Judge: Case Against Homeowners Charged With Pumping 'intense' Medical Marijuana Odor Can Go Forward

[bobandtorey]

The township says Engle is in violation of its noxious fumes ordinance because of the “intense” odor that has disrupted neighbors’ lives. Township officials have stressed that the issue doesn’t have to do with medical marijuana laws but zoning ordinances regulating what kind of odors can be omitted in the township.

 

Officials allege Klochubar and Engle are processing medical marijuana in some way that produces fumes that are pumped out of their basement window through an exhaust system and towards a neighbors’ home.

 

Police and township officials say they have smelled the odor outside the home at 1397 Crestwood Ave. on multiple occasions, and presented affadavits from neighbors who said they smelled it.

 

In a separate case, the township charges that Engle and Klochubar are in violation of the township’s zoning laws regarding growing of medical marijuana.

 

According to state law, a person with a medical marijuana patient’s card can grow up to 12 plants for their personal use. Ypsilanti Township ordinance allows residents to grow their personal plants in residential zones.

 

But state law says registered caregivers can grow up to 72 plants for up to five patients and their own personal use. Ypsilanti Township's zoning ordinance doesn’t permit caregivers to operate in residential zones.

 

Eric Misterovich, attorney for Engle and Klochubar says that state medical marijuana laws pre-empt local ordinances, and the township’s zoning ordinances regarding medical marijuana are not enforceable.

 

Judge Brown will take that question under advisement, and a trial date of Aug.12 has been set for the noxious odor case.

 

Although the two cases are separate, Misterovich said they are tied together, and medical marijuana producers' emissions can't be regulated.

 

That ruling could have wide-ranging consequences across the state as officials are not aware of any other case in the state where zoning ordinances regulating medical marijuana growing activities have been challenged.

 

“When there is a direct conflict between state law and local law, state law is upheld,” Misterovich said.

 

The noxious fumes zoning ordinance states that the "creation of offensive odors shall be prohibited" in any zone. Mike Radzik, director of the office of community standards, said the odor coming out of the home constitutes an offensive order, and a district court judge has already agreed.

 

Neighbors first began complaining in March of 2012 and Engle and Klochubar were cited. On May 8, 14-B District Court Judge Charles Pope ordered Engle and Klobuchar to abate the odor. Engle admitted that there was a disruptive odor being pumped from the home by entering into a consent agreement, Township attorneys says.

 

Officials say that agreement with the 14-B District Court has gone ignored.

 

Misterovich said he presented affadavits from other neighbors on the street that said they don't smell any odors. And, regardless of the smell, Misterovich underscored that he feels the state laws pre-empt the noxious fumes ordinance, so the odor can't be regulated.

 

Ypsilanti Township attorney Dennis McLain says he is pleased with the rulings so far.

 

“It’s a huge plus for the township as far as we’re concerned,” he said. “The township is moving forward.”

 

http://www.annarbor.com/news/ypsilanti/judge-case-against-man-charged-with-pumping-intense-medical-marijuana-can-go-forward/

[+Malamute]

Well, i believe he is definitely right that ordinances can't say cg's are not allowed to use their homes for medical use. But, i do believe obnoxious odors are totally enforceable as a nuisance. odors, noises, excessive light leakage and such can be regulated in an ordinance because it causes a common law violation( i do believe that is right). Let some actual attorney be specific. But it has to do with property rights of neighbours as well as yourself. When you interefere with your neighbours property rights etc etc. Just as you(we) believe our neighbour cannot say whether we(pt/cg's) can grow or not on our property,..our doing so should not unreasonably interefere with our neighbours common law rights of reasonable residency without destruction of enjoyment of their property.

 

If said excessive smells are a problem, they should simply be asked to resolve the issue by reducing said fumes or odors.

 

But, there are some extenuating circumstances to this case,... so this is less about this case specifically as it is with the concept generally.

[+Malamute]

Let me also say, just because it may be smelled rarely on an occasion, does not produce a nuisance. If it is constant , daily or close to, and truly offensive to the neighbours, there must be a way to amicably resolve it and lessen your stinky output. :-)

[Restorium2]

But state law says registered caregivers can grow up to 72 plants for up to five patients and their own personal use. Ypsilanti Township's zoning ordinance doesn’t permit caregivers to operate in residential zones.

 

Because of;

 

Because of local zoning restrictions put in place by staff and City Council, twelve dispensaries could potentially open in Ypsilanti, but only four have done so over the past year. The 3rd Coast Compassion Center at Hamilton and Pearl streets was the first dispensary in Michigan to open and the first in the state to receive a dispensary license from a local municipality in June.

Edited February 28, 2013 by Restorium2

[pic book]

The defendants certainly could be smarter and benefit themselves (and their neighbors) by containing odors. Seems as if they went looking for trouble...Of course the neighbors don't have to put up with it, as E and B are going to learn.

[mibrains]

i agree...

the bundle of rights contained in a warranty deed includes the right to not be burdened by a neighbors scent.

that law will supersede the MMMA as it is clearly a property right... and was in place long before the MMMA.

you have a right to grow.. and be a caregiver probably.. but not to be a "public nuisance"

and a noxious scent emulating from your residence can be proven as a nuisance as much if not more than what just happened with the SC in McQueen.

why can't they just fix it?
why do people fight these kinds of things... i mean. come on... GET A CARBON FILTER please.

why invite legislators to fix a problem we should be regulating ourselves.

Edited April 5, 2013 by mibrains
removed offensive line

[Restorium2]

My brother lived next to a pig farmer. He moved because there was no way around the farm act. Yet marijuana is 'stinky'?

[+Malamute]

That is why there are different zones. Ag zone, residential etc.

 

I would say residential shouldnt be burdened by what is truly excessive fumes or odors.

 

As i said, this particular case has some intersting extenuating circumstances involved and this fight was... well.

 

Anyhow,... common law on this basic issue in a residential area in a munipality that has an ordinance against odors/fumes in their nuisance code, can request that you abate in some way that excessive odor if it truly is a real problem.

[+Malamute]

I can say this is a struggle between different "rights and/or privileges". But i am giving what is likely the middle ground decision you may see from something like this.

 

I am talking warning to abate problem,.. minor fine,... another fine... blah blah.

 

But they can;t ban a cg in their home from medical use imo.

 

And yes,.. if ya wanna see what one of the MAIN people involved with 4271/5580 pushed for and got in Ypsilanti,.. resto's post nailed it down on the ordinance language there.

 

Pay attention people. Expect assurances followed up by crocodile tears when all goes awry. :-)

[Restorium2]

For noise they have to use a decibel reader. They need to have some sort of real way to prove their allegations other than the sniffer of one of these local officials. First they go after caregivers and that obviously was not enough. If it's a biased nose that is the decider then they will never smell good enough.

Edited February 28, 2013 by Restorium2

[Northern Lab]

 

i agree...

the bundle of rights contained in a warranty deed includes the right to not be burdened by a neighbors scent.

that law will supersede the MMMA as it is clearly a property right... and was in place long before the MMMA.

you have a right to grow.. and be a caregiver probably.. but not to be a "public nuisance"

and a noxious scent emulating from your residence can be proven as a nuisance as much if not more than what just happened with the SC in McQueen.

why can't they just fix it?
why do people fight these kinds of things... i mean. come on... GET A CARBON FILTER please.

why invite legislators to fix a problem we should be regulating ourselves.

I agree John. They're just drawing unnecessary attention.

Smarten up... Edited April 5, 2013 by mibrains

[+Malamute]

What i can say is, this particular case is interesting in that there are some extremes involved in it that brought it to the forefront and created much tension between the defendant and said neighbours and such.

 

I mean, ya can't complain about your neighbours BBQ grill,... but ya can complain about the septic tank stinkin like hell.

 

And totally Resto. I am with ya. I realize they will try to abuse this,... but i have a feeling in the end, it will fall in the middle and reside in somewhat resonable.

[Restorium2]

 

I agree John. They're just drawing unnecessary attention.

Smarten up...

You are assuming they stink. Did you get your own personal whiff? If you look at it from the point of view that the locals are already going against state law because they are biased against growers 'for their reasons' I don't think they are qualified to decide this. We need an impartial stink arbitrator here. Not assumptions from those noses that don't know. Maybe a new job for you? Safety Nose Man? Edited April 5, 2013 by mibrains

[SFC]

Engel is an XXXX and many of us can remember him from here. Totally oblivious. It is too bad because this is such a simple thing to avoid yet just to be a XXXX the ball is now rolling.

Edited April 5, 2013 by mibrains

[Restorium2]

I remember Engle. I still would like some standard of nosery performed by an impartial smell specialist. We need standards, not empowering overzealous locals looking for a foot in the door.

[Northern Lab]

 

You are assuming they stink. Did you get your own personal whiff? If you look at it from the point of view that the locals are already going against state law because they are biased against growers 'for their reasons' I don't think they are qualified to decide this. We need an impartial stink arbitrator here. Not assumptions from those noses that don't know. Maybe a new job for you? Safety Nose Man?

Settle down Reverend Al

Engel is an XXXX and many of us can remember him from here. Totally oblivious. It is too bad because this is such a simple thing to avoid yet just to be a XXXX the ball is now rolling.

Is this that Dutch guy? Edited April 5, 2013 by mibrains

[Restorium2]

Settle down Reverend Al

 

 

 

Is this that Dutch guy?

Well, did you personally smell it before you decided they stink? Do you have a stink detector? Does Dutch stink or is it his grow? I switch out my hoodies regularly but I know I'm going to smell like cannabis a lot of the time. Where are the standards?

[Northern Lab]

 

Well, did you personally smell it before you decided they stink? Do you have a stink detector? Does Dutch stink or is it his grow? I switch out my hoodies regularly but I know I'm going to smell like cannabis a lot of the time. Where are the standards?

 

No, did you?

 

Seems to me the standards are if enough neighbors complain about the smell, the local township is going to be forced to do something about it.

 

Something to be said for being a good neighbor and not drawing unnecessary attention to yourself.

[Restorium2]

No, did you?

 

Seems to me the standards are if enough neighbors complain about the smell, the local township is going to be forced to do something about it.

 

Something to be said for being a good neighbor and not drawing unnecessary attention to yourself.

The local township officials have went totally against state law, zoned out the small growers, and put dispensaries in their place. They are not doing things as they should. They are known for overstepping and doing the wrong thing.

 

If you haven't had much contact with locals about smells and problems with neighbors then you have no idea how this isn't so 'cut and dried' as you make it out to be.

 

Most of the time you can't get a township to do anything about odors ever. They always just tell you to work it out unless there's obvious huge piles of trash in the yard. About the only time anyone does anything is if it smells like decomp and then they look for the body.

[mibrains]

My brother lived next to a pig farmer. He moved because there was no way around the farm act. Yet marijuana is 'stinky'?

 

correct rest.

 

it is called the right to farm act but it only protects farmers on agriculturally zoned land.

 

part of a residential sellers disclosure asks specifically if you are within distance of a farm or an airport so the potential buyer can make an informed decision prior to entering into a sales agreement because the nuisance of scent cannot be contained.... as a purchaser you have an advanced right to know if your warranty deed will be encumbered by a negatively impacting value as the result of a neighbors activity.

 

and stinky nasty farms defiantly decrease value in many cases so they have rules to protect buyers as a result..

 

cannabis is no different.

 

a bbq is temporary much like smoke from a firepit.

 

a grow is not so much and would be subject to possible violations...

[Northern Lab]

 

The local township officials have went totally against state law, zoned out the small growers, and put dispensaries in their place. They are not doing things as they should. They are known for overstepping and doing the wrong thing.

 

If you haven't had much contact with locals about smells and problems with neighbors then you have no idea how this isn't so 'cut and dried' as you make it out to be.

 

Most of the time you can't get a township to do anything about odors ever. They always just tell you to work it out unless there's obvious huge piles of trash in the yard. About the only time anyone does anything is if it smells like decomp and then they look for the body.

 

 

There hasn't even been 1 case of a smell issue in my area that I know of.

 

Considering that there are probably a lot more anti marijuana people here than there are in Ypsilanti, it would seem to me that this must be a very onerous smell.

 

This could be a case of a little neighborhood pay back, too. I wouldnt rule that out for a moment, considering the characters involved.

[Restorium2]

Seems like you are making excuses for the wrong folks. If any township can just say you stink then I'll bet you can see the problem with that, no? If a township is KNOWN to be anti medical cannabis, to the point of going directly against state law, then why would you trust their integrity enough to trust their sense of smell to be fair?

[Restorium2]

But state law says registered caregivers can grow up to 72 plants for up to five patients and their own personal use. Ypsilanti Township's zoning ordinance doesn’t permit caregivers to operate in residential zones.

 

Because of;

 

Because of local zoning restrictions put in place by staff and City Council, twelve dispensaries could potentially open in Ypsilanti, but only four have done so over the past year. The 3rd Coast Compassion Center at Hamilton and Pearl streets was the first dispensary in Michigan to open and the first in the state to receive a dispensary license from a local municipality in June.

[Northern Lab]

Seems like you are making excuses for the wrong folks. If any township can just say you stink then I'll bet you can see the problem with that, no? If a township is KNOWN to be anti medical cannabis, to the point of going directly against state law, then why would you trust their integrity enough to trust their sense of smell to be fair?

 

Ypsilanti is anti cannabis?

 

Who's making excuses?

[SFC]

Sorry Zap. I thought I was being mild, lol. Read the earlier articles about it Resto. He was definitely rubbing his neighbors noses in it..