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Charter Township of York v. Miller

Court of Appeals of Michigan

January 18, 2018

CHARTER TOWNSHIP OF YORK, Plaintiff/Counter-Defendant-Appellant,
v.
DONALD MILLER, KATHERINE NULL, and DAVID MILLER, Defendants/Counter-Plaintiffs-Appellees.

         Washtenaw Circuit Court LC No. 15-000847-CZ

          Before: Murphy, P.J., and Sawyer and Beckering, JJ.

          Per Curiam.

         Plaintiff appeals as of right from the trial court judgment that declared that plaintiff could not enforce its zoning ordinance's prohibition against outdoor growing of medical marijuana because the ordinance conflicted with the provisions of the Michigan Medical Marihuana Act, MCL 333.26421 et seq. (MMMA), and therefore, was preempted. We affirm.

         Defendants, David Miller and Donald Miller, are brothers who resided together at Donald's home located in Milan, Michigan, in York Township. Both were qualified medical marijuana patients. Defendant, Katherine Null, formerly in a long term relationship with David, also was a qualified medical marijuana patient, and she served as David's registered medical marijuana primary caregiver. Null rented a bedroom from Donald, but she did not reside with the Millers. During 2014, Null directed David to construct a medical marijuana structure in Donald's backyard for containing the cultivation of medical marijuana for patients connected to Null through registration under the MMMA. Starting in July 2015, Null rented space on Donald's property for that purpose. Defendants failed to obtain a construction permit for the medical marijuana outdoor growing facility, never got permits before installing an electrical and watering system, and never obtained a certificate of occupancy.

         Under the Michigan Zoning Enabling Act, MCL 125.3101 et seq. (MZEA), plaintiff adopted its zoning ordinance regulations for land development and use for the public health, safety, and welfare of the local community. Use of property by a medical marijuana caregiver was permitted only under Charter Township of York Zoning Ordinance (Zoning Ordinance) § 40.204 as a "Home Occupation" defined as:

An occupation or profession customarily conducted entirely within a dwelling by the persons residing within the dwelling and not more than one person who does not reside within the dwelling, and where such use is clearly incidental to the principal use of the dwelling as a residence.
Medical marijuana caregivers were required to comply with Zoning Ordinance §§ 40.204(A)(13)(e) and (f) for marijuana use and cultivation:
(e) All medical marihuana shall be contained within the main building in an enclosed, locked facility inaccessible on all sides and equipped with locks or other security devices that permit access only by the registered primary caregiver or qualifying patient, as reviewed and approved by the Building Official;
(f) All necessary building, electrical, plumbing, and mechanical permits shall be obtained for any portion of the residential structure in which electrical wiring, lighting and/or watering devices that support the cultivation, growing, or harvesting of marihuana are located[.]

         Plaintiff learned that defendants built their medical marijuana facility outdoors that failed to comply with zoning and construction regulations. Instead of enforcing its zoning ordinance regulations, plaintiff filed a declaratory judgment action seeking the trial court's determination of the validity of its zoning and construction regulations and its right to enforce them as they applied to the cultivation and use of medical marijuana in zoned residential locations and subdivisions.

         Before filing their respective motions for summary disposition, the parties stipulated to the essential facts. They agreed that defendants' medical marijuana use failed to comply with plaintiff's home occupation zoning ordinance because Null did not reside at Donald's property and defendants grew medical marijuana outside and not entirely within Donald's house. They agreed that, except for defendants' zoning and construction code violations, defendants' medical marijuana use and their outdoor growing facility complied with the MMMA. The parties stipulated that defendants' violations of plaintiff's zoning ordinances and construction code regulations constituted nuisances per se subject to penalties including injunctive relief and abatement.

         Plaintiff argued in its motion for summary disposition that under the MZEA it had broad authority to prohibit outdoor medical marijuana growing. Defendants countered that the MMMA preempted plaintiff's home occupation zoning ordinance because it directly conflicted with the MMMA. The trial court ruled that direct conflicts existed between the MMMA and plaintiff's ordinance. The trial court found that the Legislature amended the MMMA during 2012 specifically to permit outdoor cultivation and held that plaintiff's ordinance conflicted by allowing medical marijuana growing only as an indoor home occupation. Further, the trial court held that plaintiff's ordinance also conflicted because the MMMA did not require Null to live on the premises where the marijuana was grown. The trial court ruled that plaintiff could not exclude outdoor cultivation because the MMMA permitted doing so. The trial court ruled further that defendants' structure was subject to construction regulations and zoning so long as the zoning did not forbid outdoor cultivation of medical marijuana. The trial court ordered defendants to seek the required permits and ordered plaintiff to review and grant the permits if defendants' structure complied with the building code. Plaintiff now appeals.

         Plaintiff first argues that its authority under the MZEA to adopt ordinances permitted it to regulate medical marijuana and restrict registered caregivers' marijuana growing to indoors in areas zoned residential. We disagree.

         "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 (Ter Beek I), 297 Mich.App. 446, 452; 823 N.W.2d 864 (2012), aff'd Ter Beek v City of Wyoming, 495 Mich. 1; 846 N.W.2d 531 (2014) (Ter Beek II). We also review "de novo a decision to grant or deny a declaratory judgment; however, the trial court's factual findings will not be overturned unless they are clearly erroneous." Id. Findings of fact are clearly erroneous where no evidentiary support exists or if this Court is left with a definite and firm conviction that a mistake has been made. Trahey v City of Inkster, 311 Mich.App. 582, 593; 876 N.W.2d 582 (2015).

         "Under Const 1963, art 7, § 22, a Michigan municipality's power to adopt resolutions and ordinances relating to municipal concerns is 'subject to the constitution and law'." People v Llewellyn, 401 Mich. 314, 321; 257 N.W.2d 902 (1977). "Michigan is strongly committed to the concept of home rule, and constitutional and statutory provisions which grant power to municipalities are to be liberally construed." Bivens v Grand Rapids, 443 Mich. 391, 400; 505 N.W.2d 239 (1993). Local governments, however, may exercise reasonable control to regulate matters of local concern only in a manner and to ...


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