Posted by: Patricia Salkin | September 29, 2019

Fed. District Court in MI Dismisses Claims Arising from Special Land Use Permit Medical Marijuana Provisioning Facility

This post was authored by Matthew Loeser, Esq.

Plaintiff Jack Rayis owned the Plan B Wellness Center, a medical marijuana provisioning facility. In April 2017, a competing medical marijuana provisioning facility intended to open fifty feet away from Plan B. This new facility applied for a special land use permit and for a waiver of certain zoning requirements. The City of Detroit’s Zoning Appeals Board approved the new facility’s application, and Plan B appealed to the Wayne County Circuit Court, which vacated the Board’s approval and ordered a new hearing. The Board again approved the permit and zoning waiver, Rayis filed this §1983 civil rights action on behalf of himself and Plan B.

Despite Plaintiffs’ allegation that the Board’s bias constituted a denial of a property or liberty interest, the only alleged interest in the Board’s decision was that “approving the request for a waiver could severely impair Plaintiffs’ business if the Corporate Defendants were allowed to open and operate directly across the street from Plaintiffs’ business.” Here, pursuant to Michigan state law, “a party’s financial interest in stifling competition posed by the development of neighboring properties is not a legally protected interest” in the context of a zoning appeal. Thus, Plaintiffs failed to allege any valid interest in the Board’s decision. Accordingly, Plaintiffs’ procedural due process claim was dismissed.

Plaintiffs next made a First Amendment retaliation claim, alleging that the City Defendants approved the Corporate Defendants’ application a second time due to the Plaintiffs’ successful appeal to Wayne County Circuit Court. As with the due process claim, because Plaintiffs failed to allege any recognized interest in the Board’s decision, their appeal could not be found to constitute protected activity. Thus, Plaintiffs’ First Amendment retaliation claim likewise failed.

Plaintiffs lastly contended that the Corporate Defendants conspired with the City Defendants to retaliate against them for the exercise of their First Amendment rights. The court found that Plaintiffs again failed to make sufficient factual allegations to show that the alleged objective of the conspiracy was to deprive Plaintiffs of their constitutional rights. The court therefore granted the City Defendants’ motion to dismiss.

Plan B Wellness Center, LLC v City of Detroit Zoning Board of Appeals, 2019 WL 3322359 (ED MI 7/24/2019)

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