Posted by: Patricia Salkin | September 9, 2020

Fed. Dist. of MI Holds Owner Did Not Have a Constitutionally Protected Property Interest with a Special Use Permit for a Medical Marijuana Facility

This post was authored by Matthew Loescher, Esq.

Plaintiff Exclusive Brands LLC sought a special use permit to operate a medical marijuana facility in Garden City, Michigan. Plaintiff Exclusive Brands LLC brought this action for injunctive, declaratory, compensatory, and punitive relief pursuant to 42 U.S.C. § 1983 for alleged violations that Defendants Garden City and a number of its municipal entities and employees unlawfully denied it a special use permit to operate a medical marijuana facility in Garden City, Michigan. As it pertains to this case, the State of Michigan’s Medical Marihuana Facilities Licensing Act (“MMFLA”) enables a municipality to decide whether to allow marijuana facilities within the municipality by adopting an ordinance.

Plaintiff first claimed that it suffered from Defendants’ “disparate treatment of plaintiff from similarly situated applicants” because Defendants had not informed Plaintiff of the six-month moratorium prior to the implementation. Despite this, Plaintiff failed to provide any facts explaining how other special use permit applicants were similarly situated to Plaintiff, or explaining who these similarly situated applicants were. Accordingly, the court dismissed Plaintiff’s equal protection claim.

The court next noted that pursuant to Garden City’s ordinance § 154.416, a decision to approve or deny a special use permit application was subject to complete discretion of the Planning Commission and the City Council. Here, the City Council denied Plaintiff’s special use permit application pursuant to this complete discretionary authority. As such, Plaintiff did not have a constitutionally protected property interest with a special use permit for a medical marijuana facility. Accordingly, the court dismissed Plaintiff’s substantive due process claim against Defendants Garden City, City Council, and Sloan.

Lastly, Plaintiff contended that Defendants violated procedural due process under the Fifth Amendment of the U.S. Constitution and Article 1, § 17 of the Michigan Constitution “by denying Plaintiff a public hearing and an opportunity to be heard before defendant Garden City’s Planning Commission and other governmental bodies.” However, the public record of the City Council’s meeting minutes indicated that the City Council heard Plaintiff’s appeal on December 3, 2018. As Plaintiff failed to establish the existence of a protected property interest with regards to the special use permit for a medical marijuana facility, the court also found that Plaintiff failed to plausibly allege a viable procedural due process claim.

Exclusive Brands, LLC v City of Garden City, Michigan, 2020 WL 5367331 (ED MI 9/8/2020)

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