This is an amendment to Section 27-304 to clarify that land uses contrary to local, state or federal law will not be allowed by right or by conditional approval. In March 2017, the City Council directed staff to develop appropriate amendments to the City Code to ensure medical  marijuana providers and dispensaries are not allowed to locate within the city limits. This zoning code amendment is a companion amendment  to BMCC, Section 7-1700 regarding Medical Marijuana Storefronts. The City Zoning Commission held a public hearing on August 1, 2017, and is forwarding a recommendation of approval on a 4 to 1 vote.

City Council may:

• Approve the zone change as recommended by the Zoning Commission;
• Deny the zone change; or
• Withdraw the zone change; or
• Delay action on the zone change for up to 30 days.

Approval of the amendment may curtail the location of new medical marijuana providers or dispensaries within the city limits. This may diminish business activity and related or ancillary business ventures associated with the medical marijuana industry. It is not known how many medical marijuana providers or dispensaries currently exist within the city limits. The financial impact from adoption of the code amendment should be minimal across the entire economic activity in the City.

The City Council met this spring at a Work Session (March 6) to discuss the impact of the recent court decisions and Citizen's Initiative 182 approval as well as other emerging issues regarding Medical Marijuana in Montana. The City Council asked staff to move forward with amendments to not allow Medical Marijuana Providers/Dispensaries/or Storefronts of any kind within the City Limits.

In 2010, the City Council adopted an interim Zoning ordinance prohibiting the location of any further medical marijuana storefronts in the City Limits. The interim ordinance expired and was not replaced with a permanent ordinance due to court challenges and state legislative activity regarding provisions in the Medical Marijuana Act (MMA).

Court challenges to the restrictions in the MMA as amended by Senate Bill 423 (2011) were successful. The court decision, in addition to CI 182 passage in November, required the City to consider updates to its adopted codes. Several options were proposed to the City Council in March 2017. The City Council direction in this matter was to prohibit dispensaries and sales of medical marijuana by providers within the City Limits. The proposed zoning regulation amendment will help to clarify that medical marijuana dispensaries and providers are not an allowed use or conditional use within the City Limits. The amendment is modeled after similar language in other Montana city codes that also prohibit dispensaries and providers.
 

The Zoning Commission held a public hearing on August 1, 2017, and received the staff recommendation and testimony from those in favor and those opposed to the amendment. Senator Cary Smith and his wife, Susan, testified in favor of the amendment. He state he was involved with the local steering committee when the "wild west" opened up here in Billings with over 100 new medical marijuana businesses opening up within a few months. He stated he has continued to follow the issue and help the legislature and the administrators at health and human service craft good laws and regulations. He stated the state law and citizen's initiative have always included language that allows each community to decide whether to allow medical marijuana businesses or not. He stated this should be a local decision.

Testimony in opposition to the amendment was received from Richard Abromeit, owner of Montana Advanced Caregivers, Inc. located at 1101 Maggie Lane, Jeffrey Hill of 3855 Avenue D, Tina Walker of 4100 Murphy Avenue, and Jeff and Vicki Eubank of 5522 Forest Hills Drive.

• Mr. Abromeit stated he runs the largest medical marijuana dispensary in the state and has over 450 patients as customers. He stated his business supports many local organizations and that most of his patients are very ill and have no other way to receive the prescribed medication. He state he has been continuously in business in Billings for 9 years and has been inspected regularly by the Fire Department as well as the Police Department. He stated his business is located right next to the Billings Operation Center just south of Midland Road. He stated his business provides reduced or free medication to low income customers. He stated the City has always renewed his business license since he opened in early 2010.
• Mr. Hill stated he is opposed to the amendment because marijuana has no chance of overdose, does not create additional police calls like bars and casinos and is now an accepted form of treatment for many patients with chronic diseases or conditions. He stated there are many people including veterans who could benefit from medical marijuana if it is available.
• Ms. Walker stated the people have decided again that medical marijuana is an acceptable business and practice in the state of Montana. She stated the City should not be trying to put people out of business or make it more difficult for patients to get their medication.
• Mr. Eubank stated he is interested in starting a medical marijuana dispensary in a building he owns in an industrial area of town. The proposed amendment would prevent this from happening. He stated he is not supportive of the City always going against the voters on this issue. He stated the City should allow these businesses. Mrs. Eubank stated she was also opposed to the amendment. She stated the state law allows medical marijuana to be prescribed by doctors and allows businesses to grow and dispense medical marijuana. She stated this code amendment will just make it harder for patients to get their medication.

Dan Wagner, Zoning Commission Chair, closed the public hearing. Commission Member Mike Boyett made a motion to recommend approval of the text amendment. The motion was seconded by Commission Member James Mariska. Commission Member Michael Larson spoke against the motion. He stated that he was concerned the amendment is contradictory to the citizen’s initiative to allow medical marijuana, is concerned about “enforcing” federal law through local zoning, and that the amendment would be a potential conflicting section of the City code when the City and County go to “re-unify” the code in a couple of years. The Commission voted 4 in favor and 1 opposed to the motion to recommend approval.
 

The City adopted an amendment to the Business Tax Determination city code in October 2012 that prohibits the City Finance staff from accepting or approving a City business license for any activity considered illegal under any local, state or federal law.

BMCC 13-438: