Agenda - Planning Commission - 05/03/2018

Home

Zoning Bulletin March 25, 2018 I Volume 12 I Issue 6 MICHIGAN (01/18/18)—This case addressed the issue of whether the Michigan Medical Marihuana Act (MCL §§ 333.26421 to 333.26430) permitted outdoor medical marijuana growing, and, if so, whether it preempted a township's zoning regulation prohibiting out- door growing in residential areas. The Background/Facts: David Miller and Donald Miller resided at Donald's home in a residential zoning district in York Township (the "Township"). Both were qualified medical marijuana patients under Michigan law. Katherine Null ("Null") had formerly been in a long- term 'relationship with David. Null was David's registered medical marijuana primary caregiver under Michigan law. In 2014, at Null's direction, David constructed a medical marijuana structure in Donald's backyard "for containing the cultivation of medical marijuana" for patients connected to Null through registration under the Michigan Medical Marihuana Act ("MMMA"), MCL §§ 333.26421 to 333.26430. At some point, the Township learned that the Millers and Null (col- lectively, the "Defendants") had built their medical marijuana facility outdoors, and that the Defendants had failed to comply with Township zoning and construction regulations in doing so. In the Township, medi- cal marijuana caregivers were required to comply with the Township's Zoning Ordinance § 40.204, which restricted home occupations and home -based businesses. Zoning Ordinance § 40.204 permitted medical marijuana caregivers to operate as a "home occupation" if they complied with the MMMA and certain specified 'restrictions. Among other things, § 40.204 required that all medical marijuana be contained inside the house in residential zoned areas, and prohibited medical marijuana caregivers from having or growing any medical marijuana outside the house on properties zoned residential. The ordinance also required permits for modification of any portion of the house for cultivation, growing, or harvesting of marijuana. The Defendants failed to comply with the Township's Zoning Ordinance § 40.204 because they grew medical marijuana outside and not entirely within Donald's house. The Defendants also failed to obtain a construction permit for the medical marijuana outdoor growing facil- ity, and failed to get permits before installing related electrical and watering systems. Instead of enforcing the Zoning Ordinance regulations against the Defendants, the Township filed a declaratory judgment action. The Township asked the trial court to determine the validity of its zoning regulations as applied "to the cultivation and use of medical marijuana in zoned residential locations and subdivisions." Specifically, the court was asked to determine whether the MMMA permitted outdoor medi- cal marijuana growing, and, if so, whether the MMMA preempted the © 2018 Thomson Reuters 3