Posted by: Patricia Salkin | January 31, 2021

MI Appeals Court Holds Zoning Ordinance at Issue Did Not Directly Conflict with the Medical Marihuana Act

This post was authored by Matthew Loescher, Esq.

This appeal followed the circuit court declaration that plaintiff’s zoning ordinance, to the extent that it prohibited the outdoor growth of medical marijuana in all zoning districts, conflicted with the Michigan Medical Marihuana Act (“MMMA”) Michigan Medical Marihuana Act.

 According to the Supreme Court, in DeRuiter v. Byron Twp., 505 Mich. 130; 949 N.W.2d 91 (2020) the Supreme Court held that a zoning ordinance could directly conflict with the MMMA if it prohibited or penalized all medical marijuana cultivation. The zoning ordinance in this case did not prohibit or penalize all medical marijuana cultivation, but instead allowed primary caregivers to cultivate medical marijuana – albeit placing limitations on where a caregiver may cultivate the marijuana. The second way in which the court found an ordinance could directly conflict with the MMMA is when it imposes regulations that are unreasonable and inconsistent with regulations established by state law.

The court noted that the zoning ordinance here was very similar to the defendant township’s ordinance in DeRuiter. Specifically, both ordinances permitted the cultivation of medical marijuana by primary caregivers as a “home occupation” and required that the caregiver cultivate the marijuana inside a residence. Since the Supreme Court concluded in DeRuiter that the defendant township’s ordinance did not directly conflict with the MMMA, the court held that there was no direct conflict between the Zoning Ordinance and the MMMA in this case.

Because the ordinance did not prohibit or penalize all cultivation of medical marijuana, and it did not impose regulations that were unreasonable and inconsistent with the regulations established by the MMMA, the case was reversed and remanded.

Charter Township of York v Miller, 2021 WL 297449 (MI App. 1/28/2021)

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