Annual planning and zoning court case summaries now ready

The annual May 2014 summary of land use court cases is prepared and available to the public. Many of the 23 land use-related court cases in the past 12 months dealt with medical marijuana, Right to Farm Act, local zoning authority and other issues.

The Summary of Planning and Zoning Court Decisions, 2014, covers 23 court cases and attorney general opinions from May 1, 2013 to April 30, 2014 and is now available online. l MSU Extension
The Summary of Planning and Zoning Court Decisions, 2014, covers 23 court cases and attorney general opinions from May 1, 2013 to April 30, 2014 and is now available online. l MSU Extension

Court cases and legal opinions that focused on land use issues during the past 12 months were dominated by medical marihuana, Right to Farm Act and local zoning authority issues. Michigan State University Extension has recently completed its annual compilation of planning and zoning court cases and attorney general opinions. The summary, entitled Summary of Planning and Zoning Court Decisions, 2014, covers 23 court cases and attorney general opinions from May 1, 2013 to April 30, 2014 and is now available online. Since 2003, MSU Extension has made this annual overview available in a single document format. All past summaries are available at the Land Use Pamphlets web page.

There were three major cases on medical marijuana, including a major case by the Michigan Supreme Court (Ter Beek v City of Wyoming 493 Mich App 957 (2013)). Many local governments in Michigan have adopted zoning regulations concerning various aspects of medical marijuana service establishments as well as other related activities. There were two questions before the Supreme Court:

  • Does the Michigan Medical Marijuana Act (MMMA) (MCL 333.26421 et seq.) supersede local regulation?
  • Does federal law supersede the MMMA?

The Supreme Court ruled the federal substances act does not preempt section 4(a) of MMMA. This is because the MMMA does not decriminalize use of marijuana under federal law and does not stop federal drug enforcement. However, section 4(a) of MMMA does preempt local government regulation if that regulation directly conflicts with the state statute. In other words, if it is allowed by MMMA, it must be allowed by local ordinance as well as vice-versa. This court ruling does not mean there cannot be local regulation of medical marijuana, but the court did not say to what extent that may be.

In a second Michigan Supreme Court case, People v Koon 494 Mich. 1, ruled that if another state law conflicts with the MMMA, then the MMMA rules. When the MMMA conflicts with another statute, the MMMA provides that “[a]ll other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana . . . .” In this case, the defendant was driving a motor vehicle while under the influence of medical marijuana. This was not legal under the motor vehicle code, but allowed of a patient under the MMMA. So the MMMA supersedes the vehicle code.

In a third case (People v Green 494 Mich. 865) the court ruled immunity does not extend to a registered qualifying patient who transfers marijuana to another registered qualifying patient for the transferee’s use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor’s own condition or symptoms.”’ The Michigan Court of Appeals found only Michigan residents can have a Michigan Medical Marijuana Card (People v Jones 301 Mich. App. 566) and food prepared with THC extract of marijuana is not medical marijuana under the MMMA (People v Carruthers 301 Mich. App. 590). Finally, in a footnote in Lott v City of Birmingham (unpublished) and Ter Beek v City of Wyoming the court has used the spelling “marijuana” with a “J.”

Two major cases concerning the Right to Farm Act (MCL 286.471 et seq.) were also published this year. The first Appeals Court case ruled that showing an activity is a farm operation, product, is burden of person claiming RTFA protection (Lima Twp. v. Bateson 302 Mich. App. 483).

“. . . we hold that, where a party asserts the RTFA as a defense, the party asserting the defense bears the burden to prove by a preponderance of the evidence that the challenged conduct is protected under the RTFA.” (Emphasis and brackets added)

In the case, the landowner had 30 acres and said he was developing a tree farm, involving earth movement. This was disputed by the township.

In the second case, Sena Scholma Trust v. Ottawa Cnty. Rd. Comm'n 303 Mich. App. 12, the property owner had access to his crop via a cul-de-sac, but wanted access from a main road. The road commission denied his request for a driveway permit, and he filed a lawsuit in response. The Appeals court ruled nothing in the RTFA or in published Generally Accepted Agricultural Management Practices (GAAMPs) has any content about driveways for farm fields, so local regulation applies. (Local regulation is superseded when subject is covered in RTFA or GAAMPs. If the subject of the regulation is not in RTFA or GAAMPs, local government can make their own call.)

“. . . Legislature intended the RTFA to be used as a shield by farmers. . . . to protect farmers from nuisance lawsuits. . . . . However, plaintiffs are not using the RTFA as a shield, and no one has claimed the farm to be a nuisance. . . . Rather, plaintiffs are using the RTFA as a sword, seeking to force the [road commission] to grant them access to the property. . . .” [from the cul-de-sac]. (Emphasis and brackets added)

Both RTFA rulings are significant cases, establishing the farmer has the burden to show they have RTFA protection, and the RTFA is a shield to protect from nuisance lawsuits, not a sword to circumvent local laws.

Other topics covered by rulings this past year focused on local ordinance and local zoning jurisdiction:

  • State law does not preempt the field of liquor control regulation, and so local zoning about location and extent of liquor retail sales can be done (Maple BPA, Inc. v. Charter Twp. of Bloomfield 302 Mich. App.505)
  • The Land Division Act (MCL 560.101 et seq.) does not preempt local regulation of land divisions, parent parcels, divisions, adjacent land transfers (Michigan Attorney General Opinion 7276, March 11, 2014).
  • A sport shooting range that existed July 5, 1994 and operates in compliance with generally-accepted operation practices can continue. It does not matter if it was commercial or not, and if it shifts from non-commercial to commercial or visa-versa (Addison Twp. v. Barnhart 495 Mich. 90).

Other rulings included a takings case from a rezoning to low density residential, restricting the number of digital billboards, and a federal court case on volunteer firefighters being considered employees (thus maybe not able to be a member of a planning commission or zoning board of appeals in Michigan).

This summary of court cases will also be presented at the June 12, 2014 Citizen Planner Advanced Academy immediately following lunch. There is still time to register to attend the Advanced Academy.

For regular updates on planning and zoning related court cases, attorney general opinions, legislation, research and training opportunities MSU Extension provides an email list-serve for professional planners, zoning administrators, municipal attorneys, and others. For information about that service, contact the author.

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