Judge: Case against homeowners charged with pumping 'intense' medical marijuana odor can go forward
The township alleges the homeowners at 1397 Crestwood Ave. are pumping medical marijuana fumes out of their basement.
Tom Perkins | For AnnArbor.com
Ypsilanti Township’s case against a man officials charge has been pumping strong medical marijuana fumes out of his house will be heard by a Washtenaw County Circuit Judge.
A defense attorney for Michael Engle and Deborah Klochubar asked Judge Archie Brown to dismiss the case, but that motion was denied.
The township says Engle is in violation of its noxious fumes ordinance because of the “intense” odor that has disrupted neighbors’ lives. Township officials have stressed that the issue doesn’t have to do with medical marijuana laws but zoning ordinances regulating what kind of odors can be omitted in the township.
Officials allege Klochubar and Engle are processing medical marijuana in some way that produces fumes that are pumped out of their basement window through an exhaust system and towards a neighbors’ home.
Police and township officials say they have smelled the odor outside the home at 1397 Crestwood Ave. on multiple occasions, and presented affadavits from neighbors who said they smelled it.
In a separate case, the township charges that Engle and Klochubar are in violation of the township’s zoning laws regarding growing of medical marijuana.
According to state law, a person with a medical marijuana patient’s card can grow up to 12 plants for their personal use. Ypsilanti Township ordinance allows residents to grow their personal plants in residential zones.
But state law says registered caregivers can grow up to 72 plants for up to five patients and their own personal use. Ypsilanti Township's zoning ordinance doesn’t permit caregivers to operate in residential zones.
Eric Misterovich, attorney for Engle and Klochubar says that state medical marijuana laws pre-empt local ordinances, and the township’s zoning ordinances regarding medical marijuana are not enforceable.
Judge Brown will take that question under advisement, and a trial date of Aug.12 has been set for the noxious odor case.
Although the two cases are separate, Misterovich said they are tied together, and medical marijuana producers' emissions can't be regulated.
That ruling could have wide-ranging consequences across the state as officials are not aware of any other case in the state where zoning ordinances regulating medical marijuana growing activities have been challenged.
“When there is a direct conflict between state law and local law, state law is upheld,” Misterovich said.
The noxious fumes zoning ordinance states that the "creation of offensive odors shall be prohibited" in any zone. Mike Radzik, director of the office of community standards, said the odor coming out of the home constitutes an offensive order, and a district court judge has already agreed.
Neighbors first began complaining in March of 2012 and Engle and Klochubar were cited. On May 8, 14-B District Court Judge Charles Pope ordered Engle and Klobuchar to abate the odor. Engle admitted that there was a disruptive odor being pumped from the home by entering into a consent agreement, Township attorneys says.
Officials say that agreement with the 14-B District Court has gone ignored.
Misterovich said he presented affadavits from other neighbors on the street that said they don't smell any odors. And, regardless of the smell, Misterovich underscored that he feels the state laws pre-empt the noxious fumes ordinance, so the odor can't be regulated.
Ypsilanti Township attorney Dennis McLain says he is pleased with the rulings so far.
“It’s a huge plus for the township as far as we’re concerned,” he said. “The township is moving forward.”
Tom Perkins is a freelance reporter for AnnArbor.com. Contact the news desk at 734-623-2530 or news@annarbor.com.
Comments
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 10:36 p.m.
the odor is of a passing skunk and is not nor was it EVER coming from this house. WE agreed to the District Court consent Agreement At The POINT OF A GUN!!!!! never any odor this is A witch hunt by MICHAEL RADZIK FORMER COP AND ARDENT PROHIBITIONIST.
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 10:32 p.m.
the complaining homeowner needs to move back to the trailer park in wasteland where there are no wandering skunks in the local woods and parks. This story is FALSE and they are FALSELY ACCUSED. the reporter is a propagandist and lazy lousy writer who could not be bothered and has never once attempted to contact the principals in this case in any manner yet he continues to falsely assert that he did try to contact us. He knows of the events of 1/21 when officer morrison assaulted our home at 5am with her "mistaken" assertions of Marijuana Odor being released when it was the odor of a passing skunk. He could have spoken to the firemen and paramedics and neighbor who witnessed officer morrison and yee. this story is propaganda and part of a patient witch hunt by the LIARS, mike radzik and brenda stumbor of Ypsilanti Township.
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 9:16 p.m.
it has been determined that the odor is not coming from this residence. it is the odor of a passing Skunk not The Skunk. They are patients.
Justin Palmatier
Mon, Feb 25, 2013 : 4:23 p.m.
This is insanely ignorant. These people are going through this because they are pumping the smell of "FLOWERS" outside their house? You do realize that's whats going on!? How can anyone complain about this?
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 9:27 p.m.
it is the odor of a passing skunk that officer morrison et al have mistaken for cannabis growing. WE are patients and WE are falsely Accused by our government, ONE neighbor who attempted to extort us and this "reporter" (propagandist/sensationalist)
Nic
Mon, Feb 25, 2013 : 2:48 p.m.
I'm allergic to grass cuttings, I want my neighbors arrested. Annarbor.com do you really think it's right for you to post peoples home addresses? I hope everyone at annarbor.com can sleep if something bad was to happen to these folks. These people are still innocent until proven guilty, why would you put them in harms way!!!?
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 9:29 p.m.
hey kyle your propaganda rag friends in long island published public record GUN OWNER records. Look up to see what happened to that Publicly posted information. Public Record and Publicly Posted are two different states and therefore to stretch your analogy from one to the other is morally and ethically false and similar to comparing apples and oranges
sesomai
Mon, Feb 25, 2013 : 6:30 p.m.
@Kyle - just because you can doesn't mean you should.
Kyle Mattson
Mon, Feb 25, 2013 : 4:42 p.m.
Hi Nic, the address is public record from the court case.
HENDRIX242
Mon, Feb 25, 2013 : 1:27 a.m.
It is interesting to note that many assume it's the fumes from smoking marijuana, not the fumes of marijuana growing under lights in a basement. 2 completely different things. Smoking tobacco, is completely different from being around growing tobacco plants. We better shut down those rose gardens & control all the milkweed.
amlive
Mon, Feb 25, 2013 : 1:13 a.m.
Some creative spin in the comments here, dare I say rivaling the 'logic' of comments I'd expect to read on Fox News. If I don't like the smell of my neighbor's garden, I probably don't have a case. If they turn their whole yard in to a corn field running tractors and spreading industrial amounts of manure however (and the property is not zoned agricultural), that would be different. If I don't like the smell of my neighbor's cooking, generally that will be my problem. If they're running an exotic catering service from their home that leaves my clothes and furniture smelling like curry or durian fruit, then I could probably make them stop. If someone smokes tobacco on their front porch and it wafts over to my house when the wind is right, well that's life and if I don't like it I should find a more secluded home. If they have poker parties with 12 men smoking cigars every night and I can't see the end of my arm through the smoke, I may actually have a case. If a septic pipe bursts next door, of course I can't sue the neighbors for the temporary stench. If they start a septic cleaning business however, and store the sludge in a tank in their back yard, you bet the city could shut them down. If my neighbor has three dogs who occasionally bark or urinate on my fence, I probably don't have any recourse. If they turn their home in to a boarding house however, and the noise and smell are out of hand, then yes the city can shut them down if it's not zoned for this. If I refinish my kitchen table and the neighbors have to deal with a few days of sanding dust and lacquer blowing in to their yard, I doubt they could do anything about it. If I start spraying lacquer at home on a regular basis for customers however, I could probably get in trouble. Reasonable expectations, personal vs commercial enterprise, scale, zoning, undue effects on neighbor's quality of life - yes there can be some gray area here, but my bet here is with the township winning the case.
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 9:30 p.m.
you assume there is truth to this propaganda and thus your pretty words are worthless.
Dog Guy
Mon, Feb 25, 2013 : 12:42 a.m.
A halfway decent neighbor would strap two 10' lengths of 4" PVC hubbed drainpipe ($7.26 @ Home Depot) to 20' up his backyard antenna tower for a vent which bothers nobody. My considerate next-door neighbor of 45 years ago vented his mash and his still up a chimney.
Nic
Mon, Feb 25, 2013 : 2:52 p.m.
If you researched this story a bit you would find out that the smell the officers smelled was an actual skunk, but because there is marijuana involved it becomes a issue. These folks run filtration systems and air scrubbers. They however can't control mother nature.
amlive
Mon, Feb 25, 2013 : 1:16 a.m.
Agreed. If the neighbor had some halfway decent courtesy and put just a bit of effort in to being a considerate neighbor, this probably never would have become an issue.
EyeHeartA2
Mon, Feb 25, 2013 : 12:59 a.m.
"A halfway decent neighbor would"..... Goggle the address.
Paul
Mon, Feb 25, 2013 : 12:26 a.m.
Odors are why you can not have livestock in the city. People need to respect others...or move to a rural area
Wolf's Bane
Mon, Feb 25, 2013 : 12:18 a.m.
its called a drug house... or Dealer.
Bill Wilson
Mon, Feb 25, 2013 : 12:16 a.m.
We went though this, and continue to, in my hobby. Quick FYI: I do a lot of BBQ cooking. I have been trained by 3 World Champions, and in the 40 some years I have been cooking Q, I have gotten to know many in the BBQ world, so to speak. Every so often, one of my brother's neighbors decides that he/she doesn't like the smell of smoking meats, and tries to involve the law. The only time this has worked in the courts, and my brothers were forced to stop cooking or make changes to their exhaust, was when the neighbors had medical reasons (diseases related to breathing, etc) that prohibited any change to the oxygen in and around their homes. If the neighbors have a medical reason behind their complaint, this homeowner will lose this case.
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 9:33 p.m.
the complaining homeowner needs to move back to the trailer park in wasteland where there are no wandering skunks in the local woods and parks. This story is FALSE and they are FALSELY ACCUSED.
Paul
Mon, Feb 25, 2013 : 12:30 a.m.
Yeah, sometimes you can be a jerk and the courts can not stop you. Now for a BBQ, that be harder to prevent the smoke from drifting over. Pot smoking isn;t the same and BBQ is not a drug. If my neighbors smoke Meth and it so happen to be legal, they better still be certain that smoke didn;t drift over to my place.
silo
Sun, Feb 24, 2013 : 9:02 p.m.
"But state law says registered caregivers can grow up to 72 plants for up to five patients and their own personal use." OK; so that stands. But the issue could be: 1) that the production process in a residential area. Is this deemed a business (even if non-profit)? I assume if I were cooking garlic, fish etc at food service level, or tanning leather at a consumer level, these would be considered a business and would have applicable regulations too. 2) that the fumes may have a health impact. What are the health / physical impacts from inhaling marijuana fumes? If it has an effect on health, then I assume it should be regulated, too - being that neighbors have the right NOT to be medicated.
Huron74
Sun, Feb 24, 2013 : 5:53 p.m.
I can smell my neighbor's cancerette smoke when she smokes on her front porch in the warm weather months. Will the AA city attorney's office help me with that?
Paul
Mon, Feb 25, 2013 : 12:32 a.m.
Have you ever complain. Sometimes peaceful negotiations can be reached
Tru2Blu76
Sun, Feb 24, 2013 : 5:49 p.m.
Moderator: please email me & explain reasons for deleting this & 1st post. There is no constitutional protection which reads: "The right of the people to grow, process, bale and smoke pot shall not be infringed." There's no validity in the claim which says "Any business can be declared a "caregiver" who can decide on what "medicines" and "therapies" are valid and necessary. If there is, then just wait for the "caregiver" who decides skunk musk is a valid therapy for their "patient." Let's leave off on the lame attempts to re-define words, shall we? Just look at how the "caregiving" provided by "caregiver" Dr. Jack Kevorkian turned out. Ordinances which contradict state laws cannot stand. But then we realize that ordinances can be made state laws if they're truly accepted and useful to and protect the majority. Guarding property values stands - it's accepted and no homeowner can be made to unwillingly face loss of their property value - by actions of another homeowner who's profiting by growing and processing pot. All this smells a bit like the case against cigarette smoking, doesn't it? We know how that turned out. The pumper of fumes loses. When a "necessary" medicine is found - the universal process does NOT involve the creation of basement factories next door. It's turned over to licensed and regulated manufacturers and the discoverer is paid through patent fees. The 'necessary' medicine is then distributed through prescriptions written by actual certified doctors and by actual certified pharmacies. When a "necessary" medicine is found, there's no need to redefine words to mean something new and "more authoritative." There's a difference between our physician saying, "I think you need this prescription." and the neighbor who says, "Hey, man, I think you need some ganja."
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 9:34 p.m.
you assume truth in this story and there is no truth. The odor is of a Passing Skunk. and your posts are deleted for a very good reason.
EyeHeartA2
Mon, Feb 25, 2013 : 12:58 a.m.
@dading dont delete me bro Testify brother. The long arm of the foreign outsourced arbitrary enforcers came down on me for no apparent reason. Tim Hortons must have run out of donuts or something.
dading dont delete me bro
Sun, Feb 24, 2013 : 8:29 p.m.
removal seems to be quite arbitrary. they lean on their guidelines when pushed int a corner. i have flagged, multiple times, the same off topic comment, yet it seems to remain and my 'flag' comment gets removed...?
jamie
Sun, Feb 24, 2013 : 5:21 p.m.
There is nothing poisonous, or harmful, or unpleasant, for that matter, concerning the odor of marijuana plants. This is an obvious witch hunt. Particularly, since several immediate neighbors have come forward to state that it has not been an issue there. It is also a natural by-product of the protected activity the defendant is engaged in. I am sure that a significant majority of Ypsilanti Twp, and Washtenaw County residents would like to see better use of their tax dollars than this nonsense.
jamie
Mon, Feb 25, 2013 : 3:10 p.m.
The case out of Wyoming is a published Court of Appeals decision, and is the law of the land- please research if necessary. While it is based on an attempt to ban activity by hiding under Federal law, the judges made it clear that local governments may not interfere with the patients and caregivers participating in the program and relying on the protections and defenses that MMMA created when passed in 2008. If the judge determines that the Twp is correct, it will open up an unnecessary can if worms, as many have described here- you don't like the smell of my vegetable garden, my cooking, the laundry detergent I use? You can now sic the Twp on me. If it does win in circuit court, it will lose in the Court of Appeals where this issue has already been decided on.
craigjjs
Mon, Feb 25, 2013 : 1:51 p.m.
amlive: I agree with your analysis but would add that the Wyoming case is not precedent in Michigan and does not in any way govern or limit a Michigan decision.
amlive
Mon, Feb 25, 2013 : 1:34 p.m.
Michigan Reader - a brief glance at that case leaves me to believe it does not apply here at all. In that case the city seemed to be attempting a ban on growing medical marijuana all together. These cases in Ypsi Twp seem quite different. The first is a quality of life issue for neighbors and reasonable expectations not to have to deal with constant heavy stench (sorry, grow operations do stink pretty bad Jamie). This is not marijuana specific, and could be equally applied to other oderous crops if they were being done on a large enough scale in a residential neighborhood. The other case here is a zoning issue. Now if the township's zoning does not allow medical marijuana to be grown anywhere (personal or commercial/caregiver), then the Wyoming precedent probably would apply. If zoning specifically prohibits commercial/caregiver growing in residential zoning but allows it in agricultural/commercial/industrial, then it sounds like it would be a fair regulation that would not be in violation of the mentioned decision. I don't k ow the full details of either case, but it seems they could indeed be quite different.
Michigan Reader
Mon, Feb 25, 2013 : 1:03 a.m.
@jamie--I looked at the case you cited, and again at the Medical Marihuana Act, and it looks like you're right about the manufacture of pot. I'm not so sure about the creation of noxious fumes, though.
jamie
Sun, Feb 24, 2013 : 9:57 p.m.
Michigan Reader- Not true. What you describe is the affirmative defense section of the Act, section 8. The protections that the defendants have are found in section 4.
Michigan Reader
Sun, Feb 24, 2013 : 9:32 p.m.
The Medical Marihuana law only prohibits prosecution of patients and caregivers in the assistance of the MEDICAL USE of pot; these guys' actions fall outside the protections of the act. There is no conflict with state law in the townships ordinance, nor does the state law completely envelope the subject matter regulated by the township, the production of noxious fumes, and it's the same situation with the violation of the ordinance regulating the location of commercial production. The state law is narrow on these points. It offers protection only for the medical use of pot, or the assistance by a caregiver of the use of pot.
Basic Bob
Sun, Feb 24, 2013 : 4:25 p.m.
Application of this ordinance could also prevent a resident from cooking garlic, fish, or chitlins and then exhausting the odors out a standard kitchen exhaust fan. Many people find these to create noxious odors as well.
Paul
Mon, Feb 25, 2013 : 12:34 a.m.
Yes, why when that family from India moved in to my old neighborhood, they were not like very much...and no, it wasn;t because of their race but that cooking smell
jamie
Sun, Feb 24, 2013 : 5:31 p.m.
Exactly- excellent illustration of the absurdity happening here.
amlive
Sun, Feb 24, 2013 : 2:04 p.m.
I don't see how this defendent and their attorney can possibly believe they have a case. To my knowledge, there is nothing involving zoning in any State marijuana laws which could conflict with or supercede local zoning or codes regarding commercial production or emissions. The township does not seem to be claiming that this person can't grow pot, but only that they cannot stink out the neighbors in a residential district. Invest in a better filtering / ventilation system (if there is one), or find another location for your production. Surely if they've been growing enough to make this much stink for so long they have made enough money to invest in a more secluded property and pole barn. They say your right to wave your fists ends at the other guy's nose, and I'm assuming the courts will find the same applies to your right to make massive stink in a residential, non-commercial, non-agricultural zoned neighborhood.
Debbie K Engle-Eller
Mon, Feb 25, 2013 : 9:37 p.m.
the odor is of a passing skunk and is not nor was it EVER coming from this house. WE agreed to the District Court consent Agreement At The POINT OF A GUN!!!!! never any odor this is A witch hunt by MICHAEL RADZIK FORMER COP AND ARDENT PROHIBITIONIST.
johnnya2
Sun, Feb 24, 2013 : 10:39 p.m.
Is your position that I can stop a person from using tobacco in their home if their smoke comes into my yard? Can a person who has a septic tank problem be fined a pipe bursts and you can smell it? How about if you run your lawn mower and I smell gasoline which I find offensive. Maybe I do not like your rose bush emitting an odor that makes me sick to my stomach. THis is an OBVIOUS end run around the MMML.
jamie
Sun, Feb 24, 2013 : 5:28 p.m.
Sorry, if you don't like the smell of your neighbor's garden that is perfectly allowable under state law, you can move, but you can not use a local ordinance to trump those rights- In terms of this specific issue, it has already been decided in the Court of Appesls in Ven Ter Beek v The City of Wyoming. A local government can not get in between patients and caregivers and their protections afforded by the MMMA.
amlive
Sun, Feb 24, 2013 : 3:38 p.m.
Just for the record, I have nothing against people growing, smoking, eating marijuana, and wish we would just cut to the chase and legalize it proper with regulations. This case has nothing to do with that though, but rather is about violation of local codes designed to ensure one neighbor does not infringe upon others right to enjoy their own back yard. You can take up tanning leather or refinishing furniture as a hobby if you like, but if you're doing it on such a scale or with insufficient care and control so that it significantly affects your neighbors enjoyment of their own life on their own property, then you're in violation of code. I can't see how this could be any different, or that somehow they could think that right to grow would somehow include exclusive rights to ignore regulations that apply to all other hobbies or business.
GoNavy
Sun, Feb 24, 2013 : 1:13 p.m.
"Caregivers." "Medicine." "Patients." End the charade. Legalize pot.
stevek
Sun, Feb 24, 2013 : 5:44 p.m.
Go ahead and legalize pot. Until then, it is illegal.
GoNavy
Sun, Feb 24, 2013 : 1:30 p.m.
@Tom- No more than what we tax tobacco or alcohol sales, and in exactly the same way (no chained value added chicanery).
Tom Todd
Sun, Feb 24, 2013 : 1:28 p.m.
With a 30% TAX.