MARIJUANA LAW UPDATE: ZONING OUT – MICHIGAN COURT OF APPEALS HOLDS THAT ZONING ORDINANCE AGAINST MEDICAL MARIJUANA IS PREEMPTED BY THE MICHIGAN MEDICAL MARIJUANA ACT

Attorney Mark B. Davis

In Deruiter v. Township of Byron, on July 17, 2018 (Docket No. 338972) the Michigan Court of Appeals affirmed a grant of a Motion for Summary Disposition in favor of a “caregiver” as defined in MCL § 333.26423. The Court held that the Defendant Township’s zoning ordinance conflicted with provisions of the Michigan Medical Marijuana Act (MMMA) and was therefore preempted.

Byron Township passed a zoning ordinance which classified “caregiver” as a home occupation. The Plaintiff was a registered caregiver who used a part of a commercial building to grow plants both for her and for other patients who had registered Plaintiff as a caregiver. The Byron Township ordinance effectively prohibited caregiver activities in commercial buildings. The Court held that the 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.”

This decision is consistent with past Court of Appeals published decisions on similar state law preemption issues, such as Ter Beek v City of Wyoming, 294 Mich App 446, 452 (2012). In 2010 after the MMMA became law, the City of Wyoming enacted an ordinance which prohibited any land use that was contrary to federal law. This effectively banned medical marijuana within the City, as marijuana remains classified as a “Schedule 1” drug under the Federal Controlled Substance Act (CSA). The Michigan Supreme Court held that the MMMA was not in conflict with the CSA, and that the zoning ordinance, which was clearly intended to keep out medical marijuana, was pre-empted by the MMMA. The Court held that any such zoning restrictions against the use of medical marijuana, like the one in Deruiter, are pre-empted by the MMMA and invalid.

Overall, municipalities have not been successful in enacting zoning or other ordinances that limit or prohibit the use of medical marijuana to the extent that the ordinances are inconsistent with the MMMA. Nevertheless, there is a general consensus among legal practitioners that private restrictions against the use of medical marijuana, such as those contained in Declarations, Master Deeds and Condominium/HOA Bylaws, are effective and enforceable, since they are in the nature of a contract between the homeowners (or co-owners, in the condominium context). Private restrictions can also offer communities protection against the use of recreational marijuana if the legalization proposal that is currently on the ballot for this November is successful. Association boards may wish to consider amending their governing documents now in order to be fully prepared for the inevitable onslaught of marijuana-related issues and questions that will no doubt arise if Michigan legalizes recreational marijuana use.

Mark B. Davis is an associate attorney with the firm.  He has extensive experience in community association law and has been with the firm since 2007.  Mark served honorably in the U.S. Army, achieving the rank of Sergeant as an infantry soldier.  His particular expertise in community association law includes marijuana law, collections, litigation (both federal and state), Fair Housing matters, and bankruptcy law. He is a member of the Marijuana Law Section of the State Bar of Michigan and frequently conducts seminars for community association organizations (such as UCOM) as well as the ZDF Condo & HOA B.E.A.T. Program on the subject.  You can reach Mark at our Plymouth office at 734-459-0062 or via email at mdavis@zdfattorneys.com.

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