For the fourth time in less than five months Great Falls City Commissioners have voted to deny permitting to an adult-use recreational marijuana business within Great Falls city limits. The 4-1 decision comes despite the fact that Great Falls voters clearly voted in favor of a referendum to allow the sale, possession and use of recreational marijuana in Cascade County more than a year-and-a-half ago.
At a special meeting of the City Commission on Wednesday, commissioners voted 4-1 to deny the appeal of business owner Emma Albers and property owner Jesse Mitchell asking the commission to reconsider its refusal to process a Safety Inspection Certificate (SIC) for Montana Dispensary, a state licensed adult-use marijuana dispensary. Issuing a SIC is the first step in permitting a new business to operate withing Great Falls city limits, yet the Commission has refused to consider or to accept a filing fee for Montana Dispensary’s application. Commissioners Bob Kelly, Joe McKenny, Rick Tryon and Susan Wolff voted against Montana Dispensary’s appeal. Commissioner Eric Heinbauch was the lone dissenting vote.
“As a self-governing local government, the City is allowed to exercise any power not specifically prohibited and any limitation on its authority has to be express, not implied,” the City Attorney’s Office stated in its written response to the appeal. “It is the City’s legal position that the Legislature’s action to remove the express limitation on charter municipality authority from the I-190-enacted law means that there can be no “implied” restriction on the City’s authority to prohibit adult-use marijuana activities.”
During the 2020 general election voters within the eight House legislative districts within or adjacent to Great Falls voted by a 55% to 45% margin to approve I-190, a citizens’ initiative requiring the Montana Department of Revenue to license and regulate the cultivation, transportation, and sale of recreational marijuana to adults 21-years old and older. The implementation of I-190 was postponed for more than a year to allow local governments to adapt to the change in law, and to develop and adopt new zoning regulations for the legal sale and distribution of recreational marijuana.
Up to this point the City of Great Falls has yet to complete those mandated changes, relying instead upon a law passed by the Commission in 2010 prohibiting land use within city limits potentially in conflict with federal law.
“The specific purpose behind Ordinance 3054 was to prohibit medical marijuana activities within the City of Great Falls,” the Great Falls City Attorney’s Office said in explaining its recommendation. “Although the State of Montana has now legalized certain activities relating to adult-use marijuana, there have been no changes in terms of federal law continuing to prohibit marijuana-related activities.”
The U.S. federal government still classifies marijuana as a Schedule 1 controlled substance with no currently accepted medical use and a high potential for abuse. However, the U.S. Department of Justice (DOJ) under the Biden Administration is currently pursuing its authority to remove marijuana’s classification as a Schedule I drug.
Federal drug laws regarding recreational use of marijuana in the U.S. have been largely unenforced for the past several years, and the City of Great Falls is now embroiled in a civil lawsuit filed by Janelle and Dale Yatsko, the owners of Green Creek Dispensary, a cannabis grow and medical marijuana sales business that has operated on the outskirts of Great Falls for the past 14 years.
“It is not the city’s authority to determine if I am in violation of a federal law,” Emma Albers said in her request that the City reverse its stance on licensing an adult use marijuana business within Great Falls city limits. “That is left up to the executive branch of the Federal Government. The building in which Montana Dispensary would be occupying is zoned commercial and has met all the state requirements. With Cascade County voting in favor of Adult Marijuana Use and the City of Great Falls having no current regulations or zoning, this allows state approved Marijuana businesses to be established in the city limits.”
During Wednesday’s Special Work Session, City Attorney Jeff Hindoien noted that the City’s response to the Montana Dispensary application was in-line with its response to the Yatskos, and that “from the City’s standpoint an ordinance has been in place for over a decade now which prohibits land use in violation of federal law.”
Hindoien acknowledged that significant changes in Montana law and in federal policy have taken place in the past few years, but fell back upon passing the issue off to county elections for a vote next November.
“The overarching question of whether or not these commercial activities will be allowed in the City of Great Falls has now been sent by the Commission to the voters,” Hindoien said. “Parallel with that we were tasked with developing a framework to allow these activities … so that in the event the voters say ‘we don’t want to prohibit these activities in Great Falls’ that the Commission will have enacted a zoning framework to allow for these activities. That process is also now well along. The first reading and public hearing on that subject will be … next Tuesday (Aug. 16) at the regular commission meeting.”
During Wednesday’s public comment segment, Montana Dispensary owner Emma Albers expressed her frustration with an application process that has denied her the opportunity to establish a legally authorized business.
“There is no set ordinance to say that after the people had voted in approval we had no right to go ahead and do this business,” Albers said. “There are a lot of people who need this medicine, and it helps them quite a bit.”
“We’re not doubting that in that it would better to have more access to it in that standpoint,” Great Falls Mayor Bob Kelly responded, “but I think what we are discussing here is the ordinance that we currently have in place forbidding any kind on non-federally approved activity to be inside the city limits. It seems that we passed that in response to the medical marijuana, which I think you’ve taken advantage of to be out in the county and to have that business out there.”
“In our opinion we haven’t seen any change in the landscape, even though there has been approval of marijuana in the state by the voters,” Kelly added. “We’ve decided to put that choice to the voters come November, whether they want to get rid of the restrictive zoning that we’ve currently put on and allow operations such as yours to come in and develop use inside the city limits or not.”
Cascade County Substance Abuse Specialist Beth Morrison spoke in opposition to the permitting of marijuana dispensaries within city limits.
"We don’t need to have a whole list of lessons learned the hard way if we take this slow and steady and then reopen these things as we learn more," Morrison told the Commission. “This is not, in my opinion, about small business or one particular business. This is about our community and this is about our youth, and what kind of community we want to have and what kind of message we want to send to our youth."
Asked by the Tribune whether the City of Great Falls’ actions opposing licensing of marijuana stores within city limits runs counter to the will of a majority of the city’s voters, Commissioner Rick Tryon responded that the city is not attempting to criminalize marijuana within city limits, but has yet to devise a zoning strategy to accommodate it.
“Nothing the city commission does in this context or in sending this issue to the local voters does anything to change or contradict anything that was passed by the voters in I-190,” Tryon said. “Regardless of what happens here, adult use of marijuana will still be legal in the City of Great Falls with possession up to an ounce. The only issue that is being discussed or sent to the voters … is strictly land use issues. That’s all we’re talking about here.”
“We’re not overturning the will of the voters,” Tryon added. “The voters voted clearly that adult use of recreational marijuana would be permitted and will still be permissible up to an ounce within city limits. Nothing changes that. I wouldn’t characterize it as a clear contradiction to what the voters did in I-190.”
This article originally appeared on Great Falls Tribune: Great Falls Commission blocks weed shop for fourth time in six months