Berkeley’s Pot Club Mistake

Because of an apparent oversight by the city council, a pot club is about to move near a private elementary school and a preschool. And local businesses aren't happy about it, either.

When the Berkeley City Council voted in 2004 to block medical marijuana dispensaries from doing business within 1,000 feet of public schools, it seemed like a sensible move. After all, few people would argue that kids should spend most of their day next to a pot club, even if the facility does provide legitimate, important services. But the council apparently neglected to include private schools, preschools, and day-care centers in its ordinance. So now, six years later, a medical marijuana club is planning to move to a site in West Berkeley close to both a private elementary school and a day-care facility, and the schools, along with local businesses, may end up going to court to stop it.

The Berkeley Patients Group, which has been on San Pablo Avenue for several years, plans to move into the old Scharffen Berger chocolate factory at the corner of Heinz Avenue and Seventh Street, near West Berkeley Bowl market. The building appears to be roughly 500 to 600 feet from a private French school, Ecole Bilingue de Berkeley, and is even closer to Aquatic Park Preschool. “We are not opposed to medical marijuana per se, but we think it’s reasonable to ask that our students and the children at Aquatic Park Preschool have the same protection under the law as other school children in Berkeley,” French school spokeswoman Jennifer Monahan said in a statement.

Berkeley Mayor Tom Bates said in an interview that he believes that the council did not purposely exclude private schools and day-care centers from the 2004 law, and had merely made a mistake. “I think it was an oversight,” he said, “a straight-out oversight.” A city report on the 2004 law notes that councilmembers decided to include the provision restricting pot club locations out of “concern that entities that deal in controlled substances should not be located near schools.”

However, it’s not clear whether the council plans to fix the law to include private schools, preschools, and day-care centers, and thus block the Berkeley Patients Group’s planned move. Bates did not say what he intends to do, and Councilman Darryl Moore, who represents the West Berkeley area in question and has been dealing with the issue, did not return a phone call seeking comment.

In addition to the private school’s concerns, several local businesses that have been attempting to revitalize West Berkeley and transform it into a green-tech corridor also are upset about what’s happening. “We are not opposed to medical marijuana, but we strongly oppose that use for that site,” said Chris Barlow, a partner at Wareham Development, which owns the Aquatic Park business center across the street from the old Scharffen Berger building and has been successful at attracting green-tech and life-sciences companies in recent years. “It’s just a totally inappropriate use for that location.”

But if the council fails to change the law, then there may be little to stop the pot club. The reason is a 2008 ballot initiative approved by 63 percent of Berkeley voters. Measure JJ essentially granted the city’s three pot clubs, including the Berkeley Patients Group, the right to move anywhere in the city without having to go through the normal permitting process. The only restriction was that it prohibited pot clubs from being in sections of the city where retail also is banned, such as residential areas.

The Berkeley Patients Group must go through a hearing process with the city’s Medical Cannabis Commission on January 28, but that is expected to be perfunctory, because the club has the reputation for being well run. Club spokesman Brad Senesac said the Berkeley Patients Groups wants to move because it needs more space. The old Scharffen Berger building is much larger than the club’s current location on San Pablo Avenue near Grayson Street. The club also plans to grow marijuana at the new facility. Senesac also said the club’s owners are “confident” that they will “be able to address the concerns” of the nearby schools and businesses.

Berkeley City Attorney Zach Cowan indicated in an interview that there may be no way to stop the Berkeley Patients Group’s plans because the 2004 ordinance only mentions public schools and because retail was not prohibited at the old Scharffen Berger building. However, Cowan also noted that because the ban on pot clubs being within 1,000 feet of public schools was made by the council — and was not included in Measure JJ — then the council has the power to change the law to include private schools, preschools, and day-care centers.

In the meantime, both the French school and Wareham Development have been talking to attorneys about the issue. Barlow indicated that Wareham Development plans to file suit unless the council changes its ordinance and blocks the club’s planned move. Wareham and the French school also believe that the Berkeley Patients Group’s proposal violates city zoning regulations, too. They note that zoning for the old Scharffen Berger building only allows retail as an “ancillary” activity, while the patient group apparently plans to make medical marijuana sales its primary form of business.

Barlow also noted that state law prohibits the smoking of medical cannabis within 1,000 feet of any school — public or private — and that it may be impossible for the patients group to abide by that law. Although the club will not allow pot smoking inside the building because of the city’s indoor-smoking ban, it may not be able to stop clients from toking up once they leave the premises.

Berkeley Planning Director Dan Marks said that his staff has been working with the patients group to make sure that its clients won’t run afoul of state law. And club spokesman Senesac noted that the patients group already has tough rules for its patrons that include a club ban for violating regulations.

Regardless, the clearest solution would be for the council to immediately change the law before the club makes its move. There are plenty of other empty buildings in Berkeley, and the council doesn’t have to go as far as the Los Angeles City Council did last week when it banned pot clubs from being near churches and parks. But it makes sense to include private schools, preschools, and day-care centers. After all, the law shouldn’t protect some kids over others just because their parents chose a particular school.

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