May a Township Regulate Primary Caregiver Operations Under the Original 2008 Michigan Medical Marihuana Act? > Fahey Schultz Burzych Rhodes
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May a Township Regulate Primary Caregiver Operations Under the Original 2008 Michigan Medical Marihuana Act?

April 2020

Yes. Very recently the Michigan Supreme Court reversed lower court decisions and held that zoning ordinances are valid under the Michigan Medical Marihuana Act (MMMA). In DeRuiter v Byron Twp, the Court considered a local zoning ordinance that required primary caregivers to grow marihuana for other patients only at a full-time residence as part of a home occupation. They were not permitted in commercial districts. Primary caregivers were required to submit a zoning application with information about the marihuana use, pay a fee, and obtain a permit.

The Supreme Court held that there was no direct conflict between the location and zoning permit requirements and the provisions of the MMMA. The state law concerns the type of structure for marihuana plants to be grown in and “does not speak to where marihuana may be grown.” As long as a local zoning regulation does not conflict with what the MMMA permits, a Township is able to “add to the conditions” in the state statute. The MMMA did not nullify a Township’s land use authority under the Zoning Enabling Act where a geographical restriction does not prohibit all medical marihuana and adds to or complements the MMMA. A Township may also require primary caregivers to obtain a permit and pay a fee before undertaking cultivation of medical marihuana, as they may do for other conditional uses under a zoning ordinance.

The Court left several questions unresolved and did not address patient use of marihuana or a patient growing their own 12 marihuana plants. Rather, the opinion only directly addressed the larger 72 plant grow operations that primary caregivers may operate for other patients. Still, the Supreme Court affirmed the continuing validity of local zoning control.

In this evolving area of the law, it is important to carefully consider Township marihuana regulations as not all zoning regulations relate to marihuana uses operating under the MMMA.

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