Michigan's medical marijuana business is growing like a weed, one which local municipalities would be wise to get under some form of local control before it's too late, or costly.
In case you haven't heard, Michigan voters in 2008 approved a state law legalizing the use of marijuana for certain medicinal purposes. Patients using marijuana must meet certain criteria and apply for a medical marijuana registry identification card with the Michigan Department of Licensing and Regulatory Affairs (LARA). Those who receive cards can grow up to 12 marijuana plants themselves, or if they prefer, have a caregiver licensed by LARA grow their plants for them. Under the law, caregivers may grow up to 72 plants, which includes a dozen per patient, plus an additional 12 for themselves as patients.
There are 33,395 active, registered caregivers in Michigan as of June 17, according to LARA, up from 27,046 in 2013, with no signs of a decrease. As the number of caregivers increases, so does the demand for facilities to conduct grow operations, which are a protected activity in accordance with state law. In fact, the Michigan Supreme Court in 2014 ruled local governments can't prohibit actions protected under the Michigan Medical Marijuana Act (MMMA).
Of course, none of the above information is new for public officials in the city of Birmingham, where the city's zoning ordinance attempting to prohibit grow facilities was challenged by the American Civil Liberties Union, and ultimately found to be unconstitutional under Michigan law. Despite the city's attorney confirming that the ordinance isn't enforceable, the city's planning director continues to regard medical marijuana as a prohibited use as the city's planning board continues to drag its feet to amend the land use zoning ordinance to comply with state law, thus opening the city to potential lawsuits.
While the ordinance has yet to be challenged in Birmingham, it seems inevitable that someone will force the issue there or in other municipalities that have previously attempted to keep medical marijuana operations out through zoning ordinances.
By and large, the majority of medical marijuana growing operations are conducted in accordance with state law. Failing to do so would result in financial and criminal penalties. However, concerns about such facilities often stem from the strong, distinctive odor wafting from just such a facility, and the high potential for them to be targeted by criminals looking to steal and sell equipment and plants.
The most effective way for municipalities to address such concerns is through carefully crafted zoning ordinances. Instead of blocking such facilities, it would better serve communities to provide thoughtful regulations that address concerns of the community. That was just what Commerce Township recently attempted in approving their recent zoning ordinance, a community which has about 40 active grow facilities.
Under the Commerce Township zoning ordinance, medical marijuana cultivation facilities are permitted under special use zoning, and are required to meet several requirements, including standards regarding security, safety and other issues. And, while proponents and operators of the facilities voiced concern about some requirements being overly burdensome, the township indicated it would maintain an open dialogue to address concerns.
We feel taking a proactive approach to addressing medical marijuana grow facilities is a direction that Birmingham, as well as other municipalities dealing with the issue, should move on soon, rather than later. Birmingham's reluctance to follow the state's MMMA has already resulted in one lawsuit. We doubt it will be much longer before the issue is passed around to another party that will challenge the city. It would be a costly lesson to learn, and one that can be prevented.