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News: 03/01/2011

County sues medical marijuana dispensary

Sonoma County has gone to court against a medical marijuana dispensary at Sonoma Highway and Melita Rd., charging that they have been operating for months without a use permit.

The Valley of the Moon Collective did file for a use permit back in October, but the application has not yet gone through the planning process, and will probably be scheduled for a hearing in front of the county’s Board of Zoning Adjustments sometime in the spring.

The dispensary, which also offers other holistic health services, is located in the Valley of the Moon Plaza, a small shopping center at 5875 Sonoma Highway, in unincorporated Sonoma County. Other businesses in the center include a gas station and mini-market, frame shop, dry cleaners and martial arts studio.

The county filed suit in Sonoma County Superior Court on Feb. 5. On Feb. 15, according to Deputy County Counsel Debbie Latham, the county obtained a partial restraining order against the dispensary and the owners of the shopping center, directing the operation to close during the hours of children’s classes at the martial arts studio, pending the outcome of the use permit hearing.

As far back as September, county officials had notified the dispensary that it was operating in violation of county codes. According to the lawsuit, “Despite defendant operator being advised by County Code Enforcement personnel to cease operations and put a “Closed” sign on the property relating to the Valley of the Moon Collective, recent inspections have revealed that operations continue and an “Open” sign remains.”

Ever since the fall, the dispensary has been openly advertising on the Internet site, displaying a lengthy menu of different types of medical marijuana available. The site also has a number of comments from patrons who have recently gone to dispensary to purchase medical marijuana.

The county charges that the dispensary’s zoning code violations, “are also creating a continuing nuisance subject to injunction and abatement.” The county is seeking to shut down the operation until it obtains a use permit, and is asking the court to impose financial penalties.

Back in 2007, the Sonoma County Board of Supervisors passed a medical marijuana dispensary ordinance, which allows dispensaries in unincorporated areas of the county with a use permit, but under a number of conditions.

The regulations state, in part, that a dispensary cannot be located within 100 feet of a residential zoning district, and cannot be within 1,000 feet of any park, public school, or public or private establishment, “that caters to or provides services primarily to persons under 18 years of age.”

At the time the Valley of the Moon Collective moved in last year, some of the businesses in the area expressed concern about the possible negative impacts of the dispensary, and circulated petitions objecting to the operation. A petition in favor of the dispensary was circulated as well.

In a Feb. 3 letter to the dispensary operators, county planner Steve Padovan wrote that he will be, “recommending denial of the proposed dispensary.” Padovan wrote that he concluded that the Valley of the Moon Collective’s location does not meet the ordinance’s requirement concerning proximity to a residential home, or the requirement concerning distance away from a facility primarily serving youth – the martial arts studio.

As is common, Padovan offered the dispensary the option of withdrawing its application, but, according to Padovan, dispensary operators have indicated that they want to go forward with a hearing in front of the Board of Zoning Adjustments.

Scott Candell, an attorney for the Valley of the Moon Collective, said that he believes the dispensary should get its use permit approved, arguing that the martial arts studio primarily serves adults, thus there would be no violation under the ordinance.

Also, he argued, the ordinance outlines an exception regarding the 100 feet from a residential zoning district rule. The ordinance states that this requirement can be waived, “when the applicant can show an actual separation exists between the land uses or parcels such that no off site impacts could occur.”

Candell said that the dispensary qualifies for this exception because there is a large fence separating the shopping center property and the nearest residential parcel.

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