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August 1 2018

Preemption of Zoning Authority Over Caregivers Under the Michigan Medical Marihuana Act

By: James F. Scales

On July 17, 2018, the Michigan Court of Appeals issued its opinion in DeRuiter v Township of Byron. The Court considered a local ordinance which permitted primary caregivers licensed under the 2008 voter initiated Michigan Medical Marihuana Act (“MMMA”) to operate only as a home occupation. The Court ruled that the MMMA preempted local regulation of the locations at which caregivers could operate.

When the MMMA first took effect, the Attorney General opined that operations of caregivers were subject to local zoning, and many communities throughout Michigan adopted zoning or other regulations regulating the permissible location of caregivers. Unless the DeRuiter decision is overturned by the Michigan Supreme Court, zoning and other ordinances which regulate the locations at which caregivers can operate are unenforceable.

The following are answers to some of the more frequently asked questions about the impact of the DeRuiter decision:

Will the decision be appealed? An Application for Leave to Appeal will be filed with the Michigan Supreme Court. However, the Supreme Court has discretion whether to consider the appeal or not. Even if it takes the appeal, the DeRuiter decision is still binding until such time as the Court might overturn the decision.

Do we need to change our ordinances?  Until the Supreme Court decides whether to take the case, and whether to affirm or overturn it if it does, we would not recommend that you amend your ordinance. If the Supreme Court does not take the case or affirms it, then at that point it might be appropriate to consider amending your ordinances to remove provisions for caregivers. If the ordinance is a part of your zoning ordinance, then amending it would require a planning commission public hearing, recommendation and final governing body action. There is no urgency to do this, and you could take it up in conjunction with other amendments.

What effect does this decision have on the location of medical marihuana facilities authorized under the new Medical Marihuana Facilities Licensing Act (“MMFLA”)? The 2008 voter initiated MMMA and the 2016 MMFLA are two separate laws. The MMFLA specifically provides that a medical marihuana facility may not be located within a community unless the community allows that type of facility. The DeRuiter decision has no impact on a community’s ability to decide whether or not to allow medical marihuana facilities licensed under the MMFLA.

Does the DeRuiter decision have any effect on the “Regulation and Taxation of Marihuana Act” on the November 2018 ballot?  No. Similar to the MMFLA, the 2018 ballot proposition would give each municipality the right to decide whether to prohibit or limit the number of marihuana establishments within its borders. (Unlike the MMFLA, the 2018 ballot measure does allow the citizens a right of initiative to either allow or prohibit marihuana establishments.)

Does DeRuiter preempt building codes?  The decision did not directly deal with this question, but we believe the answer is “no.” Construction of a building and the installation of plumbing, electrical and mechanical systems should remain subject to local permitting and inspection requirements.

What will be the impact of the DeRuiter decision?  The MMFLA and the ballot proposition both provide an alternate means of supplying marihuana. This might limit the demand for primary caregivers as a source of medical marihuana, but that is difficult to predict.

What should we do if a caregiver requests a zoning compliance permit?  We would not recommend that a zoning compliance permit be issued to avoid “grandfathering” claims if the DeRuiter decision is ultimately overturned. Under the DeRuiter decision, a zoning compliance permit is not needed for a caregiver to operate. In response to a request, the community could issue a letter to an applicant that says: “According to the Court of Appeals decision in DeRuiter v Township of Byron, the location of primary caregivers is not subject to local ordinance.”

If you have any questions, please call or email your primary contact at Mika Meyers or Jim Scales at (616) 632-8047 or .