Circuit Court LC No. 16-004195-CZ
Before: Hoekstra, P.J., and Murphy and Markey, JJ.
appeals by right the trial court's order granting
plaintiff summary disposition and declaring that
defendant's ordinance conflicted with the provisions of
the Michigan Medical Marihuana Act, MCL 333.26421 et
seq. (MMMA); therefore, it was preempted. We affirm.
adopted its zoning ordinance regulations for land development
and use under the Michigan Zoning Enabling Act, MCL 125.3101
et seq. (MZEA). Use of property by a medical
marijuana registered caregiver was permitted only under Byron
Township Zoning Ordinance (Zoning Ordinance) §§
3.2.G and H as a "home occupation." Defendant
prohibited registered caregivers from the medical use of
marijuana in a commercial property. Zoning Ordinance §
3.2.H.3, required medical marijuana caregivers to submit an
application and pay a fee to obtain a township permit before
engaging in any medical use of marijuana. Violation of the
provisions of the ordinance could result in revocation of the
permit, which would require the caregiver to cease all
medical marijuana activity until defendant granted a new
a registered qualified medical marijuana patient and a
registered primary caregiver to qualifying patients grew
medical marijuana in an enclosed, locked facility at a
commercial location within the township. On March 22, 2016,
the township supervisor sent plaintiff a letter advising that
plaintiff's medical marijuana related activities
constituted a zoning violation. He ordered plaintiff to cease
and desist all medical marijuana activities under threat of
an enforcement action by defendant. Not long after, plaintiff
sued defendant for declaratory and injunctive relief on the
ground that defendant threatened her exercise of her rights
and privileges under the MMMA despite her compliance with the
MMMA. Plaintiff alleged that defendant's ordinance
prohibited what the MMMA permitted. Consequently, it directly
conflicted with the MMMA and required that the trial court
hold that the MMMA preempted the ordinance.
countersued for enforcement of its ordinance and abatement of
the nuisance. Defendant sought a declaratory judgment that
its ordinance did not conflict with the MMMA.
parties each moved for summary disposition. Both parties
asserted that the dispositive issue was whether the MMMA
preempted defendant's home occupation ordinance.
Plaintiff argued that the ordinance directly conflicted with
the MMMA. Defendant asserted that preemption did not apply
because its ordinance only restricted the location where MMMA
compliant activities could occur and did not prohibit them
altogether. The trial court held that the ordinance directly
conflicted with the MMMA, so the MMMA preempted the
ordinance. Defendant now appeals.
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) (Ter Beek II). We also review de novo the
trial court's decision to grant or deny a motion for
summary disposition in an action for a declaratory judgment.
Lansing Schools Ed Ass'n v Lansing Bd of Ed (On
Remand), 293 Mich.App. 506, 512-513; 810 N.W.2d 95
(2011). We review for clear error any of the trial
court's factual findings and review de novo the trial
court's interpretation of the MMMA. State v
McQueen, 293 Mich.App. 644, 653; 811 N.W.2d 513 (2011).
argues that the trial court erred by holding that the MMMA
preempted its home occupation ordinance because it merely
regulated land use by restricting the location of medical use
of marijuana while allowing patients and caregivers to fully
exercise their rights and privileges. We disagree.
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 may control and regulate matters of local concern
so long as their regulations do not conflict with state law.
City of Taylor v Detroit Edison Co, 475 Mich. 109,
117-118; 715 N.W.2d 28 (2006).
MZEA provides in relevant part:
A local unit of government may provide by zoning ordinance
for the regulation of land development and . . . regulate the
use of land and structures . . . to ensure that use of the
land is situated in appropriate locations and . . . to