Dingeman Dancer

Municipal Zoning Laws Unlawfully Restrict Medical Marijuana Use

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Author: Dane Carey

On July 17, 2018, the Michigan Court of Appeals issued a major medical marijuana decision in DeRuiter v Township of Byron, holding that Michigan municipalities cannot restrict the location of lawful activities—such as the growing or providing of medical marijuana—under the 2008 voter initiated Michigan Medical Marihuana Act (“MMMA”) to residential areas only. The Court ruled that the MMMA takes priority over local zoning ordinances. This decision is premised on the well-established legal principle: An ordinance that purports to prohibit what a state statute permits is void.

Background

Under the MMMA, the “medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the provisions of this act.”[1] The term “medical use” is defined as follows:

[T]he acquisition, possession, cultivation, manufacture, extraction, use, internal possession, delivery, transfer, or transportation of marihuana, or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.[2]

The MMMA provides immunity from arrest, prosecution, and penalty in any manner, and prohibits the denial of any right or privilege to qualifying medical marijuana patients and registered primary caregivers.[3] Under the Act, caregivers have the right to possess 2.5 ounces of usable marijuana for each qualifying patient and to cultivate and keep 12 marijuana plants for each qualifying patient in an enclosed, locked facility.[4]

In this case, the plaintiff, Christie Deruiter, was a registered qualified medical marijuana patient and primary caregiver under the MMMA. Pursuant to requirements of the Act, she grew medical marijuana in an enclosed, locked facility in a commercial location within Byron Township.

Byron Township, the defendant, had a zoning ordinance that only allowed medical use of marijuana under the MMMA within areas zoned for residential use. The Township’s zoning ordinance expressly prohibited medical marijuana caregiver operations in commercial settings, regardless of whether a patient’s or caregiver’s medical use of marijuana fully complied with the MMMA.

Because the plaintiff’s operations were located in a commercial area, the township supervisor sent the plaintiff a letter, advising her that her medical marijuana-related activities constituted a zoning violation. In response, the plaintiff sued the Township, arguing that the defendant threatened her exercise of her rights and privileges under the MMMA, despite full compliance with the Act. According to the plaintiff, the Township’s zoning ordinance was attempting to prohibit what the MMMA permitted.

Decision

The Court of Appeals agreed with the plaintiff and held that the Township’s zoning ordinance was preempted by the MMMA. In so holding, the Court explained:

[T]he MMMA permits medical use of marijuana, particularly the cultivation of marijuana by registered caregivers, at locations regardless of land use zoning designations as long as the activity occurs within the statutorily specified enclosed, locked facility. No provision in the MMMA authorizes municipalities to restrict the location of MMMA-compliant medical use of marijuana by caregivers. Neither does the MMMA authorize municipalities to adopt ordinances restricting MMMA-compliant conduct to home occupations in residential locations. So long as caregivers conduct their medical marijuana activities in compliance with the MMMA and cultivate medical marijuana in an “enclosed, locked facility” as defined by MCL 333.26423(d) and do not violate MCL 333.26427(b)’s location prohibitions, such conduct complies with the MMMA and cannot be restricted or penalized.[5]

Based on this interpretation of the MMMA, the Court held that the Township’s zoning ordinance “improperly restricted the medical use of marijuana by permitting MMMA-related activities only as a home occupation within a dwelling or garage in residential zoned areas within the township.”[6] As such, the Township “plainly purported to prohibit the exercise of rights and privileges that the MMMA otherwise permits.”[7] Therefore, as a matter of law, the MMMA preempted (and thus made unenforceable) the Township’s zoning ordinance.  

Unless the Court’s decision in this case is overturned by the Michigan Supreme Court, municipal zoning and other ordinances that attempt to regulate the locations in which MMMA-compliant caregivers may operate are unenforceable. In the interim, there are a variety of questions that will likely arise related to MMMA-compliant operations in municipalities that have ordinance provisions regulating the permissible location of such activities.

If you have any questions or would like to learn more, please contact any of the medical marijuana attorneys at Dingeman & Dancer. Dane Carey can be reached my phone or email at (231) 929-0500 or dcarey@ddc-law.com.

Footnotes

[1] MCL 333.26427(a).

[2] MCL 333.26423(f).

[3] See MCL 333.26424(a) and (b); People v Hartwick, 498 Mich 192, 210-21 (2015).

[4] MCL 333.26423(d) in relevant part defines an “enclosed, locked facility” as “a closet, room, or other comparable, stationary, and fully enclosed area equipped with secured locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient.”

[5] Deruiter v Byron Twp, ___ Mich App ___, ___ (2018) (Docket No. 338972); slip op at 5.

[6] Id. at 5-6.

[7] Id. at 6.

 

 

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