerous lead contaminants, but ordinary people cannot?

Commissioner Montgomery asked for clarification regarding voting against the city planner’s determination. He pointed out that the wording in his packet said the planning commissioners could vote against the city planner’s determination if they believed he made an error, not merely because they believed he has abused his power. Until then Assistant City Attorney Mobaldi had advised the commissioners that they could overrule Neu’s decision only if he “abused his discretion.” Mobaldi, when pressed, agreed that the word “error” was a part of the standard for finding a basis upon which to uphold Lisa Gunther’s appeal.

Commissioner Jeff Segall asked for clarification because he found what they were voting on was “confusing.” Mobaldi explained that the vote by the commission was whether the city planner’s determination was an “abuse of discretion,” again leaving out the “error” part.

Assistant City Attorney Mobaldi’s omission caused something to happen that I have never witnessed in a city meeting. The entire crowd in unison and out loud corrected Mobaldi all at once by saying “or error!”  Mobaldi was forced to alter her direction to the commission by adding “error.” Viewthe exchange at the three hour mark.

So, amazingly, after three hours of public meeting, Mobaldi told the commissioners that they cannot use their own judgment and that they were allowed only to decide if the city planner “abused his discretion.” The audience, sensing a manipulation by omission, had to correct her misleading direction.

Commissioner Segall later called the audience “rude” for the interruption. I strongly disagree. The crowd chimed in to stop an injustice. They were patient and polite through three hours of discussion and through 30 speakers. The intent of the crowd was not to insult or throw the meeting off, but to keep it honest. It was purely accountability. Thereafter the audience continued to be polite and orderly.

Commissioner Segall later explained that his vote against the Gunther appeal was based on Assistant City Attorney Mobaldi’s imposed narrow and limited “area of discretion.”

The discussion after the vote between city staff and the commissioners leads me to believe that Segall generally is in favor of a shooting range in Carlsbad, but that he was coerced into his vote by Mobaldi’s contrived legal advice.

Commissioners Montgomery, Black and Hap L’Heureux did not allow Assistant City Attorney Mobaldi’s manipulation to deter their vote. Montgomery went so far as to describe Assistant City Attorney Mobaldi’s behavior as “strong armed.” Black said he did not “trust” city staff in this decision and declared that City Planner Neu was in “error” on this decision.

The final vote resulted in a 3 to 3 tie, but Assistant City Attorney Mobaldi was not done with her crusade! When the commissioners asked how a tie is handled, she replied that it is a denial for Lisa Gunther’s indoor range. Carlsbad’s Municipal Code defines the outcome differently:

2.24.070 – Quorum and vote.

(c) Tie votes shall constitute “no action,” and the matter voted upon remains before the commission and is subject to further commission consideration. If the commission is unable to take action on a matter before it because of a tie vote, the matter shall be again considered at the next regular commission meeting. If the matter receives a tie vote at the subsequent meeting, the matter shall be denied.

At this time, there appears to be no plan to put this issue on the agenda again in a public Planning Commission meeting in order to comply with Carlsbad’s code.

Mobaldi’s final trick was to discourage inquiring commissioners from explicitly adding indoor shooting ranges to Carlsbad’s municipal code. The commissioners dropped the issue.

The Gunther recreational shooting range remains a hope and not a reality.

Next Steps and Call to Action

Lisa Gunther is undaunted and moving forward to win approval of this project. Her appeal has already been filed. There will be at least two city council meetings before Lisa can open her range. One council meeting will be held to overturn or uphold the 3-3 vote by the Planning Commission and then another meeting to approve or deny a permit for the indoor range.Watch Full Movie Online Streaming Online and Download

If you live or work in Carlsbad and support an indoor shooting range, please email Lisa Gunther at lisa@gunthergifts.com or stop by her shop. If you care about Second Amendment rights, email me at GOCSchwartz@gmail.com. We have a lot of persuading to do and need your help to make government work for us.

Judging by the emails, texts, social media comments, and conversations I have had, Carlsbad’s assistant city attorney’s behavior has shined a white-hot spotlight on Carlsbad’s city government. Is this issue about guns? It didn’t start that way. If it is now, it is because Carlsbad’s staff made it about guns due to their own personal biases and agenda. This isn’t fair to business owners like Lisa Gunther and it is a wrong we hope to see righted at a future council meeting by Mayor Hall, Councilmembers Wood, Schumacher, Blackburn, and Packard.

A lady I met for the first time that evening put it best when she walked out of Carlsbad City Hall saying, “You don’t think you need to pay attention to this stuff until you see something like this, and now I wonder why I’ve never paid attention before.”

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Schwartz is the Volunteer Regional Coordinator for Gun Owners of California

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