Judge: Medical marijuana grow and dispensing operations are not above local zoning law
A Washtenaw County Circuit Court judge has ruled that the Michigan Medical Marihuana Act does not pre-empt local zoning laws regulating the production and distribution of the drug.
The ruling is significant because it’s the first court challenge to zoning laws regulating medical marijuana in the state, according to Dennis McLain, Ypsilanti Township’s attorney.
Previous court challenges have been against communities that have tried to outright ban medical marijuana use, production or distribution because it is still illegal at the federal level.
The ruling is part of a case against two Ypsilanti Township residents officials charge are pumping an “intense” medical marijuana odor out of their home that is resulting from some type of processing operation in their basement. Neighbors have complained about the odor, though the defendants deny it is an issue.
Officials say homeowners at 1397 Crestwood are growing more marijuana than is allowed per township zoning ordinance.
Tom Perkins | For AnnArbor.com
The township also charges the defendants, Michael Engle and Deborah Klochubar, are growing more medical marijuana than allowed under the township’s zoning laws.
According to state law, a person with a medical marijuana patient’s card can grow up to 12 plants for his or her 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. Klochubar's and Engle's home is in such a zone.
Eric Misterovich, attorney for Engle and Klochubar, argued that state medical marijuana laws pre-empt local ordinances, and the township’s zoning ordinances regarding medical marijuana are not enforceable.
The state law does not say where medical marijuana can and cannot be grown.
Misterovich asked Washtenaw County Circuit Court Judge Archie Brown to dismiss the case, but Brown disagreed with Misterovich's assessment.
“There are no provisions in the MMMA that prohibit municipalities from adopting zoning ordinances regulating where medical marijuana caregivers can grow and dispense marijuana for other patients,” Brown wrote in his ruling.
Misterovich did not return calls from AnnArbor.com. seeking comment.
“This is a significant issue; whether densely populated neighborhoods can be taken over by medical marijuana grow operations. We’re definitely fighting that to the end,” McLain said.
Tom Perkins is a freelance reporter for AnnArbor.com. Contact the news desk at 734-6232530 or news@annarbor.com
Comments
Atticus F.
Fri, Mar 8, 2013 : 3:13 p.m.
fume /fyo?om/Noun Gas, smoke, or vapor that smells strongly or is dangerous to inhale. Please stop refering to marijuana odor as a fume. It discredits your argument further.
Debbie K Engle-Eller
Fri, Mar 8, 2013 : 3:05 p.m.
It is important to note that the ordinance in this corrupt little burg also limits patients growing for themselves. When we were forced to sign the consent agreement at the point of a gun we were also forced to allow an inspection. We were told that no single residence can have more than 12 plants no matter how many patients live in or own the home. They came in and counted our plants and said if we are over 12 plants then we will be in violation of their ordinance and that we would be raided. Thus the township is LYING in this article too. Congratulations A2.com you are the local propaganda outlet for the government, you are now too big to fail!
Debbie K Engle-Eller
Fri, Mar 8, 2013 : 2:55 p.m.
This intellectually corrupt and lazy decision completely ignores the ordinancial disabling language of Section 7 of the MMMA. The judge is a lazy fool ignoring state law and passing the buck to the Appeals Court which is where this case is headed. They can fight all they want. They can lie about us in the press with the help of the lazy lousy author of this trash story but we ARE patients growing for ourselves and we are the victims of a witch hunt. The township has LIED and the Police have LIED and we now have affadavits from firemen and paramedics and neighbors showing that indeed the smell of a wild animal is being impugned to our property. Two facts to note about this article. The so called writer is engaging is speculation and there is only ONE neighbor complaining and he is complaining because we refused to be his caregiver or give him free cannabis. To wit. "Neighbors have complained about the odor, though the defendants deny it is an issue" There is only one complaining neighbor and several who have provided affadavits in support of our assertion that we are not producing any offensive odor. HOW is this statement repeated several times now by the "writer" NOT Speculative????"""that is resulting from some type of processing operation in their basement""" My husband and I are patients each with conditions resistant to treatment since Childhood. The township, with the threat of a raid while we were in court in front of Judge Pope forced (essentially At the point of a gun) to sign the Papers (consent agreement) despite their being NO allegations of any violations of law whatsoever. Judge Poop Failed his Judicial Duty when he did not ask us in open court if we had been coerced into signing anything (a procedural violation that is being revisited in our appeal by our attornies). Had we been asked we would have said YES, There is a gun to our head right now. to recap: There has never been an odor from this home. w
amlive
Fri, Mar 8, 2013 : 1:46 p.m.
Coming from someone in favor of just legalizing pot all together, I think this is a good and reasonable decision. Zoning rules still have to be for the interest of the neighborhood. If I want to raise chickens for fresh eggs for personal consumption, it's fair that I should be able to have a half dozen chickens in my yard. If I want to raise 60 chickens to sell eggs at the farmers' market, then I need to be in agricultural zoning, as it wouldn't be fair to neighbors to run a poultry farm in a close residential neighborhood. Simple, appropriate. Of course I keep hearing that the smell was only from "a passing skunk", so we'll see how it goes from here.
Billy
Fri, Mar 8, 2013 : 1:36 p.m.
"(state law) does not pre-empt local zoning laws" Ok...so since when can a local law supercede a state law...because that's what the judge just said.... HOWEVER.....we have a city ordinance for marijuana possession and that is regularly used instead of the state law. So I'm kinda confused as to the requirements as to which laws an officer is supposed to enforce...
Billy
Fri, Mar 8, 2013 : 2:26 p.m.
"Cannabis plant odors are not harmful or unpleasant" I've met plenty of people who say it smells bad. Smell and odor are entirely subjective. The thing is...I group people who say marijuana "smells bad" with the people who say "I'm allergic to it." No you're not...you're just saying that because you're scared of marijuana. You've never tried it and saying you're allergic gives you an "excuse" to avoid that peer pressure. Kinda like people who claim to be allergic to MSG...there's no such thing as an MSG "allergy." There is however sensitivity to MSG...and that occurs in roughly 2% or less of the population...so no...it's very unlikely that you're actually MSG sensitive... I mean....do you know where they get MSG for Aji No Moto? Seaweed... Know where you can find it naturally? Tomatoes... Glutamate is not only found in tons of things in nature...it's used in our bodies and brains as a neurotransmitter. You're not "allergic" to that...that'd be like saying you're allergic to insulin...
jamie
Fri, Mar 8, 2013 : 2:03 p.m.
Billy- yes, you are referring to this specific case. I was answering your broader question. I think the issue here is that, even though Theravada never ever any evidence that fumes were coming from the house, the defendants, probably under severe duress, stipulated that it was, then proceeded to argue that it was all right. Cannabis plant odors are not harmful or unpleasant, so it would have been difficult to label them noxious, even if it were established that fumes were actually coming from the home. You bring up another issue, though. What if I don't like the smell of your garden, your cooking, your laundry detergent etc. Can I now make a complaint that I will trust will result in action against my neighbors doing what is protected under state law?
Billy
Fri, Mar 8, 2013 : 1:56 p.m.
"the Act does not prohibit people from participating in the protected or defensible behavior in their homes either." It's no longer "in your own home" when you allow "fumes" and "odors" from inside your home to then leave both your home AND the confines of your own property. That's the whole issue here....something they are doing is encroaching onto neighbors properties.
jamie
Fri, Mar 8, 2013 : 1:49 p.m.
The decisions of priority and creating methods of building on the law can be done by the local governments, but they can not create a scenario that is more restrictive or prohibitive than what the state law provides. Bare minimum- participating patients and caregivers can participate in this activity in their own homes - this should be, although obviously not, a no-brained for the judge. A local government can provide ordinances to expand on this activity into commercial zoning or to make transfers between cardholders a low enforcement priority etc., but they can not, or should not be able to restrict what the state law provides for. The judge says that the Act does not prohibit local governments from being more restrictive from state law- it doesn't have to! the Act does not prohibit people from participating in the protected or defensible behavior in their homes either.
Homeland Conspiracy
Fri, Mar 8, 2013 : 1:23 p.m.
Who said they were?
jamie
Fri, Mar 8, 2013 : 1:38 p.m.
Despite the twp attorney's and Judge's perspective- the Court of Appeals has already ruled on this. Inexplicably, the ruling here is a contradiction to the law of the land which is that local government can not come between the participating patients and caregivers and the State law that has created protections and defenses for such behavior. The local ordinances that seek to stand in the way of what is allowed under State law, should have been ruled on differently here according to the current law provided by the Court of Appeals in VanTer Beek v The City of Wyoming. This is based on health care. A very significant majority of Michigan citizens and citizens of the U.S, approve of cannabis being a health care choice for those who may choose to use it. This is why the Act passed so handily in 2008 and continues to be supported by even higher numbers now, as the trend for support Nationally grows as well. We are witnessing some of the final death rattles of the prohibitionists. Unfortunately, they are willing to spend the hard earned tax dollars of the constituents who disagree with them, to force their own minority vision on everyone else. This will have to change.
jamie
Fri, Mar 8, 2013 : 1:04 p.m.
Kangaroo
Debbie K Engle-Eller
Fri, Mar 8, 2013 : 2:59 p.m.
The judge is intellectually lazy and passed the buck. The township has lied and engaged in forum and judge shopping. The police have lied. All true Americans (the few remaining) should be outraged whenever your tax dollars are used to defy YOUR votes.
Michigan Man
Fri, Mar 8, 2013 : 1 p.m.
How would you like to be buying your dope at that house? Medical Dope idea going nowhere fast and most everybody knows this. What good is the mind when it is as sharp as a beach ball? Just a overrated subject which most of America cares nothing about. Some bad ideas just need to go away.
mady
Fri, Mar 8, 2013 : 2:28 p.m.
yeah, tell that to my daughter who has had 4 back surgeries and uses this PLANT to manage her ongoing back pain(see: hatchet stuck in one's lower back)!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
John
Fri, Mar 8, 2013 : 1:45 p.m.
Yeah...we know you are just a shill for the pharmaceutical industry. "sharp as a beach ball"...what no comparison to bowling balls anymore?
Homeland Conspiracy
Fri, Mar 8, 2013 : 1:25 p.m.
Same old Propaganda speech... Can you move pass the Reefer Madness Propaganda. Please!
Tom Joad
Fri, Mar 8, 2013 : 11:27 a.m.
There's nothing green about growing marijuana except for the massive amount of cash being made off it. The electricity required to grow 72 plants a caregiver can legally have on premises amounts to at least $1000 a month in electricity alone. These grow lamps at 1000 w or 1 kw. Marijuana growers are contributing greatly to global climate change because the electricity has to be generated with fossil fuels, for the most part. Other ratepayers must also subsidize the cost of higher electric demand in the form of higher rates. The Michigan medical marijuana statute has been hijacked by profiteers. Evidently all the dispensaries in Ann Arbor and Ypsilanti are still open and charging $400 an oz. even though they have no legal basis in state law in which to operate. Even these two cities have become dependent on the 'easy' money facilitating the growing and selling marijuana
Billy
Fri, Mar 8, 2013 : 1:38 p.m.
"The electricity required to grow 72 plants a caregiver can legally have on premises amounts to at least $1000 a month in electricity alone." If you're running that much power...you're trying to grow a cup winning crop...you're not just growing to produce... Also....lol @ carbon footprint derp......
kmgeb2000
Fri, Mar 8, 2013 : 1:33 p.m.
Actually Amazon and others have LED low watt grow light panels to address the very issue energy consumption. Ah technology the cause of and solution to all life problems.