A new ordinance enacted by Oakland County's Lyon Township would force all persons approved by the state to engage in caregiving for a medical marijuana patient to move into the R1 Residential-Agricultural zone, a move that has motivated at least one area patient and caregiver to take action.
"I had no idea they were trying to do this in my township, until a newspaper reporter called me for a quote," said Steve Greene, Township resident, medical marijuana program participant and host of the Full Melt radio show. "I told the reporter that this was all feel-good legislation but had no measure of effect because it is indeed rendered unenforceable by the settled law of Ter Beek."
Greene sued the Township once before on the basis that they were incorrectly enforcing the Michigan Medical Marihuana Act (The Act). In 2011 Township attorney Matthew Quinn said in the Detroit News, "Our ordinance focuses on any land use which violates federal, state or local ordinance. People can grow marijuana elsewhere, but Lyon Township doesn't want it." Greene's suit against Lyon Township mirrored an action by the ACLU of Michigan against several other cities for the same style of ordinance.
"There is a process to force a public vote on the issue, which substantially prevents the ordinance from going into effect by submitting a notice of intent to challenge the issue by referendum," Greene told TCC in an exclusive interview. "That measure has a barrier of 888 signatures from registered voters on a petition to get it on the ballot. The ordinance cannot go into effect until the referendum has either failed to gather the necessary signatures or the issue of referendum fails at the ballot box."
Greene filed his notice of intent to challenge with the Township on March 23. In an article in the Detroit Free Press dated March 22, Greene called the new ordinance "a problem" and "unenforceable."
SEE THE COPY OF GREENE'S LETTER TO THE TOWNSHIP BELOW
In 2013, Lyon Township passed a crushing ordinance that banned all medical marijuana activities in the community, based on the concept that federal law prohibiting any possession or use of cannabis was superior to state law allowing registered users to do those things.
Make no mistake, making cannabis use "totally prohibited" was the Township's first choice then- and now.
"...it was thought that marijuana use would be totally prohibited because federal law considers marijuana to be a Schedule I controlled substance. This regulatory approach was deemed unacceptable by the Michigan Supreme Court in the 2014 case Ter Beek v. City of Wyoming... With the understanding that medical marijuana use cannot be totally prohibited, the regulations now proposed refocus attention on achieving limited use," writes Christopher Doozan, Senior Vice President of McKenna Associates in this letter dated Oct. 7, 2015.
The new ordinance was created with the intent of reducing the number of registered medical marijuana participants in the Township by limiting use of property by caregivers. "Attached for your review are proposed regulations to allow cultivation and use of medical marijuana on a limited basis in Lyon Township," Doozan wrote in the same letter.
The Township's new ordinance, titled AP-15-59, establishes permission for patients to grow marijuana in their primary residence or on a building located on that residence's property. Caregivers growing any number of plants must do so in the R1 Residential-Agricultural Zone, and that location must be their primary residence. Alternatively, and very specifically, the medical marijuana plants could be grown in an industrial building, but only if that building is a secondary use, on a plot whose primary use is a pre-existing greenhouse or plant nursery.
And therein lies the rub. While accepting that the Township cannot punish persons for performing acts described in the Michigan Medical Marihuana Act, the ordinance actually does just that- telling caregivers that they have to move into special residential districts, and that they are in violation of the ordinance if they do not do so.
That seems to be just fine with the Township Board.
Lyon Twp. Trustee Jim Chuck thinks it should be "as difficult as it can be" for medical marijuana patients and caregivers to utilize the rights given to them by the citizens of Michigan, according to notes from the Township meeting dated January 11, 2016.
Conversation at that meeting swirled around the nearby cities of Wolverine Lake, Milford and Milford Township. Some communities have ordinances on the books requiring patients and caregivers who grow marijuana to register their location with the city; not surprisingly, not one person in those communities had decided to do so, the Trustees were told.
Township Trustee Chuck wanted to play hard ball. "His feeling is that it needs to be as difficult as it can be and still stay within the law," the meeting notes reflect. Making patients and caregivers register with the local government or get a grower's 'permit' is often used as a scare tactic to discourage all MMP participants from buying houses and renting commercial buildings in that community.
Township Vice-Chairman Carl Towne put down the issue of requiring medical marijuana cardholders to register for a valid reason: it is unenforceable. "He didn't think the permit was needed since it can't be enforced," per the meeting notes.
The Township did receive some good advice. Their attorney, Leann Kimberlin of Seglund, Gabe, Quinn, Elowsky & Pawlak, PLC, wrote on October 13:
The Michigan Supreme Court held that MMMA-compliant growth and distribution of marijuana is a right that local governments may not disturb, and its decision conclusively precludes ordinances that prohibit all MMMA compliant land uses, even indirectly. MMMA-compliant conduct is immune not merely from criminal prosecution and civil monetary sanction, but even from abatement as a nuisance.
The ordinance passed by Lyon Township seems to violate this interpretation of the Ter Beek decision. Caregiving for a medical marijuana patient is already regulated by state law, and if the garden is in the proper locked and enclosed facility, has no more than the required number of plants or amount of harvested material and the caregiver is currently registered with the state, the "MMMA-compliant conduct is immune not merely from criminal prosecution and civil monetary sanction, but even from abatement as a nuisance."
That immunity extends to violations of the Zoning Act.
If Lyon Township wanted to remove a caregiver from living and growing for his patient in his home in a zone that is not R1, it would seem they could not charge the caregiver with a crime, sue them to stop growing marijuana or call the home a nuisance.
"I have contacted the clerks office, spoken with the code enforcement officer at length (who has assured me this ordinance doesn't effect me or anyone who currently acts as a caregiver under the act by way of grandfathering)," Green said. "I told him that I was pleased that they weren't targeting me specifically but they were targeting the practice in general and that effects the community I advocate for, and that I won't allow it to happen."
Greene isn't willing to trust the Township to behave in a manner compliant with all applicable laws and court decisions. "The patients who live in my community deserve a caregiver willing to assert and defend the rights we fought for and citizens overwhelmingly passed in 2008. There is always the prime option of lawsuit asking for a judge to declare the law unenforceable, yet again- and I'm just the guy to do it."
Greene's letter to the Township stating his intent to challenge the ordinance:
To: Michelle Cash, Lyon Township Clerk
Re: Zoning Ordinance 03-16 passed March 9th
This letter is notice of my intent to challenge the ordinance referenced above pursuant to Municode Article 9, Section 9.04: Referendum, for the following reasons:
1) No particular situation or problem can be identified other than a general concern over questions on marijuana business located in the township.
2) There was no public hearing by which effected residents had a reasonable opportunity to speak to the proposed zoning ordinance. (No one knew the township was doing this).
3) The ordinance seeks to degrade rights established under the MMMA of 2008 for caregivers, specifically, and this ordinance attempts to label caregivers as an accessory use, which they are not. Caregivers are not businesses. This issue is already settled law in the Supreme Court Case Ter-Beek vs City of Wyoming: local government may not restrict state law further.
4) The ordinance would require caregivers to have special business related zoning which is not only unnecessary for the purpose, but intentionally assails both them and their patients connected to them though the state registry and has a direct impact on availability of adequate caregivers who have the knowledge and ability to make provisioning of medical cannabis to them by increasing the cost burden to do so, and frankly, is shameful.
I intend to gather the necessary 888 signatures from registered voters to put this question to the electorate in the next regular election in August.
Please consider this letter and email as official notice of this intent.
As a courtesy I will bring this letter in for submission to the township clerk with a full signature for validation and consideration.
Thank you for your concern and attention to this matter.
Source: The Compassion Chronicles