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Michigan Court of Appeals Strikes Down Zoning Ordinance Prohibiting Medical Marijuana Use

August 1, 2012 Medical Marijuana

In Ter Beek v. City of Wyoming, the Michigan Court of Appeals voided a city ordinance that would prohibit activity that is permitted under the Michigan Medical Marihuana Act.

In November 2010, Wyoming, Michigan, a town of about 70,000 people in suburban Grand Rapids, enacted a zoning ordinance that prohibited any land use that would be illegal under federal law, with the express purpose of prohibiting medical marijuana use.

The Michigan Medical Marihuana Act permits qualifying patients to use marijuana for medical conditions and for registered caregivers to grow and provide marijuana to patients. However, the federal Controlled Substances Act prohibits marijuana use and cultivation.

Related:  The Washtenaw County Circuit Rules That City Zoning Laws Are Not Preempted By The Michigan Medical Marihuana Act

Plaintiff Ter Beek, a qualifying patient under the MMMA, challenged the zoning ordinance, arguing that the MMMA should preempt the zoning ordinance because the two laws are in direct conflict, as the MMMA is a state law and the zoning ordinance is a city law. The City of Wyoming responded that the ordinance was not preempted by the MMMA because the ordinance enforced federal law set forth in the Controlled Substances Act.

The trial court found that the CSA preempted the MMMA, as the two are in conflict, and declined to decide whether the MMMA preempted the ordinance.

Preemption is where one law is given effect over another law when two laws are in direct conflict. The law from the superior government is the law that is given effect. Therefore, federal law preempts state law, and state law preempts city law.

Based on these principles, the Court found that the MMMA preempts the city ordinance to the extent that the ordinance seeks to penalize activity permitted by the MMMA.

Addressing Wyoming’s argument, the Court found that the CSA would not preempt the MMMA here because the two laws are not in direct conflict. The MMMA grants immunity and defenses from penalties from the state government, and does not purport to grant immunity or defenses from federal prosecution. Moreover, states are not bound to enforce federal law.

The Court of Appeals found for Ter Beek, ruling that Wyoming’s ordinance is void and unenforceable to the extent that it punishes medical use of marijuana in compliance with the MMMA.

Contact ArborYpsi Law at 734-883-9584 or at bernstein@arborypsilaw.com to speak with attorney Sam Bernstein.

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