Legality of county-approved pot clubs in question

A Sonoma County Superior Court judge's ruling last week invalidating the county's medical marijuana club use permit ordinance has provoked a showdown over a controversial club in the center of Guerneville.

The dispute also raises questions about the legality of the only other only other pot dispensary outside city limits, which is south of Santa Rosa, and two proposed dispensaries.

Operators of Marvin's Gardens Cooperative say the ruling by Presiding Judge Robert Boyd allows them to stay open and directs county zoning code enforcement officers to back off.

"We reopened last week and we are allowed to stay open," said the cooperative's office manager Terri Worden.

But county officials disagree and they showed up at the medical marijuana dispensary Monday morning with a cease-and-desist order.

"When the judge invalidated the ordinance, that means dispensaries are no longer mentioned in our zoning ordinances," said Pete Parkinson, director of the Permit Resource and Management Department. "And, if they aren't mentioned, they aren't allowed and they will be subject to code enforcement."

Zoning officials are to brief the county board of supervisors on the dispute today.

"We want to avoid a rush of folks operating under the mis-impression that they can legally open a dispensary wherever they want," Parkinson said Monday.

The dispute that ended up in court stems from a two-year effort by Marvin's Gardens to obtain a use permit for a new location in Guerneville following loss of its lease in Rio Nido. The club, which says it provides marijuana to about 900 clients with doctor-approved prescriptions, has been in operation for a decade and is believed to be the county's oldest medicinal marijuana club.

In January 2007, Sonoma County supervisors decided that medical marijuana dispensaries could apply for use permits but only in commercial areas of Guerneville, Forestville, Boyes Hot Springs, outside Santa Rosa City limits in Roseland and along south Santa Rosa Avenue.

Marvin's Gardens was "grandfathered" into compliance at its location on River Road in Rio Nido, but about two years ago applied for a use permit at office space on Armstrong Woods Road at Guerneville's Main Street. Worden said that, at a time when Organicann on Todd Road was allowed to remain open while changing locations and pursuing a permit, Marvin's Gardens opened on Oct. 2 in Guerneville.

County zoning enforcement officers quickly issued a "stop notice" on the business, which prompted attorneys for Marvin's Gardens to respond by filing a request for a temporary restraining order. On Nov. 4, Judge Boyd issued an opinion siding with the county, but on Dec. 7, the judge reversed course and declared the entire ordinance invalid.

Boyd ruled that the county failed to demonstrate that "there is a rational governmental interest supporting the imposition of the special permit required." He also wrote that the county did not demonstrate that any "health and safety issues" were involved in the use permit requirement.

Worden said lawyers for Marvin's Gardens interpret the decision as great news for the cooperative's effort to serve its clients.

"They can't ask for a special use permit based on the probability that there might be problems," Worden said. "Everybody who is a patient has a right to their medication. They are making it too difficult to open a dispensary."

The county counsel's office, however, said Monday that the lack of use permit provisions in land-use codes means no medical marijuana club is legal. In addition to Organicann's Todd Road location, there are three other medical marijuana cooperatives licensed by local authorities, two in incorporated areas of Sebastopol and one in Santa Rosa.

Greg Dion, chief deputy county counsel, said zoning enforcement efforts would not be directed at Organicann while the legal dispute over the issue is being resolved. He said the county on Thursday would file a motion for reconsideration by Judge Boyd, a step that allows the county to submit additional documentation in the case before an appeal is filed.

"Obviously, we feel there is a health and public safety issue when it comes to where these dispensaries can be located," Dion said. "We are also not going to process any more applications."

Officials say there are at least two other cooperatives have submitted applications to open dispensaries in unincorporated areas. In 2007, county supervisors rejected a proposal by the Organic Cannabis Foundation, which operates Organicann, to locate in a small commercial strip in Boyes Hot Springs on the grounds that the building was too secluded.