City sets hearing to send marijuana to the ballot; second marijuana related lawsuit filed against county
City Commissioners have set a public hearing for Aug. 2 on whether to send the question of legalizing marijuana sales within the city limits to the November ballot.
Marijuana sales have been prohibited in the city limits through the zoning code since it’s still a prohibited substance under federal law.
The commission adopted an ordinance in 2010 prohibiting marijuana sales in the city after medical marijuana was legalized by the state in the mid-2000s.
The ordinance was unchallenged until this year.
In November 2020, voters approved an initiative to legalize more marijuana activities, including recreational adult use, statewide.
The ballot initiative included language that would have prohibited the city from completely prohibiting commercial adult-use marijuana, but the 2021 Legislature removed that restriction, according to city staff.
“As a self-governing municipality, the city is allowed to exercise any power not specifically prohibited and any limitation on its authority has to be express, not implied. The actions of the 2021 Legislature in very specifically removing 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,” according to the city staff report.
Earlier this year, the city did not process an application for a safety inspection certificate for a proposed marijuana dispensary within the city limits.
The applicant, Dale Yatsko, appealed that decision, which commissioners upheld during a public hearing in April.
Yatsko has since filed a lawsuit against the city in district court over their prohibition of marijuana dispensaries.
Yatsko is also involved in pending litigation with Cascade County over his marijuana operation in the county.
When the commission upheld the staff decision, they also directed staff to develop language to send the question of legalizing marijuana within the city limits to the November ballot.
The proposed amendment that would go to the voters is:
- “17.4.070 – Relationship of this Title to other regulations. In addition to meeting the regulations contained in this title, development shall comply with all applicable regulations of federal and state agencies. In all cases, the strictest of the applicable provisions shall apply. No use of land shall be permitted by right or conditionally permitted within the incorporated city limits that is in violation of federal, state or local law. This prohibition includes, but is not limited to, any use of land for the marijuana business categories otherwise authorized by Mont. Code Ann. Title 16, Chapter 12, Parts 1 through 5 and Admin. R. Mont. § § 42.39.401 et seq.”
- “17.20.3.070 – Prohibited land uses. No use of land shall be permitted by right or conditionally permitted within the City of Great Falls that is in violation of federal, state or local law. This prohibition includes, but is not limited to, any use of land for the marijuana business categories otherwise authorized by Mont. Code Ann. Title 16, Chapter 12, Parts 1 through 5 and Admin. R. Mont. § § 42.39.401 et seq.”
If a majority of voters approve the proposed amendment, the city code will continue to prohibit any commercial marijuana business within the city limits.
If a majority of voters don’t approve the proposed amendment, the commissioners will consider a regulatory framework under which various commercial marijuana businesses would be allowed to operate within the city limits.
The pending litigation over the SIC denial may impact the timeline for adopting the regulatory framework should the voters chose to allow marijuana in the city limits, according to the city.
Some area residents have asked the Cascade County Commission to also send the question of legalizing marijuana to the November ballot.
Commissioners determined that they could not refer it to the ballot themselves, as the Yellowstone County Commission did earlier this year, and that a citizen petition was required.
The petitioners submitted their language in May and it took the county attorney’s office a month to review and approve it, leaving two months for the petitioners to gather about 8,000 petitions. The county attorney’s office set the deadline for Aug. 24. The deadline for the county elections office to send information to the state for ballot certification is Aug. 25.
The petitioners were told by the elections office and county attorney’s office to submit petitions as they go in order for the elections office so that elections officials can process and verify the signatures.
Petitioners dropped off the first batch on July 22. That included six petitions. Of those, the elections office processed four and their were 277 signatures accepted, according to the elections office.
For the other two, the elections office had to contact the petition gathered since they didn’t fill out the unsworn declaration correctly, according to the elections office. As of July 27, that form had not been corrected and returned so the elections office cannot yet process those signatures.
Cascade County Commissioners are also sending a marijuana question to the November ballot. The are sending the question of whether the county should enact the three-percent local option tax on marijuana sales within the county.
When the state marijuana ballot initiative was approved, it included a state tax on marijuana sales, but gave counties the option to enact their own local tax. Without the local option tax, counties and municipalities receive no marijuana tax revenue.
County Commissioners also recently upheld a staff decision that deemed a marijuana operation in the county illegal. That property owner filed suit against the county in district court last week to appeal the decision.