Alex Turney/Staff

Christopher Smith, co-founder of 40 Acres Medical Marijuana Growers’ Collective, filed a lawsuit Sept. 24 against the city of Berkeley and some of its departments, alleging the city discriminated against the collective.

The lawsuit, filed at Alameda County Superior Court, alleges the city of Berkeley, the city’s Medical Cannabis Commission and a number of other departments and officials denied Smith the permits needed to ensure 40 Acres’ continued legality without due process.

The lawsuit also alleges the defendants violated the equal protection clause of the 14th Amendment to the U.S. Constitution by discriminating against Smith in favor of medical marijuana organizations run by white people.

“We think the lawsuit lacks merit and will defend against it,” said City Attorney Zach Cowan in an email. Cowan declined to comment further due to the pending litigation.

Although 40 Acres was established as a legal collective in 2009, Measure T, which was passed by voters in 2010, set new guidelines for marijuana dispensaries and collectives. Under Measure T, collectives are prohibited from functioning in commercial or manufacturing districts, unlike dispensaries, and are allowed only in residential areas.

Smith originally operated his business in a commercial district at 1820 to 1828 San Pablo Ave. As of January 2012, 40 Acres had closed and moved out of the location, although Smith still resides there. According to the lawsuit, Smith was not aware his work was illegal under the city’s zoning ordinance.

On Tuesday, Berkeley city inspectors and police officers conducted a surprise visit to the building for a code enforcement inspection.

The property had previously been inspected in early September. At the time, Smith did not allow Berkeley Code Enforcement Unit supervisor Gregory Daniel to inspect Units 1 through 3 and 11, which he rents. Supervising building inspector Patrick Emmons, however, found a number of safety violations in Units 4 through 10, which prompted the second inspection this week.

Lee Hepner, Smith’s attorney, said he believes the inspection was a violation of state and local laws, perhaps even the Fourth Amendment against unreasonable search and seizure.

According to a search warrant, Cowan received permission from Alameda County Superior Court to forgo the usual 24-hour notice inspectors are usually required to issue. The court also allowed inspectors to enter by force, if necessary.

Smith’s attorneys noted that 40 Acres would like to become a dispensary, but the Berkeley Medical Cannabis Ordinance limits the city to three dispensaries. A fourth dispensary will be allowed once Berkeley adopts a licensing ordinance.

City spokesperson Matthai Chakko said there are a number of reasons the city has not adopted a licensing ordinance yet.

“City Council processes in general can take a while, and sometimes it’s just a matter of time,” Chakko said.

Contact Tahmina Achekzai at tachekzai@dailycal.org.

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Nathaniel Solley/Staff

In an effort to improve access to key business districts, the city of Berkeley will implement changes to its parking policies Tuesday.

The changes include varying meter rates based on the demand for parking in particular areas and raising time limits for street spots. The city seeks to address frustration over congestion and businesses’ concerns that customers don’t have enough time to shop.

Parking meters Downtown, in the Telegraph area and in the Elmwood district will use a demand-based pricing model, said Matthai Chakko, a spokesperson for the city.

“By increasing the price in the high-demand areas and then lowering (it) in places where parking is more ample, you hope to encourage people to be parking in different places and to not have as much congestion in one spot,” Chakko said.

Parking in popular areas near shopping destinations on Southside and Downtown will cost $2.25 per hour, while parking in less frequently used areas will cost $1.25 per hour, said Matt Nichols, principal transportation planner for the city.

Current parking rates across the city are $1.75 per hour Downtown and $1.50 per hour elsewhere, according to Nichols.

Elizabeth Deakin, a UC Berkeley professor of city and regional planning and urban design who appeared before the City Council as long ago as 2006 to discuss demand-based pricing, emphasized the importance of promulgating information about the new prices and time limits. It could take several months for shoppers and visitors to adjust to the new system, she said.

“If it works well, it will be a little easier to find a parking space if you really want one and you’re willing to pay a little more,” Deakin said.

In the Elmwood district, near College and Ashby, one-hour street-parking limits will increase to three hours, with an increasing hourly rate.

That came as a relief to Melissa Hatheway, the director of marketing and communications for Rialto Cinemas, which operates a theater in Elmwood. Patrons often struggled to find sufficient parking for two- or two-and-a-half-hour films, she said.

“We’re delighted,” Hatheway said. “We’re hoping this parking solution takes off a layer of anxiety and stress from everybody so they (can) come and spend money.”

UC Berkeley senior Max Jason said he would pay more for parking if it resulted in longer time limits and better availability.

“When I’m going and driving around the city, it’s been pretty difficult (to find parking),” he said.

The new rates are the latest in a series of projects in a three-year transportation pilot program funded by federal and regional grants called goBerkeley, Chakko said.

Nichols said it is unclear how the program will affect city parking revenue, but officials will present a detailed revenue report to the City Council in March.

Contact Connor Grubaugh at cgrubaugh@dailycal.org.

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At its meeting Tuesday night, the council discussed a proposed smoking ban and referred it back to city staff to enhance the effectiveness of enforcement policies. The policies would have added nonsmoking clauses to leases and allowed residents to file claims against their neighbors for violating the ban on smoking.

Multiple-unit housing refers to all buildings with more than one living unit, such as apartments, fraternities and nursing homes. The ordinance aims to protect residents from involuntary exposure to secondhand smoking.

After much discussion, the council decided the new regulations ought to be enforced by a procedure similar to that used for a barking-dogs ordinance, which requires two neighbors to file complaints and subjects violators to a possible infraction citation, according to city spokesperson Matthai Chakko.

But Councilmember Jesse Arreguin, the only one to vote against the motion, is worried that the changes might result in smokers being unfairly evicted from their homes. For him, the current recommendations were already a good compromise between the housing security of smokers and the well-being of their neighbors.

“My main concern is we’ve really tried to craft a law that discouraged evictions, and now the council’s actively talking about encouraging evictions,” Arreguin said. “The direction the council moved in is a step backwards.”

Councilmember Laurie Capitelli, however, thought protecting public health should take priority over protecting tenants from eviction.

“If I repeatedly smoke in my unit, and I am damaging the health of the people around me, I deserve to be evicted,” Capitelli said at the meeting.

These recommendations follow a previous City Council meeting held in May. According to Arreguin, a smoking ban has been in development for six years.

Liz Williams, project manager for the nonprofit Americans for Nonsmokers’ Rights, agrees with the council’s decision to draft new regulations. At the meeting, she noted the need for more enforcement from a city agency.

“Our organization cannot support the ordinance as it is currently written due to the lack of city enforcement,” she said during public comment. “The primary enforcement mechanism in the ordinance puts the burden entirely on a nonsmoking neighbor.”

The amended ordinance requires that landlords notify tenants of its terms in January, according to Chakko. The new regulations themselves will be unknown until council members receive another draft from the city’s Health and Community Services Department staff, he said.

“We’re cautiously optimistic that the result will be an enforceable ordinance that protects the health of Berkeley residents in multi-unit housing,” Williams said. “Nobody wants their family to get sick from a neighbor’s drifting smoke.”

Contact Melissa Wen at mwen@dailycal.org.

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Anthony Bongco/Staff

After receiving reports of water polo players experiencing itchiness and discomfort after practice, the city of Berkeley temporarily closed Berkeley High School’s pool on Sept. 25 after tests showed chemical imbalances in the pool.

The school’s pool had a pH level of 8.4, whereas a healthy level must be between 7.2 and 8.0, according to a city inspection report. Currently, the school is testing the pool’s chemical levels three times daily, and the city will reopen the pool once it is deemed safe.

According to William Gaebler, the Berkeley High School water polo coach, chlorine levels were low, and the concentration of chloramine — the chemical that causes eye and skin irritation — was 10 times higher than the limit. A defective carbon dioxide tank, which lowers the pH level in the pool, caused the high pH level, he said.

“If those statements are true, it does raise concern,” said Tracy Hollander, president of the Berkeley PTA Council. “It speaks to student safety. We need to help ensure that students are safe, whether they are walking down a hall or in a pool.”

The school has ordered a $7,000 replacement carbon dioxide tank for the pool, which is expected to arrive within the week, according to Mark Coplan, a Berkeley Unified School District spokesperson.

As of now, the school is working to decrease the chloramine level in the pool and is using a liquid buffer to restore the pH to a healthy level. According to Gaebler, the buffer has already lowered the pH level to 7.5.

“It is not uncommon to have a pool closed,” said city spokesperson Matthai Chakko. He referenced multiple factors, ranging from unbalanced chemical levels to a gate locking improperly, as appropriate reasons for closing one of the nearly 30 pools over which the city’s division of environmental health presides.

As a long-term solution, the school will begin contracting an outside company to test the pool’s chemical level monthly instead of annually in addition to conducting the school’s regular checkups, which usually occur two to three times daily during the sports season, Coplan said.

Additionally, Gaebler said in an email that he will check the pool’s levels at night, and Berkeley High School’s facilities manager will check them in the morning “so a second set of eyes might catch and contain situations as they begin rather than after they have escalated.”

Since 2004, the pool has been closed only twice. Two years ago, the pool was tested, closed for a high pH level and reopened a few days later after a similar complaint, Coplan said.

Hollinger said the PTA may discuss the recent pool closure with regard to its districtwide implications at the Oct. 28 PTA meeting.

Contact Michelaina Johnson at mjohnson@dailycal.org.

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Taylor A. Vega/Staff

Following years of frustration with the city’s operation of their commercial space, business owners of the Telegraph Channing Mall finally demanded action from Berkeley City Council after they were hit with an unexpected tax.

Nestled between Durant Avenue and Channing Way, the mall is home to a dozen stores including Cheese ‘n’ Stuff, Joy’s Sportswear and Revolution Books. The shops are located in an alleyway just beneath the Telegraph Channing Parking Garage.

Without notice, business owners were assessed a possessory interest tax over the summer, which gave the merchants about a month to make a per-square footage payment to the city of Berkeley. Merchants such as Sam Juha, who has owned Cheese ‘n’ Stuff for 27 years, have never before paid this property tax to the city but have annually paid a similar tax to Alameda County.

Although the merchants had agreed to the tax in their leases, it was never previously assessed. The city’s decision to collect the tax spurred the business owners to gather at the Sept. 17 City Council meeting to demand immediate financial relief.

Charles Lee, who owns Michelle’s Yogurt and Sweets, explained to council members that the tax adds further economic burdens to his business. He said that businesses in the Telegraph Channing Mall were subject to a 4 percent annual rent increase that he deemed unfair when juxtaposed with only a 1 to 2 percent rate of inflation.

Lee said that he pays $3.40 in rent per square foot, while the vacant space adjacent to his was previously rented for less than half that figure. Kirstie Bennett, an owner of The Framer’s Workshop, said that the city’s decision to collect the possessory interest tax cost her more than $3,000.

“This particular problem of communication is really new,” Bennett said. “The problems in the mall are not.”

Without a designated property manager from the city, renovations and improvements to the mall come at a slow pace, according to Juha. In a report filed by Deputy City Manager William Rogers, the mall’s management was impacted by the resignation of a city employee within the Real Property Management unit. For now, the city is searching for a leasing and management agent for the mall, according to city spokesperson Matthai Chakko. It is considering contracting the management of the mall to a private entity.

Juha and Lee pointed to poor lighting, paint and signs in the alley that could be easily remedied with the help of a city official acting as the unit’s manager. Councilmember Kriss Worthington, whose district contains the mall, called the current management situation “chaotic.”

Worthington said that, at the request of Mayor Tom Bates, the mall’s business owners and Rogers will meet on Oct. 8 to smooth over these issues.

Contact Kimberly Veklerov at kveklerov@dailycal.org.

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