Most All Township's Views In Medical Marijuana

[+Dizledot]

...update on Township views on Medical Marijuana, this is troubling to see this sent as advice on how to control us. Most townships take this news letter as the BIBLE of what to do for most issues!

Dizz

 

Township Law E-Letter

Changing Legal Backdrop of the MMMA

Federal law is clear on the matter of who can decide

what substances are or are not legal within

the states: the federal Controlled Substances Act

(CSA) supersedes any state law under the Supremacy

Clause of the U.S. Constitution. Therefore,

the U.S. Department of Justice asserts that

a state law that legalizes medical marihuana (like

the MMMA) is superseded by the CSA unless

and until the CSA is amended to exclude marihuana

as a controlled substance.

Legal theory and practical realities with respect

to medical marihuana have not yet merged in

Michigan. But the state and its courts are moving

closer to that conclusion. A few state court

judges have recently ruled that the CSA supersedes

the MMMA and, as a result, the MMMA is

unconstitutional and unenforceable. While these

opinions are not binding in jurisdictions outside

of Dearborn and Midland County, they hint at a

growing movement toward invalidating or demanding

changes to the MMMA.

Other cases involving medical marihuana seem

to be on a fast‐track through the state judicial

system, including a case currently before the

Michigan Court of Appeals involving patient to

patient transfers of medical marihuana and a

number of other state and federal court cases,

many related to the manner in which the local

government has elected to regulate (or not regulate).

Also notable are recent communications from the

U.S. Department of Justice on the issue of the interplay

of federal and state laws, which we discuss

briefly here.

The Ogden Memo: Hands Off!

On October 19, 2009, Deputy United States Attorney

General David W. Ogden issued a memorandum

explaining that the federal government considers

marihuana an illegal substance, but that

the federal government did not consider investigation

and prosecution of persons complying

with their state medical marihuana laws to be an

efficient use of time or federal resources. This

memo was early misinterpreted as demonstrating

that the federal government was well aware of

the medical marihuana movement in some

states, but that federal authorities would, essentially,

turn a blind eye unless citizens were clearly

acting outside the bounds of the state law—a

“hands off” type policy that seemed to express

some deference for state law.

Medical Marihuana in Michigan:

Legal Update and Land Use Strategies

July 2011

Townships are entrenched in the puzzling practical aspects of enforcing the

Michigan Medical Marihuana Act (“MMMA”), including appropriate land use

regulations associated with medical marihuana. Few townships have ordinances

equipped to handle the myriad medical marijuana issues, like mixed

commercial, agricultural, and residential uses, industrial uses in residential or

commercial areas, or uses that could be incompatible with public uses such

as schools. Here are a few legal updates and strategies to assist your township

in emerging from the mysterious maze of the MMMA.

 

Beyond the Ogden Memo

The Ogden Memo was followed by a series of letters

from federal prosecutors to states with

medical marihuana laws like the MMMA, implying

that state and local officials who allow possession

or use of medical marihuana could be

considered co‐conspirators who are violating the

federal Controlled Substances Act.

On June 29, 2011, that implied threat of legal

consequences for state and local officials became

an all out warning. Deputy United States Attorney

General James M. Cole issued a new memorandum,

clarifying that pursuing seriously ill individual

marihuana users remains an inefficient use

of limited federal resources. However, Cole’s

memorandum also clarified that the recent increase

in the scope of commercial cultivation,

sale, distribution and use of marihuana under

state medical marihuana laws and local ordinances

allowing large‐scale, private marijuana

cultivation centers raise serious federal concerns.

As a result, the Department of Justice now considers

people in the marihuana business and

“those who knowingly facilitate” such activities

to be violating the CSA, regardless of state law or

local ordinances to the contrary. The memo’s reference

to “troubling local laws” sets a tone that

any township or township official could be considered

facilitators of these illegal marihuana

schemes, even if they involve medical marihuana.

The legal activity and changing rules in this field

can be overwhelming and leave your township

wondering, “What can we do?” Read on for some

ideas!

Township Regulatory Options

There are a number of methods available to address

medical marihuana in your township, including

total bans, special use permits, home occupations,

and no regulation at all. Foremost in

your decision‐making regarding your township’s

chosen options should be avoiding actions that

present high litigation risk.

Although municipalities have selected options

across this broad continuum, we are hesitant to

recommend regulatory action that could be

construed as “allowing” or “facilitating” possession

of a federally controlled substance, because

of the Attorney General warning letters.

We would also caution that, although a total

ban on medical marihuana activity is probably

within the letter of the law, your township

should consider the possibility that such a ban

may be an unnecessary target for expensive

litigation, as we see in the media and in court

cases around the state. You may be successful

in the end, but at no small cost.

Among the other primary considerations when

planning how your township will regulate medical

marihuana, if you so choose, is the extent of

the use permitted. Will you permit only medical

marihuana home occupations that are limited

to one patient or caregiver per dwelling? If you

allow marihuana to be cultivated in buildings

other than a dwelling, where will you allow it?

Mixed‐use, agricultural, industrial, or limited

industrial areas? Much of that decision is tied

to the nature of your township, but it is a guiding

factor for the remainder of your medical

marihuana planning.

With that in mind, you might consider the following

as reasonable, less litigious options for

regulating medical marihuana activities in your

township.

Home Occupations

A zoning amendment for medical marihuana

home occupations is among the simplest and

most logical methods for regulating homebased

medical marihuana activity, whether by

patients or caregivers. When drafting your ordinance,

you can and should include a number of

criteria for marihuana‐specific ordinances.

Such criteria or standards might include:

• No more than 12 plants may be grown by a

caregiver or patient as a home occupation.

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• A medical marihuana home occupation shall

not be located within 1,000 feet of any

school, church or day care facility, or other

incompatible public uses, particularly those

involving minors.

• Not more than one caregiver or patient per

parcel shall be permitted to grow or cultivate

medical marihuana on any residential parcels.

• All marihuana must be contained in an enclosed,

locked facility in a primary (or accessory)

building.

• No marihuana may be cultivated outdoors.

• All building, electrical, plumbing, and mechanical

permits shall be obtained where

electrical wiring, lighting, or watering devices

support growing marihuana.

• That portion of the building where energy

usage and heat exceeds typical residential

use (such as a grow room) and the storage of

any chemicals such as herbicides, pesticides,

and fertilizers shall be subject to inspection

and approval by the Fire Department to ensure

compliance with the relevant fire protection

regulations.

Special Use Permits

Consider the special use permitting options in the

event that your township would like to (a) limit

this type of use or activity to one medical marihuana

patient or caregiver per non‐residential

building or (b) provide for multiple patients and

caregivers to join together in one non‐residential

building or facility.

Regardless of the option your township selects,

to further insulate your township from liability,

consider including language in special use applications

and a condition to each medical marihuana

special use permit stating that the permit

allows its holder to engage in the use, cultivation,

or distribution of medical marihuana only to the

extent that it is lawful under state and federal

law.

Further, your special use permit section should

clearly and carefully lay out all of the township’s

expectations as to sites, strict compliance

with the MMMA (to the extent that it is legal, if

at all, under federal law), and a host of other

criteria to ensure that your township knows

what is being grown and distributed, and

where. Such criteria are advisable not just to

protect the township, but the patient or caregiver

as well.

SUP for One Patient or Caregiver

This option could permit

• one patient to grow or cultivate, and use,

but not distribute, his/her own medical

marihuana, and/or

• one caregiver to grow or cultivate and distribute

medical marihuana to his/her patients

(up to the maximum of 5 patients).

SUP for Multiple Patients / Caregivers

This option might include, as special uses,

medical marihuana growing facilities, distribution

facilities, and/or clubs. Although such uses

should be specifically defined in your code of

ordinances, in general they could be defined as

follows:

• A medical marihuana club is a where multiple

patients grow and make available

medical marihuana for their individual use.

• A medical marihuana distribution facility is

where caregivers store and distribute to

their patients (up to 5 patients per caregiver)

medical marihuana in accordance

with state law – and where growth and cultivation

of marihuana is prohibited.

• A medical marihuana growing facility is

where caregivers may grow, possess, and

store up to the maximum amount of medical

marihuana allowed pursuant to state

law – and where use or distribution of marihuana

is prohibited.

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Township Law E-Letter Fahey Schultz Burzych Rhodes PLC

Note that in this option, caregivers’ growth and

distribution operations are not permitted in the

same facility.

Michigan Attorney General Schuette recently issued

an opinion stating that joint cooperative

cultivation or sharing of marihuana plants under

the MMMA is prohibited, but this opinion focused

primarily on the open cultivation or sharing

of plants among patients and caregivers, where

each patient’s marihuana is not kept in an enclosed,

locked facility.

The types of facilities we have outlined here

could still be permissible under the Attorney

General’s opinion, provided that the special use

permits specifically require that each patient’s

cultivation and use of marihuana is limited to his

or her own access and use, and each caregiver is

required to ensure that each of his or her patients’

marihuana is cultivated and stored in

separate enclosed locked facilities to which only

the caregiver has access. This would be permitted

even if more than one patient or caregiver use a

building, provided that each patient or caregiver

has a separately locked room, closet, or locker to

which only that person has access.

Defining the Different Uses or Facilities

Be sure to assess your list of defined terms and

uses in your ordinance for:

• Inclusion of statutory definitions of

“patients,” “caregivers,” “marihuana,”

“medical marihuana,” etc., and

• Inclusion of definitions for the different types

of facilities where medical marihuana activities

may be conducted, if any.

When it comes to medical marihuana, go by the

statute itself. Define marihuana, medical marihuana,

and the like using language straight from the

MMMA. Also include statutory definitions of

“patients,” “caregivers,” and the different types

of facilities where medical marihuana activities

may be conducted, if any.

“Dispensaries”

The MMMA does not address how caregivers

or patients are to obtain the necessary supplies

to grow or use their own medical marihuana.

The Act was designed as a defense to criminal

prosecution for the medical use of marihuana,

but still recognizes that marihuana is a controlled

substance under Michigan’s Public

Health Code.

We do not read the MMMA to permit the establishment

of the commonly labeled

“dispensary” where medical marihuana is provided

or sold as a supply for caregivers or patients—

or anyone else, for that matter. We

therefore suggest a very clear statement in

your ordinance that any business or operation,

profitable or not, whose inventory or goods are

or include medical marihuana or medical marihuana

paraphernalia are expressly prohibited

within the township, unless the criteria of a

home occupation or special use permit and all

other state and federal laws are satisfied.

Create a safety net

While no one can guarantee that any ordinance

is “bullet‐proof,” there are certain other steps

your township can take to strengthen yours.

• Consider including in both your zoning ordinance

and your code of ordinances a statement

or regulation stating that whatever is

illegal under federal and state law is illegal

in the township.

• Your medical marihuana ordinances should

include other provisions explicitly demanding

that anyone seeking to utilize medical

marihuana under the MMMA must strictly

comply with its requirements.

• Be clear: state upfront in your code of ordinances

that a business or commercial operation

that sells or includes marihuana as a

part of its inventory is prohibited in the

township, except as expressly provided by

township ordinances.