Posted by: Patricia Salkin | May 16, 2019

MI Appeals Court Holds Zoning Ordinances Enacted by City were Preempted by the Michigan Medical Marihuana Act

This post was authored by Matthew Loeser, Esq.

Defendant Bezy resided in Warren and grew marijuana in his home, for his own use and for the use of his patients, in accordance with the MMMA. Plaintiff cited defendant for three ordinance violations, all arising from his marijuana operation. Two of these violations arose from Warren Zoning Ordinance, § 5.01(m). This ordinance, which applied to the R-1-A, single-family residential district, prohibited marijuana production and storage unless a number of requirements are satisfied. the district court held that the ordinances were preempted by the MMMA, and dismissed the citations, and the circuit court affirmed.

On appeal, plaintiff and amici curiae argued that the lower courts erred in finding that there was a direct conflict between the MMMA and the city’s ordinances. Specifically, they alleged that the city’s ordinances, which did not fully ban medical marijuana use and only added certain safety restrictions, could coexist with the MMMA. The court found that 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. Moreover, no provision in the MMMA authorizes municipalities to restrict the location of MMMA-compliant medical use of marijuana by caregivers, nor did the MMMA authorize municipalities to adopt ordinances restricting MMMA-compliant conduct to home occupations in residential locations.

As the city ordinances at issue added “a layer of restrictions and regulations” that restricted defendant’s cultivation of medical marijuana, the court held that the ordinances directly conflicted with the MMMA and could not be enforced.

City of Warren v Bezy, 2019 WL 2146275 (MI App. unpub. 5/16/2019)

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