Deciphering Michigan’s Zoning Impact on Home Cannabis Growth

Are Local Michigan Municipalities Utilizing Zoning Ordinances to Discourage Citizens from Cultivating Cannabis in their Residences?

An Opinion Piece By: Anton Harb

The State of Michigan has always been at the forefront of initiating progressive cannabis laws. A unique tool MI citizens are able to utilize in their quest to ensure their voices are heard is the voter ballot initiative. Ballot initiatives are the quintessential example of voters heading to the ballot box and creating laws we the people want enacted. To ensure government respects the will of the people, a ballot initiative that has been passed takes a Super Majority vote in both chambers of the legislature to amend. In 2008, MI voters passed the Michigan Medical Marijuana Act (MMMA). This law provides access to medical cannabis to some of our sickest residents including children. The law provides for the creation of the Caregiver system. Caregivers are authorized to cultivate up to 72 cannabis plants for a maximum of 5 registered patients. The law also authorizes individual medical patients to cultivate up to 12 cannabis plants within their private residence in lieu of having a designated caregiver. In 2018, MI voters passed the Michigan Regulation and Taxation of Marihuana Act (MRTMA). The MRTMA provided for a regulated adult use cannabis system. These 2 pieces of legislation created one of the most powerful and progressive cannabis systems in the world. Both pieces of legislation were drafted by the people, and overwhelmingly passed by the people.   

As with any legislation, there will always be those in disagreement. The beauty of their disagreement is it has no bearing on our rights as citizens to act within the law as we see fit. Just because MI voters passed both the MMMA and the MRTMA, we have seen opposition through the years from corrupt politicians like former Speaker of the House Rick Johnson, defunct lobbying groups and local conservative municipalities who disagree with cannabis related activities. The most frequently attacked part of the MMMA is the Caregiver system. Many local municipalities in MI have waged war on Caregivers and their ability to cultivate cannabis in private residences. In 2020, a poorly drafted MI Supreme Court opinion DeRuiter v Byron Township was issued. DeRuiter, a registered caregiver, was targeted by her township because of her decision to cultivate medicine for her patients. The end result was an opinion that allowed for townships to enact zoning standards against Caregivers. Many townships who disagree with Caregiver activities have created zoning standards that are difficult for many Caregivers to comply with. The end result is Caregivers simply ignoring the zoning ordinances leading to penalties and fines or worse.  

The MI Supreme Court made clear in DeRuiter the opinion did not apply to individual medical patients. They also clarified that the opinion did not apply to the MRTMA. Did any of us believe disingenuous townships would not attempt to push the envelope? Of course not! Local municipalities in MI operate like medieval fiefdoms passing ordinances blessed off on by special interest groups and self serving attorneys. State law be damned!

The MRTMA is seperate from the MMMA and is very well written. The authors of the ballot initiative learned lessons from the MMMA and made sure to prevent some of the issues we saw post 2008. The Michigan Regulation and Taxation of Marihuana Act of 2018 (MRTMA), 333.27956 Sec 6 (2) states “A municipality may adopt other ordinances that are not unreasonably impractical and do not conflict with this act or with any rule promulgated pursuant to this act”. Section 333.27955 Sec 5 (1) states “Notwithstanding any other law or provision of this act, and except as otherwise provided in section 4 of this act, the folowing acts by a person 21 years of age or older are not unlawful, are not an offense, are not grounds for seizing or forfeiting property, are not grounds for arrest, prosecution, or penalty in ANY manner, are NOT grounds for search or INSPECTION, and are not grounds to deny any other right or privilege”.

(b) Within the person’s RESIDENCE, possessing, storing, and processing not more than 10 ounces of marihuana and any marihuana produced by marihuana plants CULTIVATED ON THE PREMESIS and cultivating not more than 12 marihuana plants for personal use, provided that no more than 12 marihuana plants are possessed, cultivated, or processed on the premises at once”

Given the clear cut language of the MRTMA, and a local municipality’s inability to pass ordinances that create a direct conflict with the law, we should be safe from government interference. Think again! My example for this article is Macomb Township. I have resided in Macomb Township for over 10 years. In 2021, Macomb Township passed a “marijuana ordinance” that not only directly conflicts with the MRTMA, but also threatens to enact punitive damages upon any township resident who does not comply. Macomb Township bases their legal authority to enact the ordinance from the DeRuiter opinion. A summary of the ordinance includes mandating INDIVIDUAL medical patients and adults 21 years and older looking to cultivate up to 12 cannabis in their residence to do the following:

Fill out a “zoning certificate” application. Get it notarized, list all equipment to be used and be limited to a maximum of 100 square foot of growing space in the home.

Pay Macomb Township $500 a year!!  

A township resident who is looking to store herbicides, pesticides and fertilizers specifically related to cannabis cultivation must have it inspected and approved by the fire marshal and building inspector.  

The cherry on top is a township inspection where we are supposed to let the city waltz into a 4th amendment protected residence and INSPECT the grow area.  

I sit here and scratch my head. I understand permits being required if someone modifies their home. To require a “zoning certificate” and inspection specifically to cultivate 12 cannabis plants is absurd. The township states DeRuiter is the basis for their authority to enact these types of zoning standards via the ordinance. DeRuiter specifically states the opinion does not apply to the MRTMA. The MRTMA states clearly an adult 21 years or older can not be subject to search, seizure or INSPECTION. The MRTMA also states an adult 21 years or older can not be subject to penalty of ANY manner as long as the individual is cultivating within the legal limit of 12 cannabis plants. My first question is who is the attorney who signed off on this ordinance? As a township resident we want our tax money back. My second question is what are the penalties if I refuse to comply? I have asked the Macomb Township supervisor Frank Viviano, the Board of Trustees and the head of Building Inspection for answers to these questions and have not been contacted to date.  

As a 100% disabled veteran I rely on cannabis as a medicine to allow me to ease the symptoms of my disabilities incurred from my service to this country. I served this country because I believe in the ideas we were founded upon. I also expect the government to respect the will of the people and not create rules that directly conflict with clearly defined state law. What does all this mean? How do we interact with a local government who will not respond to one of their own residents? For me, I have no intention of complying with this ordinance as an adult 21 years or older acting under the MRTMA. I have always respected the rule of law. The law says I am free to cultivate up to 12 cannabis plants without the threat of inspection or penalty in any manner. Areas such as Macomb Township must be held accountable for creating ordinances that are clearly preempted by MI state law. We should be able to solve these issues with constructive dialogue. I will maintain my belief in the rule of law and would invite Macomb Township to do the same!

In the words of John Lewis,

 “Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble.”

For anyone interested in learning more about Macomb Township’s ordinance and the lengths they are willing to go to discourage home cultivation please refer to the attached link:

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