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Wareham Development has threatened to sue the City of Berkeley if it allows a cannabis clinic to move into the old Scharffen Berger building in West Berkeley.  

When a flurry of e-mails from Wareham and Ecole Bilingue—a non-profit French American school which serves 500 children, from preschool to eighth grade, about a block away from the proposed site—descended upon the Berkeley City Council last week, complaining about the detrimental effect of the proposed project on their businesses, the council decided to discuss the issue at a special closed-session meeting Tuesday.  

Harry Pollack, the attorney representing Berkeley Patients Group, which proposes to move into the space, told the council during public comment that his client would like more time to present its case to the city. 

The council decided to discuss the matter in closed session at 5:30 p.m., Feb. 1. 

Both Wareham and Ecole Bilingue allege that the project would violate various state and federal laws if it moved forward.  

Although a Berkeley city ordinance—Measure JJ, passed by Berkeley voters in 2008—prohibits medical marijuana dispensaries within 1,000 feet of a public school, it does not apply to private schools or preschools.  

Aquatic Park Preschool is also located close to the project site.  

“We believe that this must simply have been an oversight by the authors of the law,” said Jennifer Monahan, a spokesperson for Ecole Bilingue. “We can’t imagine any other reason why the authors would draft an ordinance that protects some children but not others—especially since it is at odds with both state and federal law, which protects all schools, public and private.”  

But Berkeley City Attorney Zach Cowan said he wouldn’t “assume it’s an oversight.” 

“I can’t say what was on the mind of someone years ago,” Cowan said. “It’s an irrational decision, but you have to draw the line somewhere. They were trying not to prohibit dispensaries and so they had to draw the line somewhere.” 

Monahan said she hoped the council would sort out the omission of private schools and preschools over the next few days.  

Lynn Van Housen, chair of Ecole Bilingue’s Board of Trustees, wrote in a letter to the City Council that there is evidence to suggest that most voters overlooked the discrepancy in protection offered to public schools versus other schools.  

Van Housen said that nothing summarizing Measure JJ on the ballot or arguing in favor of it indicated that it would “technically allow medical marijuana dispensaries to operate next to private schools and day-care centers.”  

“In other words, it was never brought to the attention of Berkeley voters that medical marijuana dispensaries had to be located 1,000 feet from some schools but not others,” Van Housen said. “The only way to learn about the discrepancy between public and private schools in this measure is to read the full 10-page text of the ballot measure—something which, even in a city with a strong tradition of voter involvement, relatively few people take the time to do.”  

Van Housen indicated that the school might be forced to take legal action if the relocation took place.  

When Ecole Bilingue’s business manager, Antoine Portales, asked city Planning Director Dan Marks in an e-mail why a cannabis clinic was being allowed in a mixed-use light industrial district where medical practitioners and retail businesses are not normally allowed to operate, Marks responded that Berkeley citizens had adopted an initiative that “allows such dispensaries to be located anywhere in the City of Berkeley where retail uses are not prohibited.”  

“While retail uses are not generally allowed in the zoning district in which the proposed dispensary is to be located, they are also not prohibited,” Marks wrote, adding that the same initiative allowed the use “by right,” eliminating the need for a use permit or public hearing.  

In a Jan. 19 letter to the Berkeley city attorney, Wareham attorney Anne Shimko warned that the proposed clinic would “impede ongoing efforts to attract new development in the area.”  

Shimko informed Cowan that the City Council had the authority to amend the language in Measure JJ to prohibit medical marijuana clinics near private schools and day-care centers.  

Calls and e-mails to Wareham for comment were not returned. 

Debbie Doldsberry, a spokesperson for Berkeley Patients Group, which has operated out of 2747 San Pablo Ave. for the last decade, said the idea of relocating a few blocks down to the former chocolate factory was still in the pipeline.  

“That’s one of the relocation sites we have considered in Berkeley,” Doldsberry said, declining to go into specifics. “We are flushing out the complaints. We want to do a lot of listening and find out what the concerns are. We have not completed our application to the city yet. The process is still developing.”  

Doldsberry pointed to the clinic’s impeccable record and the fact that it was hailed by the Berkeley City Council as a “national model” for developing best practices in dispensing medical marijuana, including the sale of mold- and pesticide-free pot, its charitable work in the community and being strong advocates for medical marijuana.  

More than 8,500 Bay Area residents are members of the clinic.  

The City Council even named Oct. 31 as Berkeley Patients Group Day to celebrate its 10th anniversary last year.  

“Once we look at everyone’s concerns and match that with our history, I think we’ll have a win-win situation,” Doldsberry said.  

Monahan pointed out that, while the school wasn’t opposed to medical marijuana per se, it was reasonable to expect that all children have the same protection under the law.  

“The issue is more about parity,” she said. “There’s a loophole, and we are caught in the middle of it.”