Judge: Medical Marijuana Grow And Dispensing Operations Are Not Above Local Zoning Law

[maxmax]

A Washtenaw County Circuit Court judge has ruled that the Michigan Medical Marihuana Act does not pre-empt local zoning laws regulating the production and distribution of the drug.

The ruling is significant because it’s the first court challenge to zoning laws regulating medical marijuana in the state, according to Dennis McLain, Ypsilanti Township’s attorney.

 

Previous court challenges have been against communities that have tried to outright ban medical marijuana use, production or distribution because it is still illegal at the federal level.

The ruling is part of a case against two Ypsilanti Township residents officials charge are pumping an “intense” medical marijuana odor out of their home that is resulting from some type of processing operation in their basement. Neighbors have complained about the odor, though the defendants deny it is an issue.

 

Officials say homeowners at 1397 Crestwood are growing more marijuana than is allowed per township zoning ordinance.

Tom Perkins | For AnnArbor.com

 

The township also charges the defendants, Michael Engle andDeborah Klochubar, are growing more medical marijuana than allowed under the township’s zoning laws.

According to state law, a person with a medical marijuana patient’s card can grow up to 12 plants for his or her 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. Klochubar's and Engle's home is in such a zone.

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

The state law does not say where medical marijuana can and cannot be grown.

Misterovich asked Washtenaw County Circuit Court Judge Archie Brown to dismiss the case, but Brown disagreed with Misterovich's assessment.

“There are no provisions in the MMMA that prohibit municipalities from adopting zoning ordinances regulating where medical marijuana caregivers can grow and dispense marijuana for other patients,” Brown wrote in his ruling.

Misterovich did not return calls from AnnArbor.com. seeking comment.

“This is a significant issue; whether densely populated neighborhoods can be taken over by medical marijuana grow operations. We’re definitely fighting that to the end,” McLain sai

 

http://www.annarbor.com/news/ypsilanti/judge-medical-marijuana-grow-operations-are-not-above-local-zoning-law/

[pic book]

The folks on Crestwood thot they could shove mmj up the noses of their neighbors. They could get by with their bunny muffin in Detroit. Any where else you must act as tho it is illegal and you hide it.

[TheHarvester]

Well no one ever saw this coming...

[Dr. Bob]

Don't think this has anything to do with MMJ, it has to do with complaints about odors.

 

Dr. Bob

[maxmax]

i thInk it has everything to do with mmj if all it takes is a phone call from your neighbor to stop you from growing

[pic book]

I think it is about having respect for those who around you.

[maxmax]

they should of just stayed in the D until the Sate police comes in and cleans it up after the Governor get his way things their will change even in the D

[pic book]

Polluting the air is no more acceptable than blocking your neighbor's dirveway.

[pic book]

Compost operations face the same responsibility to void odors, and they've been in court and some have been fined and ultimately shut down for failure to control odors from their operations. I agree with Dr. Bob, if you are a nuisance to your neighbors, whatever your operations, you wil be disciplined, marijuana or garbage or noise, to those you are offending it all is about respect for others, not mmj per se.

[Dr. Bob]

Compost operations face the same responsibility to void odors, and they've been in court and some have been fined and ultimately shut down for failure to control odors from their operations. I agree with Dr. Bob, if you are a nuisance to your neighbors, whatever your operations, you wil be disciplined, marijuana or garbage or noise, to those you are offending it all is about respect for others, not mmj per se.

 

This is the crux of the issue, not the marijuana. The fact they are making a big deal about it is just an attempt spin it into a marijuana issue.

[Mememe]

Right to farm act? Farms are smelly.

[t-pain]

(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.

[SFC]

Bottom line, none of this was necessary. Now we all get a little extra egg for our faces..

 

Right to farm has no bearing on a residential zoned neighborhood.

[Mememe]

Right to farm act

286.474

(6)

Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent

that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any

manner the provisions of this act or generally accepted agricultural and management practices developed

under this act. Except as otherwise provided in this section, a local unit of government shall not enact,

maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or

generally accepted agricultural and management practices developed under this act.

(7)

A local unit of government may submit to the director a proposed ordinance prescribing standards

different from those contained in generally accepted agricultural and management practices if adverse effects

on the environment or public health will exist within the local unit of government. A proposed ordinance

under this subsection shall not conflict with existing state laws or federal laws. At least 45 days prior to

enactment of the proposed ordinance, the local unit of government shall submit a copy of the proposed

ordinance to the director. Upon receipt of the proposed ordinance, the director shall hold a public meeting in

that local unit of government to review the proposed ordinance. In conducting its review, the director shall

consult with the departments of environmental quality and community health and shall consider any

recommendations of the county health department of the county where the adverse effects on the environment

or public health will allegedly exist. Within 30 days after the public meeting, the director shall make a

recommendation to the commission on whether the ordinance should be approved. An ordinance enacted

under this subsection shall not be enforced by a local unit of government until approved by the commission of

agriculture.

[Herb Cannabis]

 

Right to farm act

286.474

(6)

Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent

that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any

manner the provisions of this act or generally accepted agricultural and management practices developed

under this act. Except as otherwise provided in this section, a local unit of government shall not enact,

maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or

generally accepted agricultural and management practices developed under this act.

(7)

A local unit of government may submit to the director a proposed ordinance prescribing standards

different from those contained in generally accepted agricultural and management practices if adverse effects

on the environment or public health will exist within the local unit of government. A proposed ordinance

under this subsection shall not conflict with existing state laws or federal laws. At least 45 days prior to

enactment of the proposed ordinance, the local unit of government shall submit a copy of the proposed

ordinance to the director. Upon receipt of the proposed ordinance, the director shall hold a public meeting in

that local unit of government to review the proposed ordinance. In conducting its review, the director shall

consult with the departments of environmental quality and community health and shall consider any

recommendations of the county health department of the county where the adverse effects on the environment

or public health will allegedly exist. Within 30 days after the public meeting, the director shall make a

recommendation to the commission on whether the ordinance should be approved. An ordinance enacted

under this subsection shall not be enforced by a local unit of government until approved by the commission of

agriculture.

 

Nice!

[Highlander]

Right to farm act

286.474

(6)

Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent

that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any

manner the provisions of this act or generally accepted agricultural and management practices developed

under this act. Except as otherwise provided in this section, a local unit of government shall not enact,

maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or

generally accepted agricultural and management practices developed under this act.

(7)

A local unit of government may submit to the director a proposed ordinance prescribing standards

different from those contained in generally accepted agricultural and management practices if adverse effects

on the environment or public health will exist within the local unit of government. A proposed ordinance

under this subsection shall not conflict with existing state laws or federal laws. At least 45 days prior to

enactment of the proposed ordinance, the local unit of government shall submit a copy of the proposed

ordinance to the director. Upon receipt of the proposed ordinance, the director shall hold a public meeting in

that local unit of government to review the proposed ordinance. In conducting its review, the director shall

consult with the departments of environmental quality and community health and shall consider any

recommendations of the county health department of the county where the adverse effects on the environment

or public health will allegedly exist. Within 30 days after the public meeting, the director shall make a

recommendation to the commission on whether the ordinance should be approved. An ordinance enacted

under this subsection shall not be enforced by a local unit of government until approved by the commission of

agriculture.

 

So you're trying to convince people that growing MMJ in your basement is " generally accepted agricultural and management practices developed

under this act."

Edited March 10, 2013 by Highlander

[Mememe]

Not trying to convince anyone of anything, simply exploring possibilities.

C.

“Farm product” means those plants and animals useful to human beings produced by agriculture and

includes, but is not limited to, forages and sod crops, grains and feed crops, field crops, dairy and dairy

products, poultry and poultry products, cervidae, livestock, including breeding and grazing, equine, fish, and

other aquacultural products, bees and bee products, berries, herbs, fruits, vegetables, flowers, seeds, grasses,

nursery stock, trees and tree products, mushrooms, and other similar products, or any other product which

incorporates the use of food, feed, fiber, or fur, as determined by the Michigan commission of agriculture.

http://legislature.m...-93-of-1981.pdf

 

May also be able to use "A proposed ordinance under this subsection shall not conflict with existing state laws or federal laws." to stop them from making zoning based on MM b/c MM is illegal federally?

Edited March 10, 2013 by Mememe

[Mememe]

There may also be the possibility of making basement grows generally accepted ag and management procedures. How do we contact them?

(8)

By May 1, 2000, the commission shall issue proposed generally accepted agricultural and management

practices for site selection and odor controls at new and expanding animal livestock facilities. The

commission shall adopt such generally accepted agricultural and management practices by June 1, 2000. In developing these generally accepted agricultural and management practices, the commission shall do both of

the following:

(a)

Establish an advisory committee to provide recommendations to the commission. The advisory

committee shall include the entities listed in section 2(d), 2 individuals representing townships, 1 individual

representing counties, and 2 individuals representing agricultural industry organizations.

(b)

For the generally accepted agricultural and management practices for site selection, consider

groundwater protection, soil permeability, and other factors determined necessary or appropriate by the

commission

[Highlander]

There may also be the possibility of making basement grows generally accepted ag and management procedures. How do we contact them?

(8)

By May 1, 2000, the commission shall issue proposed generally accepted agricultural and management

practices for site selection and odor controls at new and expanding animal livestock facilities. The

commission shall adopt such generally accepted agricultural and management practices by June 1, 2000. In developing these generally accepted agricultural and management practices, the commission shall do both of

the following:

(a)

Establish an advisory committee to provide recommendations to the commission. The advisory

committee shall include the entities listed in section 2(d), 2 individuals representing townships, 1 individual

representing counties, and 2 individuals representing agricultural industry organizations.

(b)

For the generally accepted agricultural and management practices for site selection, consider

groundwater protection, soil permeability, and other factors determined necessary or appropriate by the

commission

 

So a MMJ grow is a new or expanded livestock facility?

 

"Git along little doggies."

[Highlander]

i thInk it has everything to do with mmj if all it takes is a phone call from your neighbor to stop you from growing

 

I dislike the smell of fresh/growing cannabis. I would not want a vent from a non-carbon-filtered grow blowing at my house any more than I would want a paint booth vent or my neighbor storing port-a-potties in his side yard.

[Kingdiamond]

I have a neighbor who has a fireplace he uses it year round so if i want to not run my central on cooler nights i have to smell what appears to be wood that someone urinated on even though im annoyed beyond words i would never report them for it not like anything would happen anyway my point is i do not care what your doing next door its your house but id be more apt to be respectfull and find a solution especialy if it was going to draw the township to my door and expose my legal status.

[greenbuddha]

I have a neighbor who has a fireplace he uses it year round so if i want to not run my central on cooler nights i have to smell what appears to be wood that someone urinated on even though im annoyed beyond words i would never report them for it not like anything would happen anyway my point is i do not care what your doing next door its your house but id be more apt to be respectfull and find a solution especialy if it was going to draw the township to my door and expose my legal status.

 

 

I agree with ya, King D. If you want a good neighbor...try and be a good neighbor.

[Celliach]

Right to farm act? Farms are smelly.

 

You're not allowed to farm in areas zoned for residential.

[GregS]

"A local unit of government may submit to the director a proposed ordinance prescribing standards

different from those contained in generally accepted agricultural and management practices if adverse effects

on the environment or public health will exist within the local unit of government."

 

I take this to mean that local governments can restrict due to strong odor, but with a variance that must be obtained from the proper state agency first. I wonder if Ypsi has done that.

[Ms Chocolate]

They could get by with their bunny muffin in Detroit. Any where else you must act as tho it is illegal and you hide it.

I don't know. There are areas in Detroit where the smell might have neighbors calling. In certain areas, like SW/Delray area, the smell of marijuana would be a welcome relief.