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Medical Marihuana Outdoor Cultivation

The Michigan Court of Appeals recently held that local zoning restrictions on outdoor medical marihuana cultivation are preempted by the Michigan Medical Marihuana Act (“MMMA”). In Charter Township of York v Miller, homeowners who were also MMMA patients constructed a backyard structure to be used for medical marihuana cultivation. The Township’s Zoning Ordinance expressly provided that, while residential property could be used by a medical marihuana cardholder for growing marihuana, the medical marihuana was required to be contained “within the main building” in an enclosed, locked facility.  This zoning restriction was consistent with the MMMA’s original cultivation restrictions; however, a 2012 amendment to the MMMA expanded the permissible cultivation locations to expressly include outdoor space. However, the Township argued that its broad zoning authority under the Michigan Zoning Enabling Act (“MZEA”) authorized it to prohibit entirely outdoor medical marihuana cultivation.

 

The Court of Appeals found that provisions within the MMMA expressly permitting the outdoor cultivation of medical marihuana preempted local zoning provisions to the contrary.  The Court noted that, under Michigan law, municipalities may exercise reasonable control to regulate matters of local concern only in a manner and to the degree that the regulation does not conflict with state law. A conflict exists between a local regulation and state statute when the local regulation prohibits what the statute permits.  In this case, Section 3(d) of the MMMA, MCL 333.26423(d), requires that medical marihuana be kept in an “enclosed, locked facility,” which the MMMA defines to expressly include outdoor space.

 

Accordingly, the Township could not enforce its Zoning Ordinance prohibition against outdoor medical marihuana cultivation.  Local units of government that may have Zoning Ordinances tailored to the original MMMA should review the ordinances to ensure they comply with the current version of the statute.
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