                          STATE OF MICHIGAN

                           COURT OF APPEALS



CHARTER TOWNSHIP OF YPSILANTI,                                     UNPUBLISHED
                                                                   October 30, 2018
               Plaintiff-Appellant,

v                                                                  No. 340487
                                                                   Washtenaw Circuit Court
JUDITH PONTIUS,                                                    LC No. 16-000800-CZ

               Defendant-Appellee.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        Plaintiff, Charter Township of Ypsilanti, appeals as of right from the trial court’s order
declaring plaintiff’s zoning ordinance in conflict with the Michigan Medical Marihuana Act
(MMMA), MCL 333.26421 et seq., and, therefore, preempted by the MMMA. The trial court
held that plaintiff’s zoning ordinance was void and unenforceable to the extent that it prohibited
registered primary caregivers who complied with the MMMA from growing medical marijuana1
in residential districts for their qualified patients. We affirm.

                                      I. BACKGROUND

         Under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq., plaintiff
adopted zoning ordinance regulations specifying that medical marijuana dispensaries and
medical marijuana nurseries were prohibited as “home occupations” in single-family residential
districts. Ypsilanti Code §§ 401(6)(c)(7) and (8).2 Relevant to this appeal, the zoning code
provided the following definitions:



1
  Although the spelling “marihuana” is used throughout the MMMA and Ypsilanti Zoning Code,
“this Court uses the more common spelling, ‘marijuana,’ in its opinions,” People v Anderson
(On Remand), 298 Mich App 10, 12 n 1; 825 NW2d 641 (2012), unless quoting legislative
sources.
2
 We note that the Ypsilanti zoning code was substantially amended by Ypsilanti Ordinance No.
2018-476, effective March 1, 2018. See Ypsilanti Ordinance No. 2018-476, available at
<https://library.municode.com/mi/ypsilanti_charter_township,_(washtenaw_co.)/ordinances/code


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               Home occupation: An occupation carried on by an occupant of a dwelling
       unit as a secondary use which is clearly subservient to the use of the dwelling for
       residential purposes.

                                              * * *

               Medical marihuana dispensary: Any structure used for dispensing
       marihuana by a primary caregiver or caregivers to one or more qualifying
       patient(s). A medical marihuana dispensary does not include a qualifying
       patient’s residence if the marihuana transferred is exclusively for the qualifying
       patient’s use.

               Medical marihuana nursery: Any structure which is used, intended for
       use, or designed for use in planting, propagating, cultivating, growing, harvesting,
       manufacturing, producing, processing, preparing, packaging, repackaging, or
       storing medical marihuana for one or more qualifying patients. A medical
       marihuana nursery does not include a qualifying patient’s residence if the
       marihuana is exclusively for the qualifying patient’s use. [Ypsilanti Code § 201.]

Although plaintiff’s zoning code did not permit a medical marijuana dispensary or nursery in a
residentially zoned district, such uses were permitted in districts zoned for light industrial use,
subject to special conditions. Ypsilanti Code § 1402(8).

       Plaintiff’s zoning code provides civil penalties for violations as follows:

               Any person, firm or corporation violating any provision of this ordinance
       shall be responsible for a civil infraction and shall be subject to a fine as follows:

               (1) The fine for any first violation shall be $100.00;

               (2) The fine for any violation which the violator has, within the past two
       years, been found in violation of once before, shall be $250.00;




_of_ordinances?nodeId=881651> (accessed October 24, 2018). Although the code has been
largely reorganized, the substance of the relevant provisions remains the same. See current
Ypsilanti Zoning Code §§ 201 (defining relevant terms), 306(3) (providing schedule of uses for
residential districts), 306(6) (providing schedule of uses for industrial districts), 1802(c)(7)
(prohibiting medical marihuana dispensaries as home occupations), and 1802(c)(8) (prohibiting
medical marihuana nurseries as home occupations), 1841 (stating specific use conditions
applicable to medical marihuana dispensaries and nurseries), and 3100 through 3103 (providing
penalties for violations of zoning code). All citations to the Ypsilanti zoning code in the body of
this opinion refer to the relevant provisions as codified before the 2018 amendment.


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               (3) The fine for any violation which the violator has, within the past two
       years, been found in violation of twice before, shall be $500.00. [Ypsilanti Code
       § 3100.]

In addition, property uses in violation of plaintiff’s zoning code could be declared a public
nuisance that could be abated by order of any court of competent jurisdiction. Ypsilanti Code
§ 3101. Under §§ 3102 and 3103, owners of properties that violated plaintiff’s zoning use
restrictions were subject to fines that were imposed for each day that a violation occurred.

        Plaintiff initiated this action for declaratory and injunctive relief against defendant, Judith
Pontius, a registered medical marijuana primary caregiver and qualified patient, to abate a public
nuisance at her residential property located within the township, alleging that she grew medical
marijuana in her basement for her registered qualified patients. According to plaintiff, its zoning
code permitted caregivers who were also patients to cultivate medical marijuana in their homes
for their personal use, but they could not do so as a “home occupation” for any of their patients.

        Both parties moved for summary disposition. Plaintiff argued that, under the MZEA, it
was allowed to limit the areas in which caregivers may cultivate medical marijuana for their
qualified patients and that its home occupation ordinance did not conflict with the MMMA and,
therefore, was not preempted by it. Plaintiff asserted that defendant could not rely on the
MMMA’s immunity provision because she was operating a commercial medical marijuana
operation at her residence, a location it could regulate. Defendant, on the other hand, argued that
plaintiff’s prohibition of rights and privileges she had under the MMMA as a registered primary
caregiver directly conflicted with the MMMA and, therefore, the relevant zoning code provisions
were void and unenforceable against her. She also asserted immunity under § 4 of the MMMA.
See MCL 333.26424(b). The trial court agreed with defendant and granted summary disposition
in her favor. Plaintiff now appeals.

                                  II. STANDARD OF REVIEW

       We review a trial court’s ruling regarding a motion for summary disposition de novo to
determine whether the movant was entitled to judgment as a matter of law. Maiden v Rozwood,
461 Mich 109, 118; 597 NW2d 817 (1999). The trial court granted defendant’s motion for
summary disposition under MCR 2.116(C)(8) and (10).

        A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint based upon
the pleadings alone. Id. at 119-120. “All well-pleaded factual allegations are accepted as true
and construed in a light most favorable to the nonmovant.” Id. at 119. “A motion under MCR
2.116(C)(8) may be granted only where the claims alleged are so clearly unenforceable as a
matter of law that no factual development could possibly justify recovery.” Id. (quotation marks
and citation omitted).

        A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the
factual support of a plaintiff’s claim. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d
28 (1999). In reviewing a motion for summary disposition under MCR 2.116(C)(10), the court
considers the pleadings, affidavits, and other documentary evidence filed in the action or
submitted by the parties in the light most favorable to the nonmoving party. Id. The motion is

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properly granted if “there is no genuine issue in respect to any material fact, and the moving
party is entitled to judgment as a matter of law.” Id. at 454-455.

       We review de novo questions of statutory interpretation. Nason v State Employees’
Retirement Sys, 290 Mich App 416, 424; 801 NW2d 889 (2010). “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, 297 Mich App 446, 452; 823 NW2d
864 (2012), aff’d 495 Mich 1 (2014).

                                        III. ANALYSIS

       Plaintiff argues that the MMMA does not preempt its zoning ordinance because the
ordinance does not conflict with the MMMA. Plaintiff also argues that defendant lacks
immunity under MCL 333.26424(b). We disagree.

        The precise issue presented in this case was recently decided by another panel of this
Court in Deruiter v Byron Twp, ___ Mich App ___; ___ NW2d ___ (2018) (Docket No.
338972). The defendant township in Deruiter adopted zoning ordinance regulations that limited
the locations in which a registered caregiver could engage in MMMA-compliant activities and
provided penalties for ordinance violations. Id. at ___; slip op at 1. Specifically, registered
caregivers could engage in the medical use of marijuana as a “home occupation,” but were
prohibited from such activities in commercial properties. Id. Much like plaintiff asserts in this
case, the defendant argued that its zoning ordinance was not preempted by the MMMA because
it merely restricted the location in which MMMA-compliant activities could occur without
prohibiting the activities allowed by the MMMA in their entirety. Id. at ___; slip op at 2. This
Court rejected the defendant township’s position, concluding that

       the MMMA permits medical use of marijuana, particularly the cultivation of
       marijuana by registered caregivers, at locations regardless of land use zoning
       designations as long as the activity occurs within the statutorily specified
       enclosed, locked facility.[3] No provision in the MMMA authorizes municipalities
       to restrict the location of MMMA-compliant medical use of marijuana by
       caregivers.     Neither does the MMMA authorize municipalities to adopt
       ordinances restricting MMMA-compliant conduct to home occupations in
       residential locations. So long as caregivers conduct their medical marijuana
       activities in compliance with the MMMA and cultivate medical marijuana in an
       “enclosed, locked facility” as defined by MCL 333.26423(d) and do not violate




3
 The MMMA grants immunity from arrest, prosecution, or penalty in any manner to registered
primary caregivers who “possess 2.5 ounces of usable marijuana for each qualifying patient and
cultivate 12 marijuana plants for each qualifying patient in an enclosed, locked facility.”
Deruiter, ___ Mich App at ___; slip op at 3, citing MCL 333.26424(b).


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       MCL 333.26427(b)’s location prohibitions,[4] such conduct complies with the
       MMMA and cannot be restricted or penalized. [Id. at ___; slip op at 5.]

Accordingly, the Court held that the defendant’s zoning ordinance was in direct conflict with,
and therefore preempted by, the MMMA because the “prohibition against noncommercial
medical use of marijuana by a caregiver within a commercial building effectively denied
plaintiff, as a registered caregiver, the rights and privileges that MCL 333.26424(b) permits in
conjunction with MCL 333.26423(d).” Id. at ___; slip op at 6.

         The holding in Deruiter is directly on point and dispositive of the issue presented in this
case. Just like the ordinance at issue in Deruiter, plaintiff’s zoning code attempts to prohibit
what the MMMA allows: cultivation and dispensing of medical marijuana as a “home
occupation” in a residentially zoned district, regardless of whether the caregiver’s activities
comply with the MMMA’s requirements. Also like the ordinance at issue in Deruiter, plaintiff’s
zoning code imposes fines and penalties for ordinance violations, contrary to the MMMA’s
immunity provisions. See MCL 333.26424. Consequently, as plaintiff’s counsel acknowledged
at oral argument, we are bound by the holding in Deruiter, see MCR 7.215(J)(1), and must
conclude that plaintiff’s zoning ordinance is preempted by the MMMA because it is in direct
conflict with the rights the MMMA grants to individuals engaging in MMMA-compliant
activities.

       Affirmed.



                                                             /s/ Mark J. Cavanagh
                                                             /s/ Jane E. Markey
                                                             /s/ Anica Letica




4
  MCL 333.26427(b) prohibits certain types of MMMA activities from taking place in specified
locations. For instance, the MMMA does not permit possession or medical use of marijuana—
which includes cultivation, see MCL 333.26423(h)—in a school bus, on school grounds, or in a
correctional facility. MCL 333.26427(b)(1) through (3). Notably, the location limitations set
forth in MCL 333.26427(b) do not restrict MMMA-compliant cultivation of marijuana by a
caregiver based upon the zoning of the real property on which the activities take place.


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