Great Falls voters will decide whether to allow marijuana businesses in the city
In less than a week official ballots for the 2022 midterm election will be mailed out. In addition to the slate of statewide and local candidates, Great Falls voters will be presented with three marijuana-related ballot issues. Two deal with countywide taxation of marijuana sales, in straightforward language on whether to impose a 3% excise tax on both medical and non-medical marijuana products.
A third ballot measure is exclusive to voters living within the city of Great Falls. The Great Falls City Commission is asking voters to prohibit all types of marijuana businesses from operating within Great Falls city limits, an issue that many voters believe they’d already answered nearly two years ago when Cascade County voted by a margin of 54.7% to 45.3% to legalize adult use of recreational marijuana. The margin of approval was even higher in many of Great Falls’ city voting precincts.
Supporters of this new "pot shop" ban warn of the effects marijuana dispensaries would have on teenage drug use, impairment-related traffic accidents, and the city's overall appearance and reputation.
Critics of the city’s attempts to amend its official code to prohibit any and all types of marijuana businesses from operating in Great Falls argue that it’s the city’s attempt to make an end run around decided state law and that the language of the ballot issue is so confusing that many voters will have a hard time understanding exactly what they are voting for or against.
“The City Commission of the City of Great Falls has proposed an amendment to the Official Code of the City of Great Falls to specifically prohibit all types of marijuana business categories from operating within the City of Great Falls,” the official language of the ballot issue reads. “These categories include marijuana dispensaries (adult-use and medical), combined use, cultivation and manufacturing activities, testing laboratories and marijuana transportation facilities.
“What this technically is saying is that right now state law and Great Falls city code conflict,” explained Great Falls attorney Raph Graybill. “There are no marijuana businesses allowed in Great Falls under current city code. The city is saying, we’d like you to vote "for" amending the city code to prohibit marijuana businesses all over again. The "yes" vote is for a "change" to preserve the status quo. It’s worded in such a confusing way, that I wouldn’t put a lot of stock in either outcome being a real reflection of the voters’ will. 'Yes' is 'no' and 'no' is 'yes.' It’s an upside-down confusing question. Look, I’m a lawyer and I look at this stuff all day, and that doesn’t make any sense. How do you read a public mandate into the way they’ve worded this? It’s the complete opposite of the original question of the I-190 Initiative, which was a simple 'yes' or 'no.’”
The situation is further complicated by the fact that the prior city attorney for Great Falls, Jeff Hindoien, recently left his job with the city – a position Hindoien held for only a year – to accept a job in the private sector. According to Robin Beatty, a paralegal with the city attorney’s office, Hindoien’s former position is currently filed by an interim city attorney, David Dennis, and that Dennis would not likely be willing to discuss the issue.
“You can check with our interim city attorney if you want to, although I think his response is the city’s process is pretty much done up until the election happens,” Beatty said. “Everything that we have publicly available to discuss is on our website. On there is a separate page that is dedicated to that issue, and I don’t think he’s been able to add anything to what we’ve already posted there as to what we’ve already posted.”
“Initiative Measure 190 (I-190) was approved by the electors of the State of Montana (including the voters of Cascade County and the City of Great Falls) in November of 2020, legalizing possession and use of limited amounts of marijuana by adults over the age of 21, and also legalizing certain marijuana business categories,” the city’s web page states in part. “The Montana Legislature subsequently modified and repealed various portions of I-190 through the enactment of House Bill 701 to create a different legal structure to allow for and regulate marijuana business activities.
“This referendum will allow the voters of the City to decide themselves whether they want to enact new provisions in the City Code that will specifically refer to and prohibit the various forms of marijuana business categories that are otherwise authorized under HB 701. If a voter wishes to enact the new specific prohibitions in City Code, they can vote FOR the Code amendment. If a voter does not wish to enact the new specific prohibitions, they can vote AGAINST the Code amendment.”
“The City has been sued by individuals who wish to operate a commercial dispensary in the City and are asking the local District Court to order the City to allow them to do so,” the web page continues. “That lawsuit seeks a ruling that the City does not have the legal authority under Montana law and its current City Code to prohibit commercial marijuana activities. That lawsuit may or may not be fully decided before the election in November of 2022, but it does not currently challenge the legality of the referendum being placed before the voters.”
The city’s web page does not specifically address the convoluted path that both the city of Great Falls and Montana State Legislature have taken to reach this point.
The long and winding road of marijuana law in Great Falls
Graybill is currently representing Dale and Janelle Yatsko, a Cascade County couple that is seeking an injunction in State District Court ordering the city of Great Falls to process its business application to open a marijuana dispensary within Great Falls city limits. The Yatskos' dispute with the city began in February after the Yatskos asked Great Falls to begin processing their application for a business permit application within city limits.
While the Yaksos attempted to submit an application just eight months ago, their experience in Montana’s marijuana industry began 15 years ago when they first established a grow operation and dispensary for medical marijuana patients.
“We’ve been in the industry for 15 years now,” Dale Yatsko said. “We started out in a little 10-by-12 room and now we’re at 7,500 square feet. Our interest in this when we got started is that we’re at ground level to start out in an industry that we knew would someday really bloom. It was just an opportunity for us to build a business from the ground up that hopefully we could pass down to our kids and it would be lucrative. That was our ultimate goal.”
“At that time (in 2007) I’d had two heart surgeries, so the doctors told me I had to get out of the heavy lifting and all the stress,” Yatsko added.”
Montana first legalized medical marijuana in 2004. Six years later, after a great surge in medical marijuana green cards led to more than 30,000 patients registered in Montana, the city of Great Falls passed an ordinance blocking marijuana businesses of any kind.
“The ordinance in 2010 that they first passed … they didn’t write it to say medical marijuana is illegal in Great Falls,” Graybill said. “It was about marijuana, but the word ‘marijuana’ doesn’t appear anywhere in the statute. It said the city shall not approve land uses not in compliance with federal law.”
“I guess ostensively if you wanted to build a munitions plant and the ATF said no, then they would not permit that, but it was always really about marijuana. I don’t think there are a lot of people building other federally questionable businesses. That’s all being sort of cute around the edges. The city passed an ordinance banning medical marijuana.”
To this day 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.
On Thursday, the Biden administration took its first major steps toward decriminalizing marijuana, fulfilling a campaign pledge to erase prior federal possession convictions and beginning the process of potentially loosening federal classification of the drug.
And the president has tasked the Department of Health and Human Services and Attorney General Merrick Garland to “expeditiously” review how marijuana is scheduled under federal law, the first step toward potentially easing a federal classification that currently places marijuana in the same category as heroin and LSD.
“No one should be in jail just for using or possessing marijuana,” Biden said in a video announcing his executive actions. “It’s legal in many states, and criminal records for marijuana possession have led to needless barriers to employment, housing, and educational opportunities.”
Yet the Great Falls City Commission has relied upon that same ordinance from 2010 to justify a ban on marijuana-related businesses ever since. During a city commission meeting in August 2021, Hindoien referred to the 2020 ordinance to justify the city’s position on the issue.
“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 Yatskos estimate they have now invested upwards of $500,000 into developing the Green Creek grow operation and dispensary, which sits just outside Great Falls city limits off Gibson Flats Road. In January of 2022, after Montana I-190 passed allowing people 21 and to possess and use up to one ounce (28 g) of marijuana, the Yatskos contracted to lease a property within Great Falls city limits in which to establish a dispensary. State inspectors examined the property and found that it met with all state guidelines including setbacks from daycares and schools.
The City of Great Falls’ role in that process began when the Yatskos sought to obtain a Safety Inspection Permit, the first step in obtaining an official business license to operate within Great Falls city limits.
“I went in there and told the lady at the desk that I wanted this inspection done,” Dale Yatsko said of his experience in early February 2022. “We gave her all the documents and she saw the word ‘marijuana’ and turned about as white as this room.”
Yatsko then spoke with the on-duty commander at Great Falls Fire/Rescue about working through the process.
“He said we can’t do it because they have orders from the city that they are not to inspect any of us, and that was it,” Yatsko recalled. “They were just told by city officials that they could not inspect anything in our industry. I just believe that they didn’t want our industry, and that was it.”
Graybill argued that the Montana State Legislature specifically gave Montana cities and counties more than a year to codify their zoning ordinances to comply with the new state law, but that the City of Great Falls chose to do nothing.
“In both the initiative (I-190) and the law which amended the initiative (HB 701) there was a sense that if you’re a city that doesn’t want dispensaries near certain other businesses, doesn’t want the advertising too big – whatever it is, you’ve got a year to figure that out,” Graybill said. “Most cities did, and there’s even been some fights about it. Bozeman had this ‘cap system’ that got challenged, and other cities have different rules on how these businesses can operate. Great Falls just kind of put its head in the sand and said we’re just not going to deal with this, until somebody challenges it.”
“Cities are subdivisions of the state,” Graybill continued. “If you’re a city you are completely under the wing of the state, and you’ve got to follow the state’s law first. You don’t get to pick and choose which law you want to follow. You’ve got to follow the state’s law. The fight in our case right now is about whether cities have special powers to go around state law or where the state law is silent.”
“They looked at again after recreational marijuana passed,” Graybill said of the City’s legal maneuvers, “and they had a decision point. Are we going to plan and get with the program like other cities, or if we don’t like it are we going to start the petition process we have to follow? And the city chose to put its head in the sand, not deal with the issue, and wait for somebody like the Yatskos to get caught in the crossfire here.”
To be clear, city and state governments in Montana do not have the authority to overturn the legality of marijuana possession or use. Their authority only extends to zoning, the where and if of marijuana dispensaries within their jurisdictions.
“They had time to say, ‘we’re not going to allow them to be downtown, we’re going to zone them into certain areas,” Graybill argued. “What I think they’ve really denied the community … is the opportunity to have an outward, fulsome debate about should dispensaries be allowed downtown? What should the average signage look like? The city went a separate path, put their heads in the sand and pretended like it’s not here, and have really denied the public a say in how it will be when it is here.”
“There’s a lot of latitude, but the latitude doesn’t extend to where you can ban them or not,” Graybill added. “That’s a state law question that the voters have already answered.”
The Yatskos say they’ve already committed themselves to following the legal path they’ve taken to the bitter end. If Great Falls voters pass the city’s ordinance proposal, then they will likely be forced financially to relocate Green Creek Dispensary to a different, more accommodating municipality.
“To the landlord we have now we’re paying close to $80,000 a year,” Dale Yatsko said. “We’re just shy of $48,000 a year that we pay to NorthWestern Energy for both facilities. We pay $150,000 to $160,000 a year in wages, and then we’re spending well over $100,000 a year with local businesses. It all stays here. It doesn’t go to Bozeman, it doesn’t go to Billings, it doesn’t go out of state, it stays here.”
If don’t get it, all of this future growth is gone,” he added. “All the jobs are gone, and if we have to move to, say to Helena, all the money we spend locally goes away too. That’s the position that puts us in.”
Janelle Yatsko said Green Creek Dispensary’s customers are confused about how to vote.
“Most of them don’t even know how do we vote? What are we supposed to do?” she said. “Most of them are wondering why they’re even having to protect their original vote again. They’re burned out. They’re tired of fighting this.”
This article originally appeared on Great Falls Tribune: Great Falls voters will decide whether to allow marijuana businesses in the city
