Posted by: Patricia Salkin | July 23, 2018

MI Appeals Court Finds Zoning Ordinance Conflicted with the Provisions of the Michigan Medical Marihuana Act

This post was authored by Matthew Loeser, Esq.

Defendant Township of Byron adopted its zoning ordinance regulations for land development and use under the Michigan Zoning Enabling Act (“MZEA”). Use of property by a medical marijuana registered caregiver was permitted only under Byron Township Zoning Ordinance as a “home occupation.” Defendant also prohibited registered caregivers from the medical use of marijuana in a commercial property, and required medical marijuana caregivers to submit an application and pay a fee to obtain a township permit before engaging in any medical use of marijuana. In 2016, the township supervisor sent plaintiff a letter advising that plaintiff’s medical marijuana related activities constituted a zoning violation, and ordered plaintiff to cease and desist all medical marijuana activities under threat of an enforcement action. Plaintiff sued defendant for declaratory and injunctive relief on the ground that defendant threatened her exercise of her rights and privileges under the Michigan Medical Marihuana Act (“MMMA”), despite her compliance with the MMMA.

On appeal, defendant contends that the trial court erred by holding that the MMMA preempted its home occupation ordinance as it merely regulated land use by restricting the location of medical use of marijuana while allowing patients and caregivers to fully exercise their rights and privileges. The court noted that the MMMA provided immunity from arrest, prosecution, and penalty in any manner, and prohibited the denial of any right or privilege to qualifying medical marijuana patients and registered primary caregivers. This immunity also granted caregivers the right to possess 2.5 ounces of usable marijuana for each qualifying patient and cultivate and keep 12 marijuana plants for each qualifying patient in an enclosed, locked facility. The MMMA further set forth that “all other acts … inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.” The court determined that this explicit provision of the MMMA meant that if another law was inconsistent with the MMMA, such that it punished MMMA-compliant medical use of marijuana, the MMMA would control and the person would be immune from punishment.

Here, the court found that defendant’s zoning ordinance §§ 3.2.G and H improperly restricted the medical use of marijuana by permitting MMMA-compliant activities only as a home occupation within a dwelling or garage in residential zoned areas within the township. As such, Defendant’s prohibition against noncommercial medical use of marijuana by a caregiver within a commercial building effectively denied plaintiff, as a registered caregiver, the rights and privileges that MCL 333.26424(b) permitted. Furthermore, the court found that the enforcement of defendant’s home occupation ordinance would result in the imposition of sanctions against plaintiff that the MMMA did not permit. Thus, defendant’s zoning ordinance’s prohibition of registered caregivers’ MMMA-compliant medical use of marijuana in a commercial building was void and preempted by the MMMA.

Lastly, the court rejected defendant’s argument that the MMMA did not preempt its ordinance because the MMMA did not occupy the field of zoning. The record reflected that the trial court never based its ruling upon field preemption of zoning, nor did the trial court need to consider the field preemption doctrine. Instead, the trial court determined that doctrine was inapplicable to this case as the ordinance directly conflicted with the MMMA and was preempted for that reason alone. Accordingly, the decision of the trial court was affirmed.

Deruiter v Township of Byron, 2018 WL 3446236 (MI App 7/17/2018)

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