Judge rules city prohibition on marijuana businesses invalid
A district court judge has ruled that the city’s ordinance prohibiting marijuana businesses within the city limits is invalid.
Judge David Grubich ruled late in the afternoon on Oct. 11 that the city cannot refuse to process a safety inspection certificate application from Dale and Janelle Yatsko for a marijuana business on the basis of its ordinance prohibiting such businesses in the city.
The city will not appeal the decision.
All land uses for marijuana, such as sales, cultivation, testing and other activities are currently prohibited in the city’s zoning code since the code prohibits any land uses that are prohibited by federal law.
The city enacted the prohibition of marijuana, both medical and recreational, in 2010 and the rule has not been challenged since, including in the years that medical marijuana was legalized in Montana and Cascade County, but not within the city limits.
The prohibition is in the city land use code and does not address the use or possession of marijuana by individuals. Those issues are covered under state law.
The Yatskos applied for a safety inspection certificate in the spring and city staff did not process the application due to the existing ordinance. The Yatskos appealed that decision to the City Commission, which upheld the staff decision during an April meeting and since voted to send the question of marijuana businesses to the November ballot.
After commissioners upheld the staff decision, the Yatskos filed their lawsuit in district court arguing that the city didn’t have the authority to prohibit marijuana business operations.
In his order, Grubich agreed.
The city argued that it has self-governing powers to establish regulations within the city.
In his order, Grubich wrote that the 2020 statewide ballot initiative established red counties, where voters did not favor legalization of recreational marijuana and where those businesses could not operate, and green counties, where voters legalized recreational marijuana and permits those businesses until voters vote to prohibit it.
“As it stands, because voters in Cascade County voted to approve Initiative Measure No. 190 in 2020, recreational marijuana remains legal in the city until city voters decide otherwise,” Grubich wrote.
Grubich wrote that state law allows the regulation of a marijuana business operation, but “it does not allow for an interpretation which gives the city authority to regulate all marijuana businesses out of existence by completely prohibiting it.”
The city argued that its ordinance is valid because it’s a municipality with a charter form of government and has self-governing powers.
Grubich wrote that the city has the power to regulate marijuana businesses operating in the city by ordinance, but “the only power to prohibit a marijuana business in a green county or city belongs to the voters” and that the city’s prohibition is in conflict with state law.
Since the court has ruled that the city’s ordinance prohibiting marijuana businesses is invalid, the city’s new regulatory framework for those businesses goes into effect.
The version adopted by commissioners during their Sept. 7 meeting amends city code to include state law definitions of authorized commercial marijuana activities; all commercial marijuana activities would be subject to state law licensure requirements; and those marijuana activities cannot be within 500 feet of and on the same street as a building used exclusively as a place of worship or school other than a commercially operated school, unless the locality requires a greater distance.
They adopted regulations that would make:
- dispensaries, testing laboratories would be allowed as a permitted use in either light or heavy industrial districts;
- cultivation would be a conditional use in light industrial districts and a permitted use in heavy industrial districts;
- manufacturing would be a permitted use only in the heavy industrial districts.
In November, city voters will be asked whether to maintain the current prohibition on marijuana operations or to allow them within the city limits.
The question on the ballot will ask voters if they want to keep that prohibition or not. So a yes vote is to keep marijuana activities prohibited, whereas a no vote would remove the prohibition and allow the sale, cultivation, manufacturing and testing in certain zoning districts.
The 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.”