Zoning Cases to Watch

Imagine that you are the head of your municipality and you receive a frantic call from a constituent. The constituent says “Hey, Mr. Supervisor- I live in a residential subdivision and my next door neighbor is growing 72 marijuana plants in his backyard! I thought he couldn’t do that unless there was an ordinance allowing it? What are you going to do about it?”

What are you going to do about it? What can you do?

Assuming your constituent’s neighbor is actually a licensed medical marijuana primary caregiver and is growing marijuana for his qualified patients in accordance with the Michigan Medical Marihuana Act* (“MMMA”), the Court of Appeals has basically said there is nothing your municipality can do about it.

However, the Michigan Supreme Court is at least entertaining the idea of considering that question more carefully and has asked the Michigan Townships Association (MTA), the Michigan Municipal League (MML), the Government Law Section of the State Bar and any other persons or groups interested in the issue to weigh in. On January 23, the Supreme Court in the case of DeRuiter v Township of Byron, _____ Mich App ____, (2018)(Docket No. 338972), (Decided July 17, 2018) entered an order directing oral argument be scheduled on Byron Township’s Application for Leave to Appeal to decide this issue: Does the MMMA preempt a municipality’s ability under the Michigan Zoning Enabling Act, (“MZEA”)¹ to designate where a medical marijuana caregiver may cultivate medical marijuana?

The Court of Appeals, in that case and in two others this past year, decided against municipalities and said yes, it does. The law in this area can be confusing and your constituent above is correct, to some extent.

Both the Medical Marihuana Facilities Licensing Act (Act 281 of 2016) (“the Facilities Act”) and the newly adopted Michigan Regulation and Taxation of Marihuana Act (Initiated Law 1 of 2018)(“Law 1”), provide a municipality with specific authority to regulate through zoning where the cultivation of marijuana under those acts can occur.²

The MMMA, however, does not and this is precisely the issue the Michigan Court of Appeals has struggled with, particularly over the last twelve months.³ In each of these cases, the Court of Appeals held that the municipality could not enforce its zoning ordinance because the ordinance conflicted with the MMMA.

In York, the township’s ordinance prohibited the cultivation of medical marijuana outside of the requirements of its home occupation ordinance, which required all activity to occur indoors.

In DeRuiter, the township’s ordinance prohibited the use of medical marijuana in a commercial location and in Pontius, the township’s ordinance prohibited medical marijuana dispensaries and nurseries as home occupations in single family residential districts.

In each of these cases, the Court of Appeals decided against the townships and held their ordinances preempted by the MMMA. As discussed above, however, the Michigan Supreme Court will hear argument on Byron Township’s Application for Leave to Appeal.

In an order delivered the same day as its order in DeRuiter, the Court held in abeyance York Township’s Application for Leave to Appeal, indicating its decision in DeRuiter may in fact resolve it.⁴ As for Pontius, it’s simply too early to know what the Court may do, however it would not be surprising if the Court held Ypsilanti’s Application in abeyance as well, given the similarity in issues.

You may wonder why these cases are so important to municipalities in light of a municipality’s ability to zone medical marijuana facilities under the Facilities Act and recreational marijuana facilities under Law 1. It seems the existence of these two laws may take care of the issue.

However, the answer is not quite that simple, and the existence of these two statutory schemes does not prohibit a qualified patient or primary caregiver from cultivating medical marijuana in their backyard in a residential district if they otherwise comply with the MMMA.

Consider this scenario: under the MMMA, a qualified patient may grow up to twelve (12) marijuana plants for his own medical use.⁵ In addition, a primary caregiver may grow up to twelve (12) plants for himself (if he is also a qualified patient) as well as five (5) other qualified patients.⁶

This means that a primary caregiver can cultivate up to seventy-two (72) marijuana plants inside or outside at his residence, so long as his activity complies with the MMMA. Theoretically, this amount could increase if more than one primary caregiver resides in a single location. The Facilities Act does not prohibit this activity, as it specifically excludes primary caregivers from license eligibility.⁷

Neither does Law 1, as it expressly states the Act does not limit any privileges, rights, immunities, or defenses of a person as provided under the MMMA.⁸

Accordingly, if the person is a primary caregiver and is growing medical marijuana in accordance with the MMMA, the current state of the law prohibits a municipality’s interference with regard to location. At this point in time, and until the Supreme Court makes a decision related to the Application for Leave to Appeal in DeRuiter v Township of Byron, there is little a municipality can do in response to the question posed above, if Mr. Neighbor is otherwise compliant with the MMMA.

Please contact any member of Foster Swift’s Municipal Practice Group if this topic is of interest or concern to your municipality, or if you’d like our attorneys to advocate your municipality’s interests as amicus curiae in the Michigan Supreme Court in the case of DeRuiter v Township of Byron. Contact Sarah Gabis at 248.785.4744 or at sgabis@fosterswift.com.

Sarah helps public entities address the wide array of issues they regularly face, including zoning and land use enforcement, Freedom of Information Act (FOIA) questions, Open Meeting Act (OMA) matters, intergovernmental agreements and sewer and water contractual issues and related litigation.

*Marijuana is typically spelled with a “J” but is spelled with an “H” when referring to the title of the Michigan statute or act.

¹ MCL 125.3101 et seq.

² See MCL 333.27205(1) and MCL 333.27956(1) and (2).

³ See Charter Township of York v Miller, ___ Mich App ____ (2018)(Docket No. 335344)(Decided January 18, 2018); De Ruiter v Township of Byron, ___Mich App ___(2018)(Docket No. 338972)(Decided July 17, 2018) and Charter Township of Ypsilanti v Pontius, Unpublished per curiam opinion of the Court of Appeals, issued October 30, 2018, (Docket No. 340487).

⁴ See Charter Township of York v Miller, Michigan Supreme Court Docket No. 157527, order issued January 23, 2019.

⁵ MCL 333.26424(a).

⁶ MCL 333.26424(b)(2) and MCL 333.26426(d).

⁷ See MCL 333.27501(8)(b).

⁸ See MCL 333.27954(2).