County supervisors ponder cannabis product sales in Riverton Commons – Well, they can do it everywhere else

A seemingly simple adjustment to Conditional Use Permit (CUP) parameters for the Riverton Commons Shopping Center that would expand retail uses not specifically listed in the original 2003 permitting took a turn toward the complicated when recently legalized marijuana-based products entered the conversation.

Planning Director Joe Petty and applicant ELP Riverton, LLC representative Stephen Pettler explained that the requested changes would allow businesses not common in 2003, but since popularized in the smoking culture and allowed in all other commercial areas of the county by-right, to be added to Riverton Commons more tightly drawn uses list.

Planning Director Joe Petty, left, addresses the reasons Riverton Commons is treated differently on by-right commercial CUP permitting uses, as opposed to every other commercial space in Warren County – the short answer: an obsolete commercial uses list for the shopping center dating to 2003. Below, CUP Modification applicant attorney Stephen Pettler tells supervisors his client just wants to be treated like everybody else in Warren County commercial districts. Royal Examiner Photos by Roger Bianchini

Among the uses listed in the application to amend the original CUP uses list, which Petty noted was previously amended in 2007, 2008, and 2014, are a variety of nicotine tobacco, alternate non-nicotine, and vape products and accessories, as well as “Cannabidiol (CBD) … Hemp and related products”. The latter CBD and Hemp products include non-THC medicinal uses including pain reduction, and now legalized marijuana (THC) related products as legally permitted for marketing by state law.

The first fly in the ointment of “routine” was a statement from Valley Health representative Gretchen Brill to open the public hearing. Brill informed the supervisors that Valley Health opposed the addition of both tobacco and Cannabis-related products for retail sale in the shopping center, in proximity to a trio of Valley Health’s outpatient facilities.

“Valley Health has made a significant investment in facilities to serve urgent needs, rehabilitation of patients, and ongoing primary care in Riverton Commons Plaza,” Brill, who identified herself as a Registered Nurse and Director of Valley Health’s Urgent Care and Employer Health Clinics in the Riverton Commons Shopping Center, said in opening her opposition statement. She continued, pointing to Valley Health’s “intentional” placement of three facilities in Riverton Commons “for easy community accessibility, and because of the family-friendly profile of this location.”

Gretchen Brill told supervisors her employer, Valley Health, opposes the CUP Modification permitting tobacco, and most pointedly cannabis-based products, near their three outpatient facilities in Riverton Commons.

Brill then added, “Valley Health takes very seriously our mission to serve our community by improving health. Our commitment to health in Warren County has been especially evidenced in our beautiful new hospital along Leach Run Parkway. Likewise, our Valley Health Urgent Care, Family Practice, and Physical Therapy Clinics in Riverton Commons remain dedicated to providing excellent patient care.”

Brill then pointed to the existing presence of “numerous cannabis and CBD shops, 10 to be specific, in the Town of Front Royal” and provided a photo of one such shop next to Valley Health’s Urgent Care facility in the Royal Plaza Shopping Center on South Street on Front Royal’s southside.

As Brill pointed out, Valley Health’s in-town Urgent Care facility at Royal Plaza Shopping Center already has a cannabis CBD retailer next door.

“For us at Valley Health, having this sort of vendor in very close proximity to our health care offices is an opposition in our mission,” she asserted, then asking specifically that “cannabis not be added to the Conditional Use Permit of the Riverton Commons Shopping Center, where we at Valley Health will keep working hard to serve the people of Warren County by improving health through excellent in-patient care – thank you very much for your understanding and support,” Brill closed.

Unaddressed, precisely, was exactly how the addition of the cannabis-related products specifically would interfere with Valley Health’s mission. As Brill pointed out, such proximity already exists at a shopping center location in town.

Stephen Pettler, of the Winchester law firm of Harriston-Johnson, representing CUP Modification applicant ELP Riverton, LLC, replied to Brill’s comments. “The only reason that we’re here tonight is because this is a unique piece of property in Warren County,” he opened, echoing some of Planning Director Petty’s introductory comments. “Every other shopping Center that’s been approved in Warren County can, by right, sell the same kind of products that this tenant – Game of Smokes – which has a shop up in Stephens City … (wants to market here),” Pettler began, describing a “clean”, well run tobacco and vape business, and mentioning another potential tenant interested in a Riverton Commons site.

“If it were anywhere else, they would just file for their business license and go about their business,” Pettler told the supervisors. He noted the original by-right uses listed in Riverton Commons CUP of 2003 simply reflected popular uses of the time, drawn up by an owner without experience with a national chain-anchored shopping center. He pointed out that the Riverton Commons CUP had to be amended to allow the Valley Health outpatient services now located there.

“Urgent Care wasn’t a thing really back in 2003 – you didn’t see a lot of doc-in-a-boxes in different places, so they had to add that use to the Conditional Use Permit,” Pettler informed the supervisors of the similarity between the current request and the earlier modification request allowing Valley Health’s presence in the shopping center.

“So, we’re asking to be treated like everybody else in Warren County; to correct what I think is an administrative issue and just update with uses that weren’t available before,” the applicant attorney told the board.

Addressing Brill’s generally critical comments about cannabis sale proximity to Valley Health operations, Pettler observed, “Her personal opinions about cannabis are duly noted. But cannabis isn’t just smoking pot. It also has other attributes that are now legal in Virginia and can be sold at an establishment like this. It’s not marijuana THC; there are CBD and other things that can be derived from these substances.”

Pettler seemed to be targeting medical marijuana uses in products devoid of the THC aspect associated with “getting high” recreationally. As an example of such uses, much national media attention was given to National Football League (NFL) players coming off injuries in recent years, lobbying the NFL to allow medical marijuana use for pain relief as an alternative to the physically addictive, harder opioid drugs being traditionally and legally prescribed by team doctors for their recovering, injured players.

In conclusion Pettler told the county supervisors his client would like them “to focus on what’s fair to businesses in the county and bring this center into conformity with the rest of the county.”
In response to questions, Pettler clarified his tenant as owner of two particular parcels with potential clients awaiting a decision from the board on the CUP modification request. A lengthy discussion of the board ensued, reflecting some perhaps dated opinions about cannabis use and cannabis-related products, and revealing other oddities of the existing Riverton Commons CUP business listings, including the presence of another smoke-vape shop at another parcel in the shopping center and a ban on Yoga Centers.

County Attorney Jason Ham, right, responded to Archie Fox’s question about legal liability for rejecting the CUP Modification request at Riverton Commons, by saying ‘Yes’, the County could face litigation for creating a double standard on by-right commercial uses. Consequently, the board voted 3-1, Cullers dissenting, Carter absent, to approve the CUP Modification request, but without THC-cannabis recreational use products included.

But a bottom line seemed to be drawn in a question from Fork District Supervisor Archie Fox to County Attorney Jason Ham on whether board denial of the request was legally challengeable.

After clarifying who such a challenge was likely to come from, the applicant most likely, rather than a third party, legal counsel’s opinion was, yes, it could face a legal challenge. And from the evidence on the table about by-right uses throughout the county versus one perhaps outdated administratively constructed CUP format, it would appear to be a legal challenge putting the county government in a pretty tight legal corner as its codes currently stand.

Consequently, after several aborted attempts at a motion, Walt Mabe made a motion, seconded by Fox, to approve the modification request with a stipulation that THC-containing “intoxicating” cannabis products would not be allowed for sale among the non-THC, CBD-based products that would be allowed. The motion passed 3-1, with Board Chair Cullers dissenting and Tony Carter absent.

See this extended discussion, along with other public hearing discussions and votes, including a number of CUP requests for short-term tourist rentals; a storage facility for vehicles; a private, church-related school; vacating an unimproved Right Of Way in the Sealock Subdivision; and a housekeeping matter related to conforming with updated state vehicle codes, in the County video.