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City of Deer Lodge Ex Rel., the Matter of City of v. Gary W. Chilcott

August 3, 2012

CITY OF DEER LODGE EX REL., THE MATTER OF CITY OF DEER LODGE ORDINANCES 130 AND 136: SHERMAN ANDERSON AND BONNIE ANDERSON, JOHN MOLENDYKE AND CHARLOTTE MOLENDYKE, JASON JONES AND QUINN JONES, MARK HATHAWAY AND MARY HATHAWAY, EMERY D. WESTON, DALLIS HUNTER AND MAGGIE HUNTER, THE REVEREND DAVID BAKER AND JANA BAKER, CHARLIE SEDMINIK AND NANCY SEDMINIK, STANLEY C. SWORDER, DR. DUSTIN RUBINK AND KELLY RUBINK, MICHAEL NASEATH AND CAMELLIA NASEATH, DR. DOUGLAS MCLAWS AND TIFFANY MCLAWS, BRANT PIERSON AND HEIDI PIERSON, AND JOHN COUTU AND CLEO COUTU, PLAINTIFFS AND APPELLANTS,
v.
GARY W. CHILCOTT, BRIAN CHILCOTT, TALYN LANG, ZOO MOUNTAIN NATURAL CARE, INC., AND CITY OF DEER LODGE, DEFENDANTS AND APPELLEES.



APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV 10-51 Honorable Loren Tucker, Presiding Judge

The opinion of the court was delivered by: Justice Brian Morris

Submitted on Briefs: May 9, 2012

Decided: August 3, 2012

Filed:

Clerk

Justice Brian Morris delivered the Opinion of the Court.

¶1 Sherman Anderson and other concerned residents of the City of Deer Lodge (hereinafter "Anderson") appeal an order of the Third Judicial District Court, Powell County, denying their petition for a writ of mandamus. We affirm.

¶2 Anderson raises the following issue:

¶3 Did the District Court properly conclude that the City of Deer Lodge lacked a clear legal duty to revoke Zoo Mountain Natural Care, Inc.'s business license?

¶4 Zoo Mountain Natural Care, Inc. (Zoo Mountain) formed as a Montana corporation in January 2010. Zoo Mountain formed for the business purposes of lawfully growing and selling medical marijuana in accordance with the 2009 version of the Medical Marijuana Act (MMA).

¶5 Gary Chilcott, president of Zoo Mountain, purchased a property located in Deer Lodge, Montana, on March 23, 2010, on behalf of the company. Zoo Mountain began moving marijuana plants into the property on April 3, 2010. It also brought over 300 registered medical marijuana patient cards onto the property in early April.

¶6 Zoo Mountain contacted the City of Deer Lodge (City) in March 2010, shortly before the move, to obtain a business license. The City was not issuing business licenses when this move occurred, however, due to a change from a calendar-year licensing system to a fiscal-year licensing system. The City previously had determined that it would waive the business license requirement for new applicants during this transition period. The City had decided it would resume issuing licenses on July 1, 2010. The City accordingly allowed Zoo Mountain to operate lawfully without a business license until July 2010.

¶7 The City Council convened shortly after Zoo Mountain's move to Deer Lodge. Anderson expressed concern over Zoo Mountain's location at this meeting. He specifically disliked the fact that Zoo Mountain was located in a residential neighborhood, and that Zoo Mountain was located near the Church of Jesus Christ of Latter Day Saints.

¶8 The Council responded by enacting Emergency Ordinance 130 on April 9, 2010. This law banned the development of new commercial medical marijuana activity within 1,000 feet of any school, daycare, church, park, baseball field or youth recreational facility. Ordinance 130, an emergency ordinance, only governed for 90 days after its enactment. The City enacted a permanent ordinance, Ordinance 136, on July 6, 2010. Ordinance 136 largely mirrors Ordinance 130.

ΒΆ9 Meanwhile, the City issued a business license to Zoo Mountain effective July 1, 2010. The application defined the license holder as "Zoo Mountain Natural Care." The application described Zoo Mountain's operation as an "agricultural warehouse." The city clerk who received the application expressed uncertainty whether to issue the license. The city clerk conferred with Mayor Mary Fraley, who in turn consulted City Attorney Tiffany Heaton. Mayor Fraley ultimately ...


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