Agenda - Planning Commission - 05/03/2018

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March 25, 2018 I Volume 12 I Issue 6 Zoning Bulletin Township's zoning regulation prohibiting outdoor growing in residen- tial areas. The MMMA governs medical marijuana use in Michigan. It allows the "medical use" of marijuana, including its "cultivation." Specifi- cally, it permits registered caregivers to cultivate 12 marijuana plants for each qualifying patient in an "enclosed, locked facility" including outdoor growing, as specified in MCL 333.26423(d). The trial court ruled that the Township's Zoning Ordinance's restric- tion on outdoor growing of marijuana directly conflicted with the MM- MA's specific permission of outdoor marijuana cultivation. The trial court ruled that the Township could not exclude outdoor marijuana cultivation because the MMMA permitted doing so. The Township appealed. On appeal, the Township argued that it had broad zoning authority under Michigan's Zoning Enabling Act ("MZEA") to adopt ordinances to regulate medical marijuana and re- strict registered caregiver's marijuana growing to indoors in areas zoned residential. DECISION: Judgment of Circuit court affirmed. The Court of Appeals of Michigan disagreed with the Township, and held that the Township's Zoning Ordinance's restriction on outdoor growing of marijuana could not be enforced because it directly conflicted with the MMMA's specific permission of outdoor marijuana cultivation. The court explained that a municipal "ordinance that purports to pro- hibit what a state statute permits is void." In other words, when a local regulation directly conflicts with a state statute by prohibiting what the state statute permits, the state statute preempts the local regulation, said the court. Furthermore, the court explained that contrary to the Township's argument, the zoning authority given to municipalities under the MZEA did not save the Township's ordinance from preemption. Again, the court noted that the MMMA "permit[ted] and thereby au- thorized] registered caregivers to grow medical marijuana for their patients both indoors and outdoors without fear of imposition of penal- ties by a local government." Thus, the court found that the Township's home occupation Zoning Ordinance § 40.204 "plainly purport[ed] to prohibit the outdoor growing of medical marijuana that the MMMA otherwise permit[ted]." Consequently, the court concluded that the Township's Zoning Ordinance § 40.204 was preempted by the MMMA and void. See also: Ter Beek v. City of Wyoming, 297 Mich. App. 446, 823 .N.W.2d 864 (2012), judgment aff'd, 495 Mich. 1, 846 N.W.2d 531 (2014). 4 © 2018 Thomson Reuters