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Wednesday, March 02, 2011

Denied Pot Applicant Appeals City Permit OK

BY BILL KOENEKER


An applicant who was denied a permit for a medical marijuana dispensary at a planning commission meeting two weeks ago after the Malibu planning panel approved a permit for a competing applicant has filed a formal appeal and wants the city council to rehear both applications.
“The planning commission procedure on this matter unfairly and unconstitutionally denied a competing application due process and fair play by changing the rules in the middle of the process. The decision appears to have been biased,” wrote James Anthony, an attorney for Twin Lyons Wellness Center, which was denied a permit after the commission approved a permit for the Malibu Collective Caregivers.
The city’s ordinance only allows two operating pot pharmacies in the city. Currently PCH Collective has the other permit.
At the beginning of the meeting, when the staff report was being presented to the commission, Planner Ha Ly amended her statements that were in the original staff report and said the city attorney’s office had determined that the permit would be granted on a first come first served basis.
Initially, she had told the applicants the situation was much like when the commission heard from two applicants who were vying for one permit for the farmers market at the same location.
“The appellant was lead to believe that such a comparative consideration was within the power of the planning commission and had been employed in recent cases,” added Anthony. “The appellant was thus clearly lead to believe that both applications would be heard and then one would be chosen.”
However, Assistant City Attorney Greg Kovacevich told the commissioners the farmers market hearings were very different than what was before the commission now.
He noted that there was only one more permit allowed for a marijuana dispensary, and that the applications were for two different locations. Unlike the farmers market, where there was no such limitation of only one or two permits allowed.
Kovacevich also said what was dissimilar is that the applicants for the farmers market both chose the same location, whereas the applicants for a dispensary were proposing two different locations.
“You can’t approve both,” the city attorney cautioned planning panelists.
Commissioners were informed by a spokesperson for Twin Lyons Wellness Center, the losing applicant, they would have proceeded very differently if they had the latest information.
“After months of describing the rules of the hearing in one way, the city then arbitrarily changed them after the hearing had started and closed and [Twin Lyons] had already given up (based on the old rules) what turned out to be the only chance to be meaningfully heard.
“This is the meanest kind of bait-and-switch, and it fundamentally deprived appellant of the very basic foundation of any kind of due process: fair notice as to what the process might even be,” the attorney noted in his appeal letter.
The panelists deliberated on the first application sought by Malibu Collective Caregivers, whose application was deemed complete a week before Twin Lyons,
The staff recommended the commission deny the second application if it approved the first one and the city attorney’s office opined the planning panel could not approve another permit.
The commission still conducted a full public hearing.
Kovacevich said the application could be withdrawn or the applicant could go forward or ask for a continuance of the item to see if the prior applicant gets appealed.
The commission opened a public hearing and after testimony and deliberations ultimately agreed to deny the permit and directed the staff to bring back a resolution denying the request for the operation of a medical marijuana dispensary.
The matter has been scheduled for the next hearing of the planning commission on March 1 when the resolution denying the permit can be formally voted on.
“But in this highly unusual situation, where the rules were changed in favor of one applicant over another at a strategic moment, some type of bias might explain a procedure that was clearly not in the best interests of the city or grounded in any basic notion of fair play,” the appeal letter goes on to state.
“The planning commission’s findings are not supported by the evidence; nor is its decision supported by its findings. Therefore, the city council should re-hear both applications, weigh all the evidence, and approve the application that best meets the requirements of the city’s medical marijuana dispensary ordinance, the city’s Conditional Use Permit requirements and the best interests of the city and of the public health, safety and welfare.”

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