A decision handed down this week by the Michigan Court of Appeals could offer some clarity for the state’s municipalities as they evaluate land use and zoning policies for the medical marijuana industry.
The case, DeRuiter v. Byron Township, upholds a lower court ruling that municipalities in Michigan can’t restrict activities such as the growing or providing of medical marijuana as simply a “home occupation” under the Michigan Medical Marihuana Act (MMMA), adopted by voters in 2008.
The opinion handed down Tuesday morning affirms past cases that state law — in this case, the MMMA — trumps local zoning policies.
“Defendant (Byron Township) argues that the trial court erred by holding that the MMMA preempted its home occupation ordinance because it merely regulated land use by restricting the location of medical use of marijuana while allowing patients and caregivers to fully exercise their rights and privileges. We disagree,” the Court of Appeals wrote in its opinion.
The decision was applauded by local medical marijuana advocates.
“We think (the DeRuiter opinion) is an important case because it continues to validate the rights of caregivers to engage in activity under the MMMA, free from government interference,” said Robert Hendricks, a cannabis business attorney with Grand Rapids law firm Wrigley Hoffman & Hendricks PC.
Plaintiff Christie DeRuiter, a registered primary caregiver under the MMMA, grew medical marijuana in a facility that met the requirements of the act and operated her business in a commercial location within Byron Township in southwestern Kent County, according to the Court of Appeals opinion.
In March 2016, Byron Township officials informed DeRuiter that operating a medical marijuana business in a commercial zone was in violation of the township’s zoning policy and ordered the plaintiff to cease and desist, setting off a lengthy legal process leading up to Tuesday’s opinion.
Byron Township Supervisor Tom Hooker told MiBiz he was “disappointed” by the Court of Appeals decision and wouldn’t rule out appealing the case to the Michigan Supreme Court, pending discussions with the township’s board, legal counsel and residents.
Hooker noted that township residents had expressed their opposition to medical marijuana within the municipality through its vote to opt out of the Michigan Medical Marijuana Facilities Licensing Act (MMMFLA), a separate law adopted in 2016 to address many of the issues left out of the MMMA. He added that he wasn’t sure the costs of an appeal would outweigh the benefits of continuing to fight the decision.
Byron Township has until Aug. 28 to decide whether to appeal, he said.
The decision by the Court of Appeals comes at a time when another Kent County municipality is trying to address zoning and land use issues for medical marijuana under the MMMFLA.
The City of Grand Rapids is working to adopt an ordinance that would permit medical marijuana businesses such as provisioning centers, growers, secure transporters and processors, as MiBiz previously reported.
At issue are two competing sets of recommendations that seek to address the scope and scale the industry could have in the city.
In an email on Thursday afternoon, Suzanne Schulz, the city’s managing director of design and development, wrote that the Court of Appeals opinion handed down this week has “no impact on the proposed ordinances that we have been working on except that we will be deleting medical marihuana caregivers as a home occupation and relying on the MMMA.”
While the appeals court opinion offers some added clarity to the law, Hendricks noted that he envisions the amount of caregivers operating under the initial MMMA to diminish over time as the facilities act takes hold.
The state’s recent licensing scheme offers a greater sense of professionalization and greater convenience to medical marijuana patients in the state, he said.
“Because we’re going to a regulated marketplace, it’s my opinion that we’ll probably have fewer caregivers than we did when that was the only way to (operate) before,” Hendricks said. “As a practical matter, I think patients will choose to get their meds from a licensed, regulated provider.”