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Wednesday, April 13, 2011

City Council to Hear Dual Appeals by Firm Seeking to Overturn Approved Pot Permit

• Appellant Alleges Staff Misled and Prejudiced Application

BY BILL KOENEKER

The Malibu City Council is scheduled to hear two appeals filed by the same appellant over a permit for a medical marijuana dispensary on Monday, May 9.
An applicant who was denied a municipal permit for a medical marijuana dispensary at a planning commission meeting on March 1 has appealed the planning panel’s decision and, at the same time, the applicant, Twin Lyons Wellness Center, has appealed the planning commission’s decision granting a permit to Malibu Collective Caregivers, a competing applicant.
Twin Lyons wants the city council to rehear both of the original applications at the same meeting.
The appellant, in correspondence to the city, indicated the grounds for the appeal are, “The city, the planning commission and the city attorney denied [the] appellants due process by unfairly misleading them as to the procedure to be used in hearing and deciding on the applications, thus prejudicing them in their strategic choices. The city appears to have evinced impermissible bias in the handling of these hearings. The planning commission’s findings are not supported by the evidence, or is its decisions supported by the findings.”
The two applicants are vying for one permit of two allowed citywide. The other permit was granted to PCH Collective.
The city’s ordinance only allows two operating pot pharmacies in the city.
Twin Lyons has insisted the city should grant the permit to the facility that is considered the best operation and fit for the municipality, rather than on a first-come, first-served basis.
“The appellant was led to believe that such a comparative consideration was within the power of the planning commission and had been employed in recent cases,” wrote Twin Lyons attorney James Anthony, in an appeal letter to the city. “The appellant was thus clearly led to believe that both applications would be heard and then one would be chosen.”
However, Assistant City Attorney Greg Kovacevich had instructed commissioners, “You can’t approve both.”
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 conducted a full public hearing on the Twin Lyons application after 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 which they did on March 1. The commission without discussion formally denied the permit.
“The planning commission’s findings are not supported by the evidence; nor is its decision supported by its findings. Therefore, the city council should rehear 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,” added Anthony.

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