Under the threat of multiple lawsuits, the Arcata City Council decided last night to table its discussion of a Medical Marijuana Innovation Zone.

The council had previously brought forward an ordinance adopting the zoning change for the former Humboldt Flakeboard Mill on West End Road (“Area A”), which would allow medical marijuana cultivation, processing, manufacturing and warehousing at businesses on the site. At a neighborhood meeting last week, council members heard from nearby property owners and seemed poised to expand the zoning to include an “Area C” farther north at last night’s meeting.


But on Tuesday the city received letters from two attorneys, representing property owners in the West End area, threatening litigation. The city continued the hearing of its MMIZ ordinance.

In a letter to the council, attorney Bryan Gaynor suggested that the city council had violated the Brown Act by not noticing the public that the zone change would be approved based on a California Environmental Quality Act exemption. He suggested the council should reintroduce the ordinance, and that the planning commission should review all properties that want inclusion in the zone.

Attorney Thomas Herman, representing West End Industrial Park property owners Bettendorf Enterprises, Inc., Desserts on IJs, Inc., O&M Industries, Inc., Northwest Forestry and Marine, Inc., TOMAC,LLC, and Ray Wolfe Construction, Inc., also wrote to say that the city’s selection of properties for the zoning ordinance is unjust.

“You have an obligation when adopting a zoning ordinance to be fair and impartial,” Herman wrote. “Your decisions cannot be arbitrary, discriminatory or unreasonable and must bear a reasonable relationship to the public welfare.”

He went on to claim that the city did not properly notify nearby property owners that the city was considering the ordinance. “As you have heard many times, most of the landowners in the West End Road Industrial Park were unaware that this zoning proposal was being considered by the Planning Commission.,” Herman wrote. According to Herman’s letter, Community Development Director Larry Oetker told the planning commission in September that the city had notified the owners of property within 300 feet of parcels being considered for MMIZ inclusion by mail of the city’s interest. But, Herman claims, his clients, some of whom have property within the 300 foot range, never received letters. (It should be noted that the city council has now met five times, and the planning commission three times, to discuss the idea of a medical marijuana innovation zone.)

This gave an advantage to property owners in Area C, Herman argued, because they were able to rally support for their area, gaining a planning commission review that ultimately influenced the council to support adopting the area without seriously considering other parts of the West End Road Industrial Park.

“It is plainly obvious from the records before the commission and before your council that the expansion of the zone to include Area C resulted from requests for inclusion by mostly tenants or prospective tenants. The wishes of tenants and prospective tenants are not appropriate criteria for selection,” Herman wrote.

In fact, he said, some of his clients had properties that were just as “ready” as those who voiced support for Area C at last week’s meeting. In his parting salvo, Herman requested the city return the process to the planning commission for further vetting of areas in the industrial park before selecting a zone.

“You should not treat long term Arcata business owners unfairly,” Herman wrote. “It may drive them out of your city. Do you really want to alienate people like Emran Essa, the owner of Desserts on Us, Inc., who according to Larry Oetker represents the paradigm business Arcata wants to attract?”

The council continued its hearing on the ordinance until its Nov. 18 meeting.