Michigan Cases April 27, 2020: Deruiter v. Twp. of Byron

Case Description

Dodge & Dodge, PC (by David A. Dodge ), Grand Rapids, for Christie DeRuiter.

McGraw Morris, PC (by Craig R. Noland and Amanda M. Zdarsky ), Troy, and Mika Meyers PLC (by Ross A. Leisman and Ronald M. Redick ), Grand Rapids, for Byron Township.

Bauckham, Sparks, Thall, Seeber & Kaufman, PC (by Robert E. Thall, Kalamazoo, and Catherine P. Kaufman, Portage), Amici Curiae for the Michigan Townships Association.

Rosati Schultz Joppich & Amtsbuechler PC (by Thomas R. Schultz ), Farmington Hills, Amicus Curiae for the Michigan Municipal League and the Government Law Section of the State Bar of Michigan.

Pollicella & Associates, PLLC (by Denise Pollicella, Farmington Hills, Jaqueline Langwith, and Kyle A. Debruycker) Amici Curiae for Cannabis Attorneys of Michigan.

BEFORE THE ENTIRE BENCH

Bernstein, J.

[505 Mich. 134]

In this case, we address whether defendant-counterplaintiff Byron Township's zoning ordinance, which regulates the location of registered medical marijuana caregiver activities and requires that a "primary caregiver" obtain a permit before cultivating medical marijuana, is preempted by the Michigan Medical Marihuana Act (the MMMA), MCL 333.26421 et seq. Specifically, Byron Township's ordinance requires that medical marijuana caregivers cultivate marijuana as a "home occupation" at a full-time residence. Byron Township Zoning Ordinance, § 3.2.H.1. Plaintiff-counterdefendant, Christie DeRuiter, a registered qualifying patient and primary

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caregiver under the MMMA, cultivated medical marijuana on rented commercially zoned property. DeRuiter's landlord was directed by the Byron Township

[505 Mich. 135]

supervisor to cease and desist the cultivation of medical marijuana or face legal action. After Byron Township attempted to enforce its zoning ordinance, DeRuiter sought a declaratory judgment regarding the ordinance's legality. Byron Township countersued and also sought a declaratory judgment regarding the ordinance's legality, arguing that the ordinance did not conflict with the MMMA. The trial court held that § 3.2 of Byron Township's zoning ordinance directly conflicted with, and was therefore preempted by, the MMMA. The trial court granted DeRuiter's motion for summary disposition and denied Byron Township's motion for summary disposition. The Court of Appeals affirmed the trial court in a published opinion. DeRuiter v. Byron Twp. , 325 Mich. App. 275, 287, 926 N.W.2d 268 (2018).

Because we conclude that the Byron Township Zoning Ordinance does not directly conflict with the MMMA, we reverse the Court of Appeals’ judgment and remand this case to the trial court for proceedings consistent with this opinion.

I. FACTS

Christie DeRuiter, a licensed qualifying patient and registered primary caregiver under the MMMA, began growing marijuana on rented commercially zoned property because she did not want to grow marijuana at her residence. DeRuiter grew the marijuana in an "enclosed, locked facility." See MCL 333.26423(d).

After learning of DeRuiter's cultivation of medical marijuana on commercially zoned property, the Byron Township supervisor determined that DeRuiter's growing operation constituted a zoning violation under the Byron Township Zoning Ordinance. The zoning ordinance

[505 Mich. 136]

contains a locational restriction that allows for the cultivation of medical marijuana by primary caregivers, but only as "a home occupation." Byron Township Zoning Ordinance, § 3.2.H.1. "Home occupation" is defined by Byron Township as follows:

An occupation or profession that is customarily incidental and secondary to the use of a dwelling. It is customarily conducted within a dwelling, carried out by its occupants utilizing equipment customarily found in a home and, except for a sign allowed by this Ordinance, is generally not distinguishable from the outside. [Byron Township Zoning Ordinance, § 2.5.]

Under this home-occupation requirement, the ordinance mandates that the "medical use" of marijuana by a primary caregiver be "conducted entirely within a dwelling

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or attached garage, except that a registered primary caregiver may keep and cultivate [medical marijuana], in an enclosed, locked facility...." Byron Township Zoning Ordinance, § 3.2.H.2.d (quotation marks omitted). The ordinance also requires that "[t]he medical use of marijuana shall comply at all times with the MMMA and the MMMA General Rules, as amended." Byron Township Zoning Ordinance, § 3.2.H.2.a.

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Furthermore, Byron Township requires that primary caregivers obtain a permit to grow medical marijuana. Byron Township Zoning Ordinance, § 3.2.H.3. If a primary caregiver who holds a permit departs from the requirements of either the ordinance or the MMMA, their permit can be revoked. Byron Township Zoning Ordinance, § 3.2.H.3.c. Byron Township's zoning ordinance clarifies that a permit is not required for a qualifying patient's cultivation of marijuana for personal use and that a permit is not required for a qualifying patient's possession or use of marijuana in their dwelling. Byron Township Zoning Ordinance, § 3.2.H.5 and § 3.2.H.6. DeRuiter did not obtain a permit from Byron Township before cultivating medical marijuana as a primary caregiver.

In March 2016, Byron Township sent DeRuiter's landlord a letter, directing the landlord to cease and desist DeRuiter's cultivation of medical marijuana and to remove all marijuana and related equipment or be subject to enforcement action. The letter asserted that violations of the zoning ordinance were a nuisance per se.

In May 2016, DeRuiter filed a complaint, seeking a declaratory judgment that Byron Township's zoning ordinance was preempted by the MMMA and that it was, therefore, unenforceable. She took issue with the ordinance's permit requirement and locational restriction. She also sought injunctive relief to prevent Byron Township from enforcing the ordinance. Byron Township filed a counterclaim, seeking a declaratory judgment and abatement of the alleged nuisance.

The trial court granted DeRuiter's motion for summary disposition, denied Byron Township's motion for summary disposition, and dismissed Byron Township's counterclaim. The trial court held that the zoning

[505 Mich. 138]

provisions in question directly conflicted with the MMMA and that, as a result, those provisions were preempted and unenforceable. Specifically, the trial court held that Byron Township's zoning ordinance impermissibly subjected primary caregivers to penalties for the medical use of marijuana and for assisting qualifying patients with the medical use of marijuana regardless of a caregiver's compliance with the MMMA. According to the trial court, these penalties clearly conflicted with the MMMA, which prohibits penalizing qualifying patients and primary caregivers who are in compliance with the MMMA. See MCL 333.26424(a) and (b). The trial court also determined that Byron Township could not prohibit what the MMMA explicitly authorized—the medical use of marijuana under MCL 333.26427(a). According to the trial court, Byron Township ran afoul of these principles by requiring that a primary caregiver obtain a permit to cultivate marijuana, placing locational restrictions on that cultivation, and subjecting caregivers to fines and penalties for noncompliance.

Byron Township appealed. The Court of Appeals affirmed the trial court in a published opinion, holding that "the trial court did not err by ruling that a direct conflict exist[s] between defendant's ordinance and the MMMA resulting in the MMMA's preemption of plaintiff's home-occupation ordinance." DeRuiter , 325 Mich. App. at 287, 926 N.W.2d 268. Byron Township filed an application for leave to appeal in this

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Court. We ordered oral argument on the application, directing the parties to address "whether the defendant's zoning ordinance pertaining to the location of registered medical marijuana caregivers is preempted by the [MMMA]." DeRuiter v. Byron Twp. , 503 Mich. 942, 921 N.W.2d 537 (2019).

[505 Mich. 139]

II. STANDARDS OF REVIEW

"Whether a state statute preempts a local ordinance is a question of statutory interpretation and, therefore, a question of law that we review de novo." Ter Beek v. City of Wyoming , 297 Mich. App. 446, 452, 823 N.W.2d 864 (2012) ( Ter Beek I ), aff'd 495 Mich. 1, 846 N.W.2d 531 (2014). "We also review de novo the decision to grant or deny summary disposition and review for clear error factual findings in support of that decision." Ter Beek v. City of Wyoming , 495 Mich. 1, 8, 846 N.W.2d 531 (2014) ( Ter Beek II ) (citations omitted).

The MMMA was enacted by voter referendum in 2008. "Statutes enacted by the Legislature are interpreted in accordance with legislative intent; similarly, statutes enacted by initiative petition are interpreted in accordance with the intent of the electors." People v. Mazur , 497 Mich. 302, 308, 872 N.W. 2d 201 (2015). "We begin with an examination of the statute's plain language, which provides ‘the most reliable evidence’ of the electors’ intent." Id. , citing Sun Valley Foods Co. v. Ward , 460 Mich. 230, 236, 596 N.W.2d 119 (1999). "If the statutory language is unambiguous, ... [n]o further judicial construction is required or permitted because we must conclude that the electors intended the meaning clearly expressed." People v. Bylsma , 493 Mich. 17, 26, 825 N.W.2d 543 (2012) (quotation marks and citations omitted; alteration in original).

[505 Mich. 140]

III. ANALYSIS

Generally, local governments may control and regulate matters of local concern when such power is conferred by the state. City of Taylor v. Detroit Edison Co. , 475 Mich. 109, 117-118, 715 N.W.2d 28 (2006). State law, however, may preempt a local regulation either expressly or by implication. Mich. Gun Owners, Inc. v. Ann Arbor Pub. Sch. , 502 Mich. 695, 702, 918 N.W.2d 756 (2018), citing Detroit v. Ambassador Bridge Co. , 481 Mich. 29, 35, 748 N.W.2d 221 (2008). Implied preemption can occur when the state has occupied the entire field of regulation in a certain area (field preemption) or when a local regulation directly conflicts with state law (conflict preemption). Mich. Gun Owners, Inc. , 502 Mich. at 702, 918 N.W.2d 756. In the context of conflict preemption, a direct conflict exists when "the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits." People v. Llewellyn , 401 Mich. 314, 322 n. 4, 257 N.W.2d 902 (1977).

We only address whether the MMMA is in direct conflict with the township's zoning ordinance. We do not address field preemption because the trial court did not base its preemption ruling on that doctrine. See DeRuiter , 325 Mich. App. at 287, 926 N.W.2d 268 (declining to address field preemption because "the trial court never based its ruling on field preemption of zoning"). Likewise, we do not consider express preemption because DeRuiter has

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not argued that the MMMA expressly preempts the zoning ordinance at issue.

Conflict preemption applies if "the ordinance is in direct conflict with the state statutory scheme[.]" Llewellyn , 401 Mich. at 322, 257 N.W.2d 902. An examination of whether the MMMA directly conflicts with the zoning ordinance

[505 Mich. 141]

must necessarily begin with an examination of both the relevant provisions of the MMMA and of the ordinance.

The MMMA affords certain protections under state law for the medical use of marijuana. MCL 333.26424. The MMMA defines the phrase "medical use of marihuana" as "the acquisition, possession, cultivation, manufacture, extraction, use, internal possession, delivery, transfer, or transportation of marihuana, marihuana-infused products, or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition." MCL 333.26423(h). The MMMA states, in pertinent part, that a qualifying patient "is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action ... for the medical use of marihuana in accordance with this act[.]" MCL 333.26424(a). The MMMA also provides the same immunity to a primary caregiver in "assisting a qualifying patient ... with the medical use of marihuana in accordance with this act." MCL 333.26424(b). As a condition of immunity under either subsection, the MMMA requires a primary caregiver or qualifying patient who cultivates marijuana to keep their plants in an "enclosed, locked facility." MCL 333.26424(a) ; MCL 333.26424(b)(2).

[505 Mich. 142]

Both lower courts held that the zoning ordinance here directly conflicts with the MMMA because the ordinance allows Byron Township to sanction a registered primary caregiver's "medical use of marijuana" when that use occurs in a commercially zoned location. In affirming the trial court's holding, the Court of Appeals relied on our decision in Ter Beek II . Like the case before us, Ter Beek II involved a challenge to a local zoning ordinance on the basis that the ordinance was preempted by the MMMA. In that case, we were tasked with deciding whether the city of Wyoming's zoning ordinance conflicted with, and was thus preempted by, the immunity provisions of the MMMA, MCL 333.26424(a) and (b). Ter Beek II , 495 Mich. at 19, 846 N.W.2d 531.

We said yes. The zoning ordinance in Ter Beek II prohibited land uses that were contrary to federal law and subjected such land uses to civil sanctions. Because the manufacture and possession of marijuana is prohibited under federal law, the Wyoming ordinance at issue in Ter Beek II had the effect of banning outright the medical use of marijuana in the city. As a result, there was no way that patients and caregivers could engage in the medical use of marijuana under the MMMA without subjecting themselves to a civil penalty.

The Byron Township ordinance is different than the ordinance we considered in Ter Beek II . It allows for the medical use of marijuana by a registered primary caregiver but places limitations on where the

[949 N.W.2d 98]

caregiver may cultivate marijuana within the township (i.e., in the caregiver's "dwelling or attached garage" as part of a regulated "home occupation"). See Byron Township Zoning Ordinance, § 3.2.H.1 and § 3.2.H.2.d. But despite the differences, DeRuiter argues that the Byron Township ordinance is in direct conflict with the

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MMMA because the act protects a registered caregiver from "penalty in any manner" for "assisting a qualifying patient ... with the medical use of marihuana" so long as the caregiver abides by the MMMA's volume limitations and restricts the cultivation to an "enclosed, locked facility." See MCL 333.26424(b). The Court of Appeals agreed.

Admittedly, our preemption analysis in Ter Beek II considered the MMMA's prohibition on the imposition of a "penalty in any manner." Ter Beek II , 495 Mich. at 24, 846 N.W.2d 531. But while we sided with the plaintiff in Ter Beek II , we cautioned that "Ter Beek does not argue, and we do not hold, that the MMMA forecloses all local regulation of marijuana[.]" Id. at 24 n. 9, 846 N.W.2d 531.

Were we to accept DeRuiter's argument, the only allowable restriction on where medical marijuana could be cultivated would be an "enclosed, locked facility" as that term is defined by the MMMA. MCL 333.26423(d). Because the MMMA does not otherwise limit cultivation, the argument goes, any other limitation or restriction on cultivation imposed by a local unit of government would be in conflict with the state law. We disagree. The "enclosed, locked facility" requirement in the MMMA concerns what type of structure marijuana plants must be kept and grown in for a patient or caregiver to be entitled to the protections offered by MCL 333.26424(a) and (b) ; the requirement does not speak to where marijuana may be grown. In other words, because an enclosed, locked facility could be found in various locations on various types of

[505 Mich. 144]

property, regardless of zoning, this requirement is not in conflict with a local regulation that limits where medical marijuana must be cultivated.

This result is not at odds with Ter Beek II , which involved an ordinance that resulted in a complete prohibition of the medical use of marijuana, despite the MMMA's authorization of such use, see MCL 333.26427(a). A local ordinance is preempted when it bans an activity that is authorized and regulated by state law. For example, in Nat'l Amusement Co. v. Johnson , 270 Mich. 613, 614, 259 N.W. 342 (1935), we considered a city ordinance that banned a person from " ‘tak[ing] part in any amusement or exhibition which shall result in a contest to test the endurance of the participants.’ " We concluded that the ordinance was preempted by a state statute that regulated "endurance contests" and made it unlawful to participate in such contests "except in accordance with the provisions of this act." Id. at 615, 259 N.W. 342 (quotation marks omitted). We explained:

Where an amusement, which has been lawful and unregulated, is not evil per se but may be conducted in a good or bad manner, is the subject of legislation, regulatory, not prohibitory, it would seem clear that the legislature intended to permit continuance of the amusement, subject to statutory conditions. The statute makes it unlawful to conduct a walkathon only in violation of certain conditions. This is merely a common

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legislative manner of saying that it is lawful to conduct it if the regulations are observed. [ Id. at 616-617, 259 N.W. 342.]

We presumed that "the city may add to the conditions" in the statute but found it impermissible that "the ordinance attempt[ed] to prohibit what the statute permit[ted]." Id. at 617, 259 N.W. 342. As with the ordinance in Nat'l Amusement , Wyoming's ordinance in Ter Beek II had the effect of wholly prohibiting an activity (the medical

[505 Mich. 145]

use of marijuana) that the MMMA allows. But that does not mean that local law cannot "add to the conditions" in the MMMA. Id. DeRuiter's argument would result in an interpretation of the MMMA that forecloses all local regulation of marijuana—the exact outcome we cautioned against in Ter Beek II . See Ter Beek II , 495 Mich. at 24 n. 9, 846 N.W.2d 531. DeRuiter nevertheless emphasizes our statement that "the [Wyoming] Ordinance directly conflicts with the MMMA by permitting what the MMMA expressly prohibits—the imposition of a ‘penalty in any manner’ on a registered qualifying patient whose medical use of marijuana falls within the scope of § 4(a)’s immunity." Id. at 20, 846 N.W.2d 531. We appreciate the apparent contradiction and take this opportunity to clarify. Our analysis in Ter Beek II —in particular, our focus on whether the MMMA permitted the city to impose a sanction for violating the Wyoming ordinance—suggested that the MMMA's immunity language was the source of the conflict. That was true in Ter Beek II because the ordinance left no room whatsoever for the medical use of marijuana.

In Ter Beek II , the conflict giving rise to that preemption can be viewed as whether the city of Wyoming had completely prohibited the medical use of marijuana that the electors intended to permit when they approved the MMMA. That view meshes with our caselaw, as indicated in our discussion of Nat'l Amusement . More recently, we declined to find a conflict between state and local law when a locality enacted regulations that are not "unreasonable and inconsistent

[505 Mich. 146]

with regulations established by state law," so long as the state regulatory scheme did not occupy the field. Detroit v. Qualls , 434 Mich. 340, 363, 454 N.W.2d 374 (1990) (holding that a city ordinance regulating the quantity of fireworks a retailer may store was not in conflict with a state law that limited possession to a "reasonable amount"). Similarly, in Miller v. Fabius Twp. Bd. , 366 Mich. 250, 255-257, 114 N.W.2d 205 (1962), we held that a local ordinance that prohibited powerboat racing and water skiing between the hours of 4:00 p.m. and 10:00 a.m. was not preempted by a state law that prohibited the activity " ‘during the period 1 hour after sunset to 1 hour prior to sunrise.’ " In both cases, we quoted favorably the following proposition:

The mere fact that the State, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires

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creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail. [ Miller , 366 Mich. at 256-257, 114 N.W.2d 205, quoting 37 Am. Jur., Municipal Corporations, § 165, p. 790.

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See also Qualls , 434 Mich. at 362, 454 N.W.2d 374, quoting 56 Am. Jur. 2d, Municipal Corporations, § 374, pp. 408-409.]

Under this rule, an ordinance is not conflict preempted as long as its additional requirements do not contradict the requirements set forth in the statute.

Plaintiff has not argued that the state's authority to regulate the medical use of marijuana is exclusive. The geographical restriction imposed by Byron Township's zoning ordinance adds to and complements the limitations imposed by the MMMA; we therefore do not believe there is a contradiction between the state law and the local ordinance. As in Qualls and Miller , the local ordinance goes further in its regulation but not in a way that is counter to the MMMA's conditional allowance on the medical use of marijuana. We therefore hold that the MMMA does not nullify a municipality's inherent authority to regulate land use under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq. , so long as the municipality does not

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prohibit or penalize all medical marijuana cultivation, like the city of Wyoming's zoning ordinance did in Ter Beek II , and so long as the municipality does not impose regulations that are "unreasonable and inconsistent with regulations established by state law." Qualls , 434 Mich. at 363, 454 N.W.2d 374. In this case, Byron Township appropriately used its authority under the MZEA to craft a zoning ordinance that does not directly conflict with the MMMA's provision requiring that marijuana be cultivated in an enclosed, locked

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facility.

DeRuiter also argues that Byron Township's permit requirement directly conflicts with the MMMA because it impermissibly infringes her medical use of marijuana. Again, we disagree. As with the zoning ordinance's locational restriction, the permit requirement does not effectively prohibit the medical use of marijuana. The MZEA allows Byron Township to require

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zoning permits and permit fees for the use of buildings and structures within its jurisdiction. Accordingly, Byron Township may require primary caregivers to obtain a permit and pay a fee before they use a building or structure within the township for the cultivation of medical marijuana. We express no opinion on whether the requirements for obtaining a permit from the township are so unreasonable as to create a conflict with the MMMA because that argument has not been presented to us.

To the extent DeRuiter argues that the immunity provisions of the MMMA contribute to a blanket prohibition on local governments regulating the "medical use" of marijuana with respect to time, place, and manner of such use, that argument sounds in field preemption. DeRuiter made this claim in the trial court. But because the trial court and the Court of Appeals held that the ordinance was conflict preempted, neither court reached the issue. Accordingly, we decline to address it at this time.

IV. CONCLUSION

We hold that Byron's Township's home-occupation zoning ordinance does not directly conflict with the MMMA. Accordingly, we reverse the Court of Appeals’ holding to the contrary and remand to the trial court

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for further proceedings consistent with this opinion. We do not retain jurisdiction.

McCormack, C.J., and Markman, Zahra, Viviano, Clement, and Cavanagh, JJ., concurred with Bernstein, J.