BISBEE — An appeal granted last month by the Cochise County Board of Supervisors to the owners of Apple Annie’s, which stopped a marijuana cultivation and production operation from proceeding, has resulted in a lawsuit brought against the county, Supervisors Peggy Judd and Tom Crosby and Apple Annie’s.

In the March meeting of the county Planning and Zoning Commission, property owner Kim Bennett and applicant Hannah Bleam of Willcox OC LLC, were granted a special use authorization to allow construction of a medical marijuana cultivation and infusion facility on a 318.31-acre parcel at 9910 N. Fort Grant Road. The plan called for 63 acres for an outdoor grow operation.

Bennett said the company was going to use new technology to control the odor of the indoor grow facility and would try to control the odor of the outdoor grow operation as well.

Willcox OC is located across the street from Apple Annie’s You Pick Pumpkin Patch and vegetable garden and The Pharm’s medical marijuana indoor and outdoor grow and processing facility, which was approved a few years ago.

It was not a unanimous decision as five commissioners voted in favor of the SUA and two voted against it.

In the April 20 meeting of the Board of Supervisors, John Holcomb, owner of Apple Annie’s, appealed the commissioners’ decision on the grounds the SUA would increase the “skunk” odor coming from The Pharm operation. He claimed his workers and customers experienced headaches from the odor.

The Pharm’s Timothy La Sota filed an appeal with the Supervisors against the same SUA approval voicing concerns of cross pollination and the possible spreading of disease.

Supervisors Ann English and Tom Crosby denied the Pharm’s appeal, but Crosby and Peggy Judd voted in favor of the Holcomb appeal due to the odor nuisance.

English said she did not understand why one appeal would be denied and the other approved since planning staff added conditions on odor control to the SUA that the permit could be revoked by the county.

Their decision has led to the lawsuit by Bennett, whose attorney, Paul Conant, stated in the filing the company “fully complied with all existing laws and regulations” and obtained staff and the commissioners’ support.

“If the Board of Supervisors wanted to make new zoning laws in Cochise County concerning state–legal cannabis industry, it could pursue such an initiative through a proper lawmaking process in the future, but it was not proper for it to attempt to do so retroactively by granting an unfounded appeal of the properly approved SUA of this applicant,” Conant stated.

He pointed out in the filing Holcomb provided no evidence at either meeting to substantiate the claim odor was causing headaches and the Supervisors failed to take into account the effort the company was willing to take to reduce any odor coming from the facility, actions “which are not required in the zoning code.”

Conant asserts Judd and Crosby “acted arbitrarily, capriciously, erroneously and contrary to law” and did not provide appropriate and lawful reasons to approve Holcomb’s appeal.

“It is not a proper basis for the Board to have approved the Apple Annie’s appeal in order to attempt to change the law in the county by such a vote,” Conant stated. “The plaintiffs ask the Superior Court to ‘invalidate and annul’ the Supervisors’ decision. They do not ask for any monetary judgement.”

The Supervisors have an executive session scheduled for May 26 in which they will discuss the lawsuit.