Can Zoning Ordinances Stunt Cannabis Growth?

Earlier this year, the Michigan Supreme Court issued an opinion that provides guidance to municipalities as to how far they are able to regulate cannabis activities through zoning.  And, apparently, it’s pretty far.  

In DeRuiter v. Township of Byron, the plaintiff, Christie DeRuiter had rented a commercial facility in order to grow medical cannabis for herself and several patients for whom she was a licensed caregiver. The Township of Byron issued a cease and desist letter to her landlord to stop all cannabis cultivation on the property based on its zoning ordinance that only permitted caregivers to cultivate medical marihuana as a “home occupation,” meaning that it had to be grown and used in a dwelling, rather than in a commercial facility. The ordinance also required a permit to cultivate cannabis for non-personal use.

DeRuiter filed a complaint seeking declaratory and injunctive relief, asserting that the ordinance was preempted by the Michigan Medical Marihuana Act (MMMA) and unenforceable. The township countersued, seeking to have the court declare its ordinance valid and, further, to abate the nuisance.  The trial court and appellate courts both ruled in favor of DeRuiter and the Township appealed to the Michigan Supreme Court.

An ordinance may be preempted by state law when there is a clearly stated intent in the law to preempt local ordinances (express preemption), where the ordinance  directly conflicts with state law (conflict preemption), or when the state has so occupied the field of regulation that further supplementation is deemed unnecessary (field preemption).

In DeRuiter, the Supreme Court declined to consider express preemption because that issue was not raised by DeRuiter. It also declined to address field preemption because although it was raised by DeRuiter, it was not the basis of the lower court’s ruling. Therefore, the only preemption issue addressed by the Supreme Court was conflict preemption; in other words, whether the ordinance permitted what the statute prohibited or whether it prohibited what the statute expressly allowed.

Based on this standard, the Supreme Court found no direct conflict between the township’s ordinance and the MMMA. The Supreme Court distinguished prior cases where the it had struck down ordinances that were essentially a ban, rendering it impossible to use medical marihuana in the municipality without being subject to a civil penalty, noting that the township’s ordinance did not prevent all use or cultivation. 

The Supreme Court then reasoned that the MMMA condition of an “enclosed, locked facility” specifies the type of structure required; it does not address property zones or locations. The Supreme Court concluded that the MMMA does not preclude land regulation by a municipality, as long as the regulation does not prohibit or penalize all cultivation and the regulations are reasonable and consistent with state law. The Supreme Court also held that the township’s requirement of a permit and fee were not shown to be so unreasonable as to conflict with state law.

The question of whether the immunity provisions of the MMMA and related statutes are sufficient to give rise to a finding of field preemption was left for another day, but at present, municipalities are now able to regulate cannabis through zoning with more confidence based on the DeRuiter decision.

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