By: Zelmanski, Danner & Fioritto

On April 27, 2020, the Michigan Supreme Court decided the case of DeRuiter v Byron Township, Supreme Court No. 158311.   Ms. DeRuiter was a registered caregiver under the Michigan Medical Marijuana Act (“MMMA”), MCL §333.26421 et seq.   Pursuant to the terms of the MMMA, a caregiver can assist medical marijuana patients in the growing and processing of marijuana for their particular medical condition.  In exchange, each patient that is served by the caregiver transfers their right to grow their own marijuana to the caregiver.  A caregiver can support up to 5 patients and themselves if they qualify, and they are authorized to grow 12 plants per patient (up to a maximum of 72 plants).  A caregiver is allowed to be reimbursed for their costs to produce marijuana for their patients.

Ms. DeRuiter, not wanting to grow the marijuana plants in her residence, secured a lease on a commercial unit for her purposes.  The unit was appropriately situated in a commercial zone according to Byron Township’s zoning ordinance.

Byron Township had amended their zoning ordinance and classified caregiver activity as a home occupation.  The ordinance required that the home occupation be conducted “entirely within a dwelling or attached garage.”  In addition, the Byron Township ordinance required that the caregiver acquire a license.  After being warned that her caregiver activity in a commercially zoned building was a nuisance per se and that she needed a license, Ms. DeRuiter declined to move her marijuana plants or get the appropriate license.

Instead of complying with the Byron Township Ordinance, Ms. DeRuiter filed a lawsuit in the Circuit Court asking for a declaratory judgment stating that the zoning ordinance was pre-empted by the MMMA:

The MMMA states, in pertinent part, that a qualifying patient “is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action . . . for the medical use of marihuana in accordance with this act[.]” MCL 333.26424(a). The MMMA also provides the same immunity to a primary caregiver in “assisting a qualifying patient . . . with the medical use of marihuana in accordance with this act.” MCL 333.26424(b).

DeRuiter v Byron Township, MI Supreme Court No. 158211

Ms. DeRuiter contended that the Byron Township zoning ordinance deprived her of her right to grow marijuana under the MMMA.  The Circuit Court ruled in favor of Ms. DeRuiter.  Byron Township appealed, and the Court of Appeals confirmed the Judgment of the Circuit Court.  Both courts confirmed that the MMMA preempted the Michigan Zoning Enabling Act and therefore the Byron Township zoning ordinance was void.

The Judgment of the Circuit Court was based on an early Michigan medical marijuana case, Ter Beek v Wyoming; the Supreme Court in DeRuiter, in fact referred to the case as “Ter Beek II.”  A brief summary of Ter Beek is as follows: shortly after the MMMA was passed, the City of Wyoming amended its zoning ordinance to state that any land use that conflicted with federal law was prohibited under the zoning ordinance.   This effectively prohibited any use of, cultivation or possession of marijuana in the City of Wyoming, since marijuana is a “Schedule I” controlled substance pursuant to federal statute.  The Michigan Supreme Court eventually held that the MMMA in that case preempted the Michigan Zoning Enabling Act because it effectively prevented the use, cultivation, or possession of medical marijuana in the City of Wyoming completely and totally.

In DeRuiter v. Byron, the Michigan Supreme Court, by comparison, held that a municipality was entitled to enact reasonable restrictions on the production of marijuana under the MMMA.   In the legal world “reasonable” is a loaded term, and the parameters of “reasonableness” under DeRuiter are yet to be defined.  At the very least, we do know that limiting such caregiving to a residential home occupation (and location) and the requiring of a license is permitted under DeRuiter.

While the impact of the DeRuiter ruling on any particular dispute over medical marijuana use and cultivation is not certain, what is certain is that the legal result in each case will be greatly determined by whatever actions are or have been taken by the particular municipality in which the affected parties live.  My “crystal ball” tells me that many municipalities will take advantage of this opportunity under DeRuiter to enact what they consider to be “reasonable” regulation of medical marijuana production and cultivation. Some of these regulations will survive, while others may ultimately be struck down by a higher court as “overreaching” through litigation.

The other significant aspect of the DeRuiter ruling is that while many condominium associations prohibit “business uses” or “commercial activity” completely within their premises, many make exceptions for home occupations that do not unduly disrupt neighborhood/community life. There is an extensive line of cases that define what activity might qualify as an allowable “home business” in residential condominium and HOA settings.  For example, home day-cares have been allowed in some circumstances despite the extra traffic that they often produce. The outcomes in these cases have been very “language specific” meaning the prevailing party is usually the one that can better justify their activities as being “non-commercial” or “residential” in view of the particular language of their bylaws or declaration of restrictions (as the case may be).  In condominium and HOA communities where “home businesses” are allowed, I believe that a “caregiver” could potentially fit into the category of home businesses that are allowable.  Acting as a caregiver that provides or cultivates medical marijuana is low traffic activity, and (other than smell), it is not inherently intrusive – the marijuana must be cultivated in a secure, locked facility under the MMMA.

One final note, nothing in the DeRuiter ruling affects recreational marijuana under the Michigan Regulation and Taxation of Marijuana Act (“MRTMA”).  An individual may grow up to 12 plants for personal use under the MRTMA.

If private marijuana cultivation is a concern for your association, then you most assuredly should consider further action, such as amending your governing documents to expressly prohibit the growing of marijuana in your condominium/HOA in order to prevent the potential problems that may accompany the growing of marijuana plants.

Our attorneys have extensive experience in drafting document amendments to prohibit the use, cultivation, and/or smoking of marijuana in community associations.  Please contact us to discuss these and other possible solutions for any marijuana-related issues you may be encountering in your community.

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