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Many townships have been following legal developments under the MMMA since its 2008 enactment. The Michigan Supreme Court just decided a case that further clarifies the options available for local regulation of medical marihuana. Although townships now clearly cannot impose a total ban on medical marihuana uses and activities, the Supreme Court has left open the possibility for townships to regulate aspects of medical marihuana. This E-Letter explains the Court’s decision and discusses the available options for regulation.  

Townships Cannot Totally Prohibit Medical Marihuana

Since the passing of the MMMA by a 2008 voter referendum, the Michigan Courts have been interpreting various aspects of the Act. If you’ve been following our E-Letters on this subject, you will know that we have strongly advised townships to adopt reasonable local regulation of medical marihuana under zoning and other public health and safety ordinances. We have also advised against reliance on total bans of medical marihuana, since we questioned whether such bans would be valid. Earlier this month, the Michigan Supreme Court confirmed our advice by invalidating a city’s total ban on medical marihuana. Ter Beek v City of Wyoming, Michigan Supreme Court (February 6, 2014).

The city’s ordinance banned any use of marihuana that was prohibited by other federal or state laws. The ordinance thus totally banned medical marihuana because the federal controlled substances act prohibits the use, manufacture or cultivation of marihuana. Despite this, however, the MMMA provides state-law immunity from arrest and prosecution for medical marihuana use in compliance with the MMMA. The quandary presented was how could the city ordinance be wrong if it simply applied federal law? Doesn’t the federal law control over the state MMMA?

In addressing these questions, the Supreme Court held that both the MMMA and the federal controlled substances act apply. Although at first glance they might seem contradictory, the federal government and state government have independent authority with separate police, enforcement agencies and court systems. The federal law prohibits all marihuana use, but the MMMA allows an exemption from prosecution under state marihuana laws for those who act strictly in accordance with the MMMA.

The Supreme Court explained that the state cannot be compelled to enforce the federal act. The regulation of marihuana by the states is separate and distinct from the regulation of marihuana use by the federal government. The MMMA provides immunity only against state prosecution, not federal prosecution, and has no effect on the federal law or inpiduals prosecuted under it. The state and federal statutes operate in separate spheres of government, so the MMMA does not conflict with or alter the federal government’s right to regulate marihuana under federal law. Practically speaking, a person using marihuana for purposes described in the MMMA is still violating the federal law and is still subject to federal prosecution, but that is for the federal government to pursue in any case.

Since the federal law and the MMMA may coexist, the Supreme Court turned to the validity of the city’s ordinance. The ordinance’s complete ban on marihuana use (by enforcing the federal law over the MMMA) directly conflicted with the MMMA. Since a local ordinance cannot directly conflict with a state statute, prohibit an activity permitted by statute, or permit an activity prohibited by statute, the Supreme Court found the city’s ordinance invalid. A complete ban of marihuana use is not permitted under the MMMA.

Townships May Still Regulate Medical Marihuana

If your township has previously relied on a total ban of medical marihuana, you can still refocus your approach to regulating medical marihuana. The Supreme Court was careful to explain that, although local governments may not totally ban uses permitted by the MMMA, that does not mean they may not reasonably regulate the use of medical marihuana. The Court stated:

“Contrary to the City’s concern, this outcome does not ‘create a situation in the State of Michigan where a person, caregiver or a group of caregivers would be able to operate with no local regulation of their cultivation and distribution of marijuana.’ Ter Beek does not argue, and we do not hold, that the MMMA forecloses all local regulation of marijuana . . . .”

The Supreme Court leaves open what specific local regulation is permissible. Future cases will develop what specific local regulations may be permissible. One option available to townships to reasonably regulate MMMA activities is to control the location and setbacks of such uses under the township’s zoning ordinance. This can include limits on zoning districts where MMMA uses are permitted, limiting the number of patients or caregivers in a single building, limiting the number of plants that can be grown before special conditions must be met, requiring special use permits for certain MMMA uses, and imposing distances between MMMA uses and other incompatible uses, such as schools, churches, day-care centers, libraries and parks. See our prior July 2011 E-Letter:  2011 July Township Law E-Letter.pdf

We Can Help

Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, work with townships to help develop strategies to achieve the best balance of public health, safety, and welfare in your Township, and to balance the perceived statewide demand for avenues for medical marihuana use under the MMMA. Please contact our office if you need any assistance in drafting, amending, or implementing a medical marihuana ordinance in your township.

— William K. Fahey wfahey@fsbrlaw.com

— Christopher Patterson cpatterson@fsbrlaw.com

Click here for a PDF version of this publication.

Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 130 years of experience in township law, and have represented more than 130 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.