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Supreme Court Expands Local Government's Ability to Regulate Zoning of Medical Marijuana Caregivers

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Leslie A. Dickinson and Sarah J. Gabis
Foster Swift Municipal Law News E-blast
April 28, 2020

Marijuana and GavelThe Michigan Supreme Court has provided some important guidance on whether Zoning Ordinance regulations pertaining to the location of registered medical marijuana caregivers are preempted by the Michigan Medical Marihuana Act ("MMMA"), MCL 333.26421 et seq. In DeRuiter v Byron Township, a registered medical marijuana caregiver (DeRuiter) began growing marijuana in a building zoned commercial in violation of Byron Township's Zoning Ordinance. The Zoning Ordinance only allows caregivers to grow medical marijuana as a home occupation, with a permit, on property zoned residential. DeRuiter was otherwise compliant with the MMMA. The trial court held that the zoning regulations were preempted by the MMMA and the Court of Appeals affirmed finding that the ordinance improperly imposed regulations and penalties upon persons who engage in MMMA-compliant medical use of marijuana.

Yesterday, the Supreme Court reversed the lower court decisions holding that the MMMA does not nullify a municipality's inherent authority to regulate land use under the Michigan Zoning Enabling Act ("MZEA"), MCL 125.31010 et seq, as long as (1) the municipality does not prohibit or penalize the cultivation of medical marijuana and (2) the municipality does not impose regulations that are unreasonable and inconsistent with regulations established by state law.

In this instance, the MMMA requires that primary caregivers and qualifying patients keep their plants in an enclosed, locked facility in order to be entitled to MMMA protections. Since enclosed, locked facilities may be found in various locations on various types of property, a municipal zoning ordinance limiting where medical marijuana may be cultivated within the locality does not directly conflict with the MMMA's requirements. Further, the Township's regulations requiring a caregiver to obtain a permit and pay a fee before using a building or structure to cultivate medical marijuana do not conflict with the MMMA because the ordinance does not effectively prohibit the medical use of marijuana. 

The Supreme Court held in abeyance two other similar cases, pending the decision in DeRuiter. See Charter Township of York v Miller, Michigan Supreme Court Docket No. 157527, (order issued January 23, 2019) and Charter Township of Ypsilanti v Pontius, Michigan Supreme Court Docket No. 158816 (order issued April 30, 2019). In Miller, 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 and in Pontius, the township’s ordinance prohibited medical marijuana dispensaries and nurseries as home occupations in single family residential districts. It is anticipated that these cases will be resolved consistent with the Court’s decision in DeRuiter.

This decision, and the ones to come in Miller and Pontius, will have significant statewide impacts which enable local governments to regulate where medical marijuana caregiver activities may occur within their jurisdictions and allow for local permitting and fee requirements as long as they are reasonable and do not effectively prohibit the cultivation of medical marijuana.

If you have questions about the DeRuiter case, medical marijuana regulations, or the impacts of this opinion on your community, please feel free to contact a member of the Foster Swift municipal practice group.