Posted by: Patricia Salkin | January 19, 2018

MI Appeals Court Finds Local Ordinance Prohibiting the Outdoor Growing of Medical Marijuana Conflicted with Michigan Medical Marihuana Act

Defendants, David Miller and Donald Miller, were qualified medical marijuana patients along with defendant, Katherine Null, who served as David’s registered medical marijuana primary caregiver. During 2014, Null directed David to construct a medical marijuana structure in Donald’s backyard for containing the cultivation of medical marijuana for patients connected to Null through registration under the Michigan Medical Marihuana Act (“MMMA”). Defendants failed to obtain a construction permit for the medical marijuana outdoor growing facility, never got permits before installing an electrical and watering system, and never obtained a certificate of occupancy. After learning that defendants built their medical marijuana facility outdoors that failed to comply with zoning and construction regulations, plaintiff filed a declaratory judgment action seeking the trial court’s determination of the validity of its zoning and construction regulations and its right to enforce them as they applied to the cultivation and use of medical marijuana in zoned residential locations and subdivisions. In this case, plaintiff appealed from the trial court’s judgment declaring that plaintiff could not enforce its zoning ordinance’s prohibition against outdoor growing of medical marijuana because the ordinance conflicted with the provisions of the MMMA, and was therefore preempted.
The local ordinance at issue, Zoning Ordinance § 40.204 restricted home occupations and home-based businesses. Specifically, § 40.204(13)(e) required that all medical marijuana was to be contained inside the house in residential zoned areas. Here, the court noted that plaintiff’s home occupation ordinance § 40.204(13), subparts (e) and (f) clearly prohibited the outdoor growing of medical marijuana that the MMMA otherwise permitted. As such, the court found that plaintiff’s prohibition effectively denied registered caregivers the right and privilege that the MMMA permitted. Furthermore, the MMMA did not grant municipalities authority to adopt ordinances that restricted registered caregivers’ rights and privileges under the MMMA. Accordingly, the court held the local ordinance was void and preempted by the MMMA.
Charter Township of York v Hiller, 2018 WL 472187 (MI App. 1/18/2018)
This post was authored by Matthew Loeser, Esq.

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