Mitchell City Council denies two medical marijuana variances, igniting dispute over regulatory measures

“Everybody is all worried to say cannabis, like, 'Oh my God, they are all criminals.' These are people trying to get into a business opportunity that the state made available to them,” said council member Steve Rice.

medical marijuana
Medical cannabis

MITCHELL — A pair of medical marijuana entrepreneurs seeking to open cannabis dispensaries in Mitchell will have to search for new spots to set up shop after the Mitchell City Council denied their variances.

Due to the close proximity of a Main Street church and nearby property owners’ opposition to the proposed downtown dispensary, the Mitchell City Council struck down Emmett Reistroffer’s variance request that he was required to secure to open a cannabis dispensary in a building on the corner of Fifth Avenue and Main Street. Mitchell businessman Donald Livesay Jr. was the second applicant hoping to open a dispensary who had his variance denied Monday because his proposed 501 E. Juniper Ave. building was within 1,000 feet of another approved dispensary.

The discussion of the variances sparked disputes among several council members and Mitchell residents who were adamantly opposed to both of the proposed dispensary locations. And the council's 4-4 vote to deny the variances showed there is some division on the city's medical cannabis regulatory measures.

Council member Steve Rice has been questioning why downtown medical marijuana establishments must comply with a 300-foot buffer zone around churches, and bars that sell alcohol do not. Under Mitchell's cannabis zoning regulations, a dispensary cannot be within 300 feet from a religious institution unless a variance is granted.

“It’s ironic we are going to vote on a handful of alcohol permits at the Masonic Temple which is 70 feet away from the same church,” Rice said prior to voting in favor of the downtown dispensary variance.


Shown here is the Fifth Avenue and Main Street building where a medical marijuana entrepreneur was seeking to open a medical marijuana dispensary.
Matt Gade / Republic

Piggybacking off Rice’s comments, Reistroffer highlighted the city of Sioux Falls recently adopted a rule change that eliminated cannabis dispensaries having to comply with buffer zones around churches in the downtown central business district.

"Sioux Falls realized they had churches everywhere — in the mall, Western Mall and downtown. So they removed churches from sensitive use setbacks if they are in commercially zoned areas," Reistroffer said.

Rice also questioned why all of the residents who were opposed to the variances did not object to the council’s decision to implement 1,000-foot buffer zones from two dispensaries when the council adopted the cannabis ordinances in November. Considering most of the nearby property owners against Livesay's variance were concerned that his dispensary would create a concentration of marijuana businesses, Rice said there was ample opportunity for them to address the concentration concern when the council was rolling out the ordinances, asking why now?

“At the time we put that in place in November, no one spoke at all about 1,000 feet or 300 feet, or anything related to that. No one spoke against them until they found out where the locations were,” Rice said, noting the applicants did not know where the other proposed dispensaries were located. “Everybody is all worried to say cannabis, like, 'Oh my God, they are all criminals.' These are people trying to get into a business opportunity that the state made available to them,” Rice said.

Several nearby property owners against Livesay's variance also alleged his proposed 501 E. Juniper Ave. building would cause public safety issues, increase traffic around the area and give the south side of Mitchell a bad look. Christopher Kummer, who owns property near the Juniper Avenue building, urged the council to deny Livesay's variance, claiming the dispensary would cause harm on the area, his friends, family and the entire community.

"The fairest thing for everyone is to abide by the rules already established. And this part of the city is one of our main arteries. We don't need to create a concentration in such a vital part of the community," Kummer said, noting there are more suitable areas available in Mitchell.

Mitchell resident Dwight Stadler emphasized he voiced his opposition to medical cannabis dispensaries during the adoption process of the ordinance and urged the council to stick to the regulations outlined in the ordinance and not bend to variance requests.

“I’m not opposed to medical marijuana establishments doing business, but if they are really medical cannabis, why aren’t they next to Avera Queen of Peace. Concentrating marijuana establishments on Burr Street makes no sense to me,” Stadler said.


Shown here is the 501 E. Juniper Avenue building where Donald Livesay Jr. was seeking to open a medical cannabis dispensary. The council denied his variance on Monday.
Sam Fosness / Republic

Although Stadler was at the council's initial cannabis ordinance meetings, Rice noted Stadler did not mention anything about the 1,000-foot buffer zone.

Reistroffer claimed the Main Street dispensary would not have any negative impact on the surrounding area. He said the strict security measures he’s required to abide by, per state regulation, would help avoid potential safety issues that some nearby property owners were leary of.

"National Realtors Association has a study that has shown in several states where dispensaries opened that crime actually goes down. Because we have so much on the line with our license, we tend to be the most proactive person on the block with reporting suspicious activity," he said. "We'll have good security."

Tara Volesky, owner of the building where Reistroffer was seeking to open a dispensary, encouraged the council to approve the variance and noted that the downtown Mitchell dispensary would

"I don't partake in marijuana, but I know a lot of veterans who are tired of being shamed or having to sneak around to get medicine," Volesky said. "There is nothing to be afraid of. If you want to be afraid, look at all the drunks walking around downtown when the bars close."

After denying the variances, the council allowed Reistroffer and Livesay Jr. to keep their licenses for a year, providing them with an opportunity to find new locations in Mitchell.

Typically, Mayor Bob Everson breaks a 4-4 tie vote. But the council sat as the Board of Adjustment to vote on the variances, which requires six votes of approval to pass.

Searching for a new spot, while avoiding concentrating areas

In response to the council’s suggestion to find a different location in Mitchell, Reistroffer, owner of Genesis Farms, said it’s been challenging to find another building to open a dispensary. Livesay has experienced similar challenges in finding a new location as well.


“It’s been tough finding a place. I’ve utilized realtors and city officials to help, but it has been tough,” Livesay said.

Reistroffer cited the intent of the city’s cannabis ordinance that aims to prohibit a concentration of marijuana dispensaries in any particular areas as a reason his proposed downtown dispensary should be supported. The downtown location would have been the only dispensary not located along the south side of Mitchell, which Reistroffer said was a major factor in choosing the Fifth Avenue and Main Street building.

As one of the five applicants who was drawn in the Sioux Falls and Rapid City medical marijuana lottery systems, Reistroffer is hoping to add Mitchell to the list of South Dakota cities he does business in. Despite being denied the opportunity to open a dispensary at the Main Street location, Reistroffer says he’s not giving up on finding another building in Mitchell to set up shop.

With the council’s decisions on the medical marijuana variances, Mitchell’s cannabis industry is starting to take shape. There are three dispensaries approved in Mitchell. However, all three are located on the south side of Mitchell near Interstate 90.

The maximum number of dispensaries allowed in Mitchell is capped at five.

A Missouri-based medical cannabis company’s plan to open a dispensary at the former Runnings building along Burr Street, and Jordan Raftis’ plan to open a dispensary in a strip mall near Walmart were the first two dispensaries to secure approval from the council. Native Nations Cannabis is the most recent dispensary that cleared obstacles to open a dispensary along South Burr Street.

Sam Fosness joined the Mitchell Republic in May 2018. He was raised in Mitchell, S.D., and graduated from Mitchell High School. He continued his education at the University of South Dakota in Vermillion, where he graduated in 2020 with a bachelor’s degree in journalism and a minor in English. During his time in college, Fosness worked as a news and sports reporter for The Volante newspaper.
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