Marijuana dispensary opening after winning lawsuit against city
Emma Albers is opening her marijuana dispensary at 1427 3rd Ave. N. after a years-long dispute with the City of Great Falls.
Earlier this year, District Court Judge Elizabeth Best ruled that Albers’ business, Montana Dispensary, was a legal nonconforming use and the city shall approve, through a safety inspection certificate, that Albers may operate the dispensary and the city must pay Albers their “reasonable attorneys’ fees and costs incurred” in the case.
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Albers and the city are still negotiating some other aspects of the case, according to City Attorney David Dennis.
Best ordered that the city must pay attorneys’ fees to Albers since it had continued to refuse to “reconsider its failure to review” her safety inspection application and forced her to file suit despite the order in a 2022 case and “because the city continued to enforce an invalid ordinance against [Albers].”
Beginning in 2019, Albers leased the property at 1427 3rd Ave. N. and intended to eventually operate a state-licensed marijuana dispensary.
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The property is zoned R-3 single-family high density but had consistently operated as a legal nonconforming commercial use since at least the 1990s, according to court documents.
In 2019, the city issued a safety inspection certificate based on Albers stated intent to “maintain the commercial status of the building” and to operate as a “sales and boutique,” the same as the antique store that had previously occupied the property, according to court documents.
After the state legalized recreational marijuana in October 2021, Albers submitted an SIC application to update the property use to a dispensary.
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City staff refused to process that application since, at the time, city code prohibited all land uses for marijuana, such as sales, cultivation, testing and other activities, since city code prohibits any land uses that are prohibited by federal law.
The prohibition was in the city land use code and did not address the use or possession of marijuana by individuals, which are covered under state law.
Another district court judge ruled in October 2022 the city ordinance prohibiting marijuana land uses within the city limits was invalid.
Albers attempted to submit SIC applications two more times in 2022 and staff continued refusing to process them.
Albers appealed to the City Commission, which upheld staff’s decision not to process her application in August 2022.
“There is no evidence that the city ever considered the proposed use as a prior existing nonconforming use despite its discretion to do so. Moreover, evidence in the record reflects that the city specifically chose not to consider ‘something as politically charged as a marijuana dispensary,'” Best wrote in her order.
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Best wrote that Albers’ location was just blocks from other commercial spaces, including other dispensaries within half a mile and that the city didn’t dispute Albers’ assertion that her dispensary use wouldn’t increase or expand traffic and parking or other environmental impacts.
The city had approved other improvements to the building before the “dispensary moratorium,” Best wrote, and “the only impediment to operating a dispensary at the location is the withheld safety inspection certificate.”
When Albers submitted her first SIC application in 2021 for a dispensary, “after recreational marijuana was legalized but before the city changed its regulations, the city did not expressly identify in which zoning districts marijuana dispensaries were permitted,” Best wrote.
The city later limited dispensaries to I-1 and I-2 industrial zoning areas.
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City code at the time Albers sought an SIC for her dispensary in 2021 and 2022 required a legal nonconforming use meet the requirements of the zoning district in which the existing or most recent use is first perimtted, which in the case of Albers’ location was C-1 neighborhood commercial.
At the time, marijuana dispensaries were an unlisted use, which was permitted under city code if a use met other criteria, including similar impact to other permitted uses.
The Albers case drew parallels from a 2022 case against the city from another marijuana dispensary, operated by the Yatskos in the location of a former micro-brewery on 10th Avenue South, according to court documents.
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In that case, the court determined a marijuana dispensary was a legal nonconforming use at that location.
Best wrote that Albers only had to show that the proposed use was similar to any permitted use in C-1 district.
“Like the Yatskos, [Albers] showed that a marijuana dispensary is of a similar nature to a commercial business that sells alcohol, a mind-altering substance in a highly regulated industry. The city concedes [Albers] operated an existing legal nonconforming use first permitted in a C-1 zoning district. The analysis here is nearly indistinguishable with that in Yatsko—namely, whether the proposed use is similar nature to other another permitted use where alcohol can be sold.
Statutorily, any ambiguity created by the interplay of unlisted uses and the analysis required prior existing nonconforming uses must be construed in plaintiffs’ favor. A marijuana dispensary is of a similar nature to other commercial uses permitted in C-1,” Best wrote in declaring Albers had satisfied the city code requirement for a legal nonconforming use and the city had not rebutted Albers’ evidence that the proposed use would have a similar impact.
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Albers was the second applicant for an SIC for a marijuana dispensary in the city limits.
Dale and Janel Yatsko had also applied in 2022. The city did not process either application since code prohibited dispensaries at the time.
The Yatskos appealed. Commissioners upheld the staff decision during an April 2022 hearing.
The Yatskos filed a lawsuit in District Court arguing that the city didn’t have the authority to prohibit marijuana business operations.
The city argued that it had self-governing powers to establish regulations within the city.
During the April meeting on Yatsko’s appeal, commissioners asked staff to consider sending the question of whether to allow marijuana operations in the city to voters.
In August 2022, commissioners voted to send the question to the November ballot.
In October 2022, Judge David Grubich ruled that the city cannot refuse to process a safety inspection certificate application from the Yatskos for a marijuana business on the basis of its ordinance prohibiting such businesses in the city.
The city did not appeal the decision.
The city enacted the prohibition of marijuana, both medical and recreational, in 2010, and the rule had not been challenged since, including in the years that medical marijuana was legalized in Montana and Cascade County, but not within the city limits until the Yatsko and Albers cases in 2022.
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.
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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.”
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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 went into effect.
The version adopted by commissioners during a September 2022 meeting amended 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 so:
- 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 2022, city voters were asked whether to maintain the current prohibition on marijuana operations or to allow them within the city limits.
The question on the ballot asked voters if they want to keep that prohibition or not. 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 went to voters was:
- “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.”
The November ballot asked voters, “should marijuana business operations remain prohibited in the city limits?”
- Yes: 9,688
- No: 10,418
On the ballot, voters approved a local option tax on marijuana sales.
The county’s local marijuana tax has been generating about $260,000 annually for the last few years, up from the initial $45,000, Trista Besich, county finance officer, said during a May 2026 county compensation board meeting in reviewing county finances. The city receives a portion of that tax revenue.
