By: Scott F. Roberts
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Municipalities Can Now Control Caregiver Zoning
The long awaited Deruiter decision was just announced by the Michigan Supreme Court, and the decision was yet another blow to Michigan caregivers operating under the MMMA. It had long been an open question of law whether municipalities had the ability to zone or otherwise utilize land use restrictions to prevent caregivers from operating in certain zoning. This question has now been answered.
The Michigan Supreme Court in Deruiter held in an unanimous opinion that municipalities the MMMA does not nullify a municipality’s inherent authority to regulate land use as long as:
- the municipality does not prohibit or penalize the cultivation of medical marijuana, and
- the municipality does not impose regulations that are unreasonable and inconsistent with regulations established by state law.
What this means for caregivers is that municipalities are now able to exercise their zoning and land use powers to determine where a caregiver is able to locate in that municipality. Previously, a line of Court of Appeals cases indicated that municipalities may not be able to restrict where a caregiver is able to operate.
In its opinion, the Deruiter court went on to state:
Because an enclosed, locked facility may be found in various locations on various types of property, the township’s ordinance limiting where medical marijuana must be cultivated within the locality did not directly conflict with the MMMA’s requirement that marijuana plants be kept in an enclosed, locked facility. The township’s ordinance requiring primary caregivers to obtain a permit and pay a fee before using a building or structure within the township to cultivate medical marijuana also did not directly conflict with the MMMA because the ordinance did not effectively prohibit the medical use of marijuana.
With MRA banning caregiver product from entering into the licensing system starting in September, and with municipalities being granted the newfound authority to restrict caregiver facilities, it seems that caregiving in Michigan, at least as a legal business, is on its way out.
Mr. Roberts is the founder and managing member of Scott Roberts Law, a Detroit-based Cannabis Business Law Firm founded in 2014. Scott has spent his entire career representing businesses and helping them comply with municipal, state and local regulations, as well as assisting on transactional corporate and real estate matters. Scott is an accomplished attorney, author and public speaker, having spoke at CannaCon, Cannabis Industrial Marketplace, CannabisAid, and 420 Canna Expo, to name a few. He has also taught Continuing Legal Education on Marijuana business matters, meaning other attorneys see him speak to learn about the nuances of cannabis business law.