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Regulating Caregivers: What Your Township Can Do

Recent cases from the Michigan Supreme Court and the Court of Appeals have affirmed the authority of townships to regulate Primary Caregiver growing operations under the original Michigan Medical Marihuana Act from 2008 (“MMMA”). Under the MMMA, a caregiver can grow up to 72 plants with minimal state regulation on their activity. Although less intensive than the several hundred plants and full scale retail operations available to businesses under more recent legislation, growing by caregivers can still be an intrusive land use. In this e-letter, we will review the MMMA, the recent decisions from Michigan courts, and consider some locational regulations townships should consider to promote harmonious land uses in their jurisdictions.

Remembering Where We Started: Patients and Caregivers in 2008

The 2008 Michigan Medical Marihuana Act, MCL 333.26421 et seq. (“MMMA”) allows qualifying “patients” to use medical marihuana and “caregivers” to grow medical marihuana on behalf of patients. MCL 333.26421, et seq. Each patient can keep up to 12 marihuana plants in an enclosed, locked facility and can possess 2.5 ounces of marihuana. MCL 333.2424. Under the MMMA, a medical marihuana “caregiver” can grow on behalf of up to five patients (plus themselves) for a maximum of 72 plants. MCL 333.26426(d) and MCL 333.26424(a). The MMMA does not allow for commercialization or largescale growing of marihuana. In 2014, the Michigan Supreme Court held that a municipality cannot completely prohibit patients and caregivers. Ter Beek v City of Wyoming, 495 Mich 1 (2014). But, the Court left undecided what regulations a township might be able to create with regard to the location and operation of marihuana caregivers’ plants.

Since the Ter Beek case in 2014, we have seen the commercialization of not only medical marihuana (the 2016 Medical Marihuana Facilities Licensing Act, MCL 333.27101 et seq. (the “MMFLA”)), but also of adult use marihuana (the 2018 Michigan Regulation and Taxation of Marihuana Act, MCL 333.27951 et seq. (the “MRTMA”)). These two acts impose specific regulations on marihuana businesses and allow townships significant control through opting-in or opting-out. For those that permit such facilities or establishments, townships can also impose further regulations consistent with the acts. The MMFLA and MRTMA do not extinguish marihuana activities by caregivers and patients, however. Instead, such activities remain only regulated under the original 2008 act.

The Courts Affirm Local Control of Caregivers and Patients

Although caregiver and patient activities are not heavily regulated by the state’s Marijuana Regulatory Agency (“MRA”), the Michigan Supreme Court affirmed municipal zoning regulations as a valid exercise of a municipality’s police power. In DeRuiter, the Michigan Supreme Court considered a local zoning ordinance that required primary caregivers to grow medical marihuana for other patients only at a full-time residence and entirely within the dwelling or attached garage. The ordinance also required caregivers to submit a zoning application with information about the marihuana use, pay a fee, and obtain a permit. The zoning provisions reviewed did not authorize growers as a permitted use by right or special use within any commercial districts. DeRuiter, 505 Mich at 136-137.

Christine DeRuiter, a qualified patient and primary caregiver under the MMMA, cultivated marihuana in a rented property in a commercial district. The grow operation was inside an “enclosed, locked facility” required under the MMMA. As she had not obtained zoning approval, Byron Township filed suit asserting the grow operation violated the ordinance because it was not a home occupation. The trial court and Court of Appeals initially ruled for DeRuiter and against the township. Id. at 135-138.

The Supreme Court reversed the lower court’s decision and held that there was no direct conflict between the ordinance’s location and zoning permit requirements and the provisions of the MMMA. Municipalities retained their inherent authority to regulate land uses via zoning. Id. at 147. The MMMA concerns the “type of structure” in which marihuana may be grown but “does not speak to where marihuana may be grown.” Id. at 143 (emphasis in original).

The Court made a clear distinction with the ordinance passed by the City of Wyoming in the earlier Ter Beek case. While the Court reaffirmed that a township may not prohibit caregiver operations entirely, they declared that a municipality may “add to the conditions” in the state statute. Id. at 142, 144-145. Reasonable restrictions that enlarge provisions of state regulation do not directly conflict with the state statute and simply “add to” the state regulation already in place. The significant take away for townships is that the MMMA does not nullify municipal land use authority under the Zoning Enabling Act. Id. at 147. As long as the zoning or geographical restriction does not prohibit all medical marihuana, but rather adds to or complements the MMMA, then it is likely to be upheld. As seen in the Byron Township ordinance, a township may also require primary caregivers to obtain a permit and pay a fee before undertaking cultivation of medical marihuana, as they may do for other conditional uses under a zoning ordinance.

The Supreme Court’s strong support for local zoning signals that municipalities may impose reasonable regulations in other marihuana contexts.

The Courts Continue to Uphold Local Ordinances

Following the Supreme Court’s decision regarding DeRuiter, the Court of Appeals reconsidered two township cases. In Charter Township of Ypsilanti v Pontius, issued December 29, 2020 (unpublished), the Court of Appeals considered a zoning ordinance that required caregiver operations occur solely in industrial districts. In Charter Twp of York v Miller, issued January 28, 2021, (published) the Court of Appeals considered a zoning ordinance that prohibited outdoor growing. In both cases, the Court upheld the local ordinance.

The Ypsilanti ordinance is at the opposite end of the spectrum from the Byron Township ordinance. In Byron, the township required caregivers to grow within their homes as a home occupation. In Ypsilanti, caregivers were not permitted as home occupations and could only grow in the light industrial district with a special use permit. In this case, Judith Pontius grew marihuana for herself and other patients in her home; Ypsilanti charged her with a violation of the zoning ordinance. Considering the holding in DeRuiter, the Court of Appeals upheld Ypsilanti’s zoning ordinance as a “locational restriction.” Pontius, unpub at 9-10. By upholding a location restriction in the light industrial district, the Court of Appeals strongly supported fundamental zoning enforcement: placing certain land uses into appropriate districts.

The Court of Appeals also considered whether a township could require marihuana to be grown indoors. In York Township, their ordinance prohibited the outdoor growing of medical marihuana in all zoning districts. Following the Supreme Court in DeRuiter, the Court of Appeals held that an ordinance that “prohibits the outdoor cultivation of medical marijuana” does not conflict with the MMMA and is valid. York, slip op at 3.

Neither of these cases were appealed. Both confirm the zoning and special use requirements of local zoning ordinances.

What may Townships do if marihuana activities related to patients and caregivers are creating unintended consequences?

Place the Use in Zoning Districts. At its most essential, courts have upheld the fundamentals of zoning: locating and controlling land uses via zoning districts. Each community is unique and is likely to identify different appropriate districts. Under current precedent, townships may regulate the location of growing in zoning districts appropriate for the community.

Utilize Special Use Permits. Typically, marihuana uses will be allowed as special uses. This incorporates additional review for the unique nature of this land use. Along with generally applicable special use permit requirements, it also provides a framework for additional regulations addressing this particular land use.

Control Odor. Zoning ordinances generally provide that any land use must control offensive odors. This is of particular concern with marihuana cultivation, including the non-commercial cultivation of a caregiver’s 72 plants. A township could require specific odor control technology or allow a broad range of available odor control technologies.

Control Lighting. Lighting can likewise be generally and specifically addressed. Just as with other special land uses, lighting should be appropriately directed, shielded, and glare reduced.

Building, Electrical, and Other Permits. A caregiver must secure all other permits that would typically be required for their land use. Often this means that many caregiver activities conducted within a structure will require, building, mechanical, electrical, and plumbing permits to ensure compliance with the State Construction Code.

The Supreme Court and the Court of Appeals have affirmed that municipalities retain their local control over land uses within their jurisdictions. Just as local governments must be consulted before undertaking a commercial marihuana operation, caregivers must also abide by applicable rules, regulations, codes, and local ordinances. As the courts have held, each community may regulate based on their own unique situations and needs.

 

Upcoming Webinars

Regulating Caregivers: What Your Township Can Do | Wednesday, June 23, 12 – 1 p.m.

Recent cases from the Michigan Supreme Court and the Court of Appeals have affirmed the authority of townships to regulate Primary Caregiver growing operations under the original Michigan Medical Marihuana Act from 2008 (“MMMA”). Growing by caregivers can be an intrusive land use, from odor impacts to proper electrical set up for grow lights. In this webinar, we will review the recent decisions from the Michigan courts, consider some regulations townships should consider, and answer your questions.

Click here to Register!

This publication is intended for educational purposes only. 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.

Copyright © 2021 Fahey Schultz Burzych Rhodes PLC

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