Berkeley officials contend that Forty Acres operatied an illegal cannabis operation on the top floor of this building at 1820-1828 San Pablo Avenue. Photo: Google Street View
The Zoning Adjustments Board ruled Nov. 6 that Forty Acres, at 1820-1828 San Pablo Ave., is a public nuisance. Photo: Google Street View

Berkeley’s Zoning Adjustments Board voted unanimously Nov. 6 to declare the Forty Acres Medical Marijuana Growers’ Collective a public nuisance – the latest step in Berkeley’s three-year odyssey to shut the place down.

ZAB officials listened to two and a half hours of testimony at the hearing, including impassioned pleas from neighbors who said the area near 1820-1828 San Pablo Ave., right above The Albatross pub, had become a no-go zone.

The smell of marijuana in the area is so strong that numerous families don’t let their children play outside, according to testimony of several neighbors. Cars routinely block driveways – and the drivers become aggressive when asked to move. Groups of people openly smoke cannabis on the sidewalks. Sometimes the partying goes on until the wee hours of the morning. Those that can’t make it home sometimes sleep in door-wells or on the sidewalk, according to neighbors.

“It’s become a party zone,” Carol Denney, who lives near University and San Pablo Avenue, told ZAB commissioners. “You will see people dancing on top of their cars. They will be openly dealing.”

ZAB will take a final look at the findings from the hearing tonight and will forward its recommendations to the City Council, which is scheduled to hear the matter in December.

Chris Smith, co-founder of the Forty Acres Medical Marijuana Collective. Photo: Frances Dinkelspiel
Chris Smith, co-founder of the Forty Acres medical marijuana collective. Photo: Frances Dinkelspiel

Chris Smith, the founder and executive director of Forty Acres, and his attorneys, had long been pushing for a hearing before ZAB. Berkeley had sent Forty Acres a cease-and-desist order in Dec. 2011. Smith had appealed the decision, and the ruling finally went before a hearing judge in June 2014. But Berkeley dismissed the judge after three days of testimony after he made statements that were derogatory and racist.

Berkeley then agreed to have ZAB determine whether Forty Acres was a public nuisance.

Even though Smith got a hearing before ZAB, he and his attorneys did not get exactly what they wanted. They wanted the opportunity to cross-examine witnesses. They also wanted to eliminate evidence that they thought was “illegally seized.” They were thwarted on both counts. ZAB commissioners decided that since they had never allowed any other party those rights, they would not allow them for Smith.

At issue was a surprise inspection Berkeley conducted at Forty Acres on Oct. 9, 2013. Greg Daniel, a code enforcement supervisor, and others, entered the premises unannounced.

Through the evidence collected during that search, Berkeley concluded that Smith was illegally operating an unpermitted cannabis dispensary on the site and ordered it to shut down. Daniel stated that he saw cannabis paraphernalia, smelled cannabis, and saw security guards asking for customer IDs and doctors’ evaluations – all signs of a cannabis operation.

Berkeley law only allows three dispensaries to operate in the city, although a fourth should be allowed soon. A dispensary is a large commercial operation with numerous customers, it sells medical cannabis, pipes, bongs, Vaporizers, and cannabis plants and often offers health services to its patients.

Since Forty Acres is not one of Berkeley’s three permitted dispensaries, it is defined as a cannabis collective. Berkeley law requires that collectives only operate in residential areas – and be incidental to that residential use.

Forty Acres is operating in an area zoned for commercial use, and therefore it is operating illegally, according to Berkeley officials. Moreover, it is so large – it had 7,000 clients at one point – that it is more like a dispensary than a collective.

In recent months, Smith has contended that he shut down Forty Acres and has created a new, smaller organization called the Chris Smith House of Compassion. It is a place for patients to get together and get medical cannabis and talk, he said. It is not a commercial operation, according to Smith.

Smith’s attorney called that surprise Oct. 2013 inspection – along with other attempts by the city to shut down Forty Acres — unconstitutional and in violation of due process. They said Berkeley was targeting Smith because he was African-American.

Berkeley officials clearly did not want to argue this point, either at the ZAB hearing or in any of the lawsuits Smith has filed against the city. So Berkeley re-investigated Forty Acres, and presented new evidence at the ZAB hearing, making moot Smith’s motion to toss out the evidence collected in Oct 2013.

Two Berkeley police officers testified at the ZAB hearing and their presentations supported the city’s contention that Forty Acres was still operating and was a large cannabis organization. Officer Rodrigues reported that on multiple nights this fall, she saw between 20-30 people going in and out of 1820-1828 San Pablo Ave. over an hour-long period. They flashed IDs to the security guard before entering. A confidential informant also purchased medical cannabis using Berkeley Police Department funds, said Rodrigues.

Another police officer responded to a 911 call on March 23, 2014 at 11:30 p.m. When Officer Castlebaum investigated, he went to the top of the stairs leading into the building and saw people consuming cannabis on site, he told the ZAB commissioners. He also smelled marijuana.

Testifying at Nov. 2014 ZAB hearing on Forty Acres
Toya Groves and Chris Smith testifying at Nov. 6,  2014 ZAB hearing on Forty Acres. Video still: City of Berkeley
Toya Groves and Chris Smith testifying at Nov. 6,  2014 ZAB hearing on Forty Acres. Video still: City of Berkeley

Smith and Toya Groves, a co-founder of Forty Acres who now serves as secretary of the board of the organization, argued that Forty Acres was in business before Berkeley passed Measure T in 2010, which set out new regulations for dispensaries and collectives. The two argued Berkeley should grandfather in Forty Acres, and give it “legal, non-conforming” status.

“I ask you to look at zoning laws with an eye to keep us here, not with an eye to kick us out,” said Groves.

But Berkeley planning staff disagreed with that assessment, and, in the end, so did the ZAB board. To be grandfathered in, Forty Acres would have had to be operating in a legal, if non-conforming way. The only way to do that was to have sought permission under the zoning code. But Berkeley zoning law has no provision for cannabis collectives, only for dispensaries, according to a staff report, so there was no way for Forty Acres to be legal.

“Collectives and other non-dispensary medical cannabis uses cannot be considered legal, non-conforming uses under the Zoning Ordinance regardless of when they were established,” states the staff report. “Since there is no recognized non-conforming status in the BMC (including Chapter 12.26) except as defined in the Zoning Ordinance, a collective could never achieve a legal non-conforming status. The City communicated this to Mr. Smith when it denied his two business license applications in March, 2012.”

The ZAB commissioners voted that Forty Acres was in violation of both the Berkeley Municipal Code and Zoning Code. It also declared it a public nuisance and ordered it to stop operating and shut down. ZAB also found that the 11 units on the second floor of 1820-1828 San Pablo Ave. were illegal.

Official who made insensitive racial remarks dismissed (06.20.14)
Berkeley City Council: Let’s add 4th cannabis dispensary
Berkeley still battling cannabis collective (06.12.14)
Berkeley orders Forty Acres to stop cannabis operations (10.29.13)
Berkeley forcibly enters Forty Acres Cannabis Collective (10.09.13)
Cannabis collective 3PG closes its Berkeley operation (11.29.12)
Court orders eviction of Forty Acres cannabis collective (11.09.12)
Berkeley moves to shut down cannabis operation (09.26.12)
Berkeley orders two cannabis collectives to shut down (02.22.12)
Rapid growth of cannabis collective raises concerns (11.29.11)

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman...