                          STATE OF MICHIGAN

                           COURT OF APPEALS



CHRISTIE DERUITER,                                                 FOR PUBLICATION
                                                                   July 17, 2018
              Plaintiff/Counter-Defendant-                         9:05 a.m.
              Appellee,

v                                                                  No. 338972
                                                                   Kent Circuit Court
TOWNSHIP OF BYRON,                                                 LC No. 16-004195-CZ

              Defendant/Counter-Plaintiff-
              Appellant,

and

MICHIGAN TOWNSHIPS ASSOCIATION and
MICHIGAN MUNICIPAL LEAGUE,

              Amici Curiae.


Before: HOEKSTRA, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

       Defendant 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.

        Defendant 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 permit.

       Plaintiff, a registered qualified medical marijuana patient and a registered primary
caregiver to qualifying patients grew medical marijuana in an enclosed, locked facility at a

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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.

      Defendant 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.

        The 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.

        “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) (Ter Beek I), aff’d 495 Mich 1; 846
NW2d 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 NW2d 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 NW2d 513
(2011).

        Defendant 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.

       “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 NW2d 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
NW2d 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 NW2d 28 (2006).

       The MZEA provides in relevant part:




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                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 promote public health, safety, and welfare. [MCL 125.3201(1).]

This Court explained in Ter Beek I, 297 Mich App at 453, that

       [a] city ordinance that purports to prohibit what a state statute permits is void. A
       state statute preempts regulation by an inferior government when the local
       regulation directly conflicts with the statute or when the statute completely
       occupies the regulatory field. A direct conflict exists between a local regulation
       and state statute when the local regulation prohibits what the statute permits.
       [Quotation marks and citations omitted.]

         The MMMA, an initiative law, governs medical marijuana use. “The words of an
initiative law are given their ordinary and customary meaning as would have been understood by
the voters.” McQueen, 293 Mich App at 653. This Court presumes that the electorate intended
the meaning plainly expressed in the statute. Id.

        Under MCL 333.26427(a), the “medical use of marijuana is allowed under state law to
the extent that it is carried out in accordance with the provisions of this act.” MCL 333.26423(f)
defined the term “medical use” as follows:

               [T]he acquisition, possession, cultivation, manufacture, extraction, use,
       internal possession, delivery, transfer, or transportation of marihuana, or
       paraphernalia relating to the administration of marihuana to treat or alleviate a
       registered qualifying patient’s debilitating medical condition or symptoms
       associated with the debilitating medical condition.

        The MMMA provides immunity from arrest, prosecution, and penalty in any manner, and
prohibits the denial of any right or privilege to qualifying medical marijuana patients and
registered primary caregivers. See MCL 333.26424(a) and (b); People v Hartwick, 498 Mich
192, 210-221; 870 NW2d 37 (2015). MCL 333.26424(b)(2)’s immunity grants caregivers the
right to possess 2.5 ounces of usable marijuana for each qualifying patient and cultivate and keep
12 marijuana plants for each qualifying patient in an enclosed, locked facility. MCL
333.26423(d) in relevant part defines an “enclosed, locked facility” as “a closet, room, or other
comparable, stationary, and fully enclosed area equipped with secured locks or other functioning
security devices that permit access only by a registered primary caregiver or registered
qualifying patient.”

       MCL 333.26424(b)(2) and MCL 333.26423(d) are in pari materia and must be read
together as one law because they are different provisions of a statute that relate to the same
subject matter. Ter Beek I, 297 Mich App at 462. Under MCL 333.26424(e), a rebuttable
presumption exists that primary caregivers and their qualified patients are engaged in the medical
use of marijuana in accordance with the MMMA if they possess registry identification cards and
possess an amount of medical marijuana that does not exceed the MMMA’s permissible limits.
Under MCL 333.26427(a), primary caregivers and their qualified patients are permitted the

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medical use of marijuana to the extent their use complies with the MMMA. The MMMA
prohibits engagement in the medical use of marijuana in specified locations listed in MCL
333.26427(b), such as on school grounds, in school buses, or forms of public transportation, as
well as in correctional facilities or public places.

        The MMMA also provides that “[a]ll other acts . . . inconsistent with this act do not apply
to the medical use of marihuana as provided for by this act.” MCL 333.26427(e). Therefore, if
another law is inconsistent with the MMMA such that it punishes MMMA-compliant medical
use of marijuana the MMMA controls, and the person is immune from punishment. People v
Koon, 494 Mich 1, 7, 832 NW2d 724 (2013).

        This Court has noted that if the MMMA’s “statutory language is unambiguous, . . . [n]o
further judicial construction is required or permitted because we must conclude that the electors
intended the meaning clearly expressed.” People v Bylsma, 315 Mich App 363, 377-378; 889
NW2d 729 (2016) (citation and quotation marks omitted). “Judicial construction of a statute is
only permitted when statutory language is ambiguous,” which occurs “only if it creates an
irreconcilable conflict with another provision or it is equally susceptible to more than one
meaning.” Noll v Ritzer (On Remand), 317 Mich App 506, 511; 895 NW2d 192 (2016). If the
language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent
and judicial construction is not permitted. Univ’l Underwriters Ins Group v Auto Club Ins Ass’n,
256 Mich App 541, 544; 666 NW2d 294 (2003).

        Consequently, a court “may not speculate regarding legislative intent beyond the words
expressed in a statute. Hence, nothing may be read into a statute that is not within the manifest
intent of the Legislature as derived from the act itself.” Detroit Pub Schs v Conn, 308 Mich App
234, 248; 863 NW2d 373 (2014) (quotation marks and citations omitted). Courts may not infer
legislative intent from the absence of action by the Legislature. McCahan v Brennan, 492 Mich
730, 749; 822 NW2d 747 (2012). A “legislature legislates by legislating, not by doing nothing,
not by keeping silent.” Id. (quotation marks and citation omitted). Rather, correct interpretation
of a statute like the MMMA requires (1) reading it as a whole, (2) reading the statute’s words
and phrases in the context of the entire legislative scheme, (3) considering both the plain
meaning of the critical words and phrases along with their placement and purpose within the
statutory scheme, and (4) interpreting the statutory provisions in harmony with the entire
statutory scheme. See Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009).

         MCL 333.26423(d) essentially provides that caregivers may operate medical marijuana
activities so long as they comply with the enclosed, locked facility requirements. MCL
333.26424(b)(2) and MCL 333.26423(d), when read together, grant registered caregivers the
rights and privileges to grow medical marijuana without fear of penalties imposed by local
governments. In Ter Beek II, 495 Mich at 20, the Michigan Supreme Court ruled that an
ordinance “directly conflicts with the MMMA by permitting what the MMMA expressly
prohibits—the imposition of a ‘penalty in any manner’ on a registered qualifying patient whose
medical use of marijuana falls within the scope of [MCL 333.26424(b)]’s immunity.” Further,
the Michigan Supreme Court clarified in Ter Beek II, 495 Mich at 21, that its holding in




                                                -4-
McQueen II1 should not be read to authorize a municipality to enjoin a registered qualifying
patient from engaging in medical use of marijuana that complied with the MMMA simply by
characterizing the conduct as a zoning violation.

       The Michigan Supreme Court stated that MCL 333.26427(a) “in no uncertain terms”
provides for medical use of marijuana if such use complies with the MMMA and that no other
law may interfere with the unambiguous rights conferred by the MMMA. Id. at 22. Although
the Michigan Supreme Court reaffirmed that the MMMA did not create a general right for
individuals to grow and distribute medical marijuana, nevertheless, it held that the MMMA
preempted the city’s ordinance because it penalized the plaintiff for engaging in MMMA-
compliant medical marijuana use. Id. at 24-25.

      Recently, in York Charter Twp v Miller, __ Mich App __, __; __NW2d __ (Docket No.
335344) (2018); slip op at 8, this Court explained:

                  Notably, the MMMA does not grant municipalities authority to adopt
         ordinances that restrict registered caregivers’ rights and privileges under the
         MMMA. By comparison, the Legislature recently enacted the medical marijuana
         facilities licensing act, MCL 333.27101 et seq., and specifically granted
         municipalities authority to adopt local ordinances including zoning regulations
         that restrict the location, number, and type of facilities within its boundaries. See
         MCL 333.27205.           Obviously, had the Legislature intended to authorize
         municipalities to adopt ordinances restricting registered medical marijuana
         caregivers through zoning ordinances, it could have done so in the MMMA.
         Despite amending the MMMA twice, the Legislature refrained from incorporating
         such provision in the MMMA.

         We believe that the plain language of the MMMA lacks any ambiguity that would
necessitate judicial construction to decipher its meaning. When the statute is read as a whole, no
irreconcilable conflict results that makes the statutory provisions susceptible to more than one
meaning. We conclude 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. 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 MCL 333.26427(b)’s location prohibitions,
such conduct complies with the MMMA and cannot be restricted or penalized.

      In this case, defendant’s zoning ordinance §§ 3.2.G and H improperly restricted the
medical use of marijuana by permitting MMMA-compliant activities only as a home occupation


1
    State v McQueen, 493 Mich 135; 828 NW2d 644 (2013).


                                                  -5-
within a dwelling or garage in residential zoned areas within the township. Medical marijuana
home occupations were expressly prohibited in a commercial setting regardless of whether a
patient’s or caregiver’s medical use of marijuana fully complied with the MMMA. Section
3.2.H.3 also required caregivers to obtain a permit by filing an application and paying a fee, and
such permits were revocable for noncompliance with the ordinance regardless of whether a
patient’s or caregiver’s medical use of marijuana fully complied with the MMMA. Sections
3.2.G and H plainly prohibited caregivers from conducting noncommercial medical marijuana
activities at nonresidential locations. Defendant’s zoning ordinance § 14.11 imposed serious
consequences including fines and penalties for noncompliance.

        We conclude that defendant’s home occupation ordinance, §§ 3.2.G and H, plainly
purported to prohibit the exercise of rights and privileges that the MMMA otherwise permits.
Defendant’s 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).
Accordingly, under Ter Beek I, 297 Mich App at 453, defendant’s home occupation ordinance
directly conflicted with the MMMA in that regard.

       Further, enforcement of defendant’s home occupation ordinance would result in the
imposition of sanctions against plaintiff that the MMMA does not permit. See MCL
333.26424(b); see also Ter Beek I, 297 Mich App at 455-456. As the Michigan Supreme Court
has explained, “local zoning regulation enacted pursuant to the MZEA does not save it from
preemption.” Ter Beek II, 495 Mich 21-22. Therefore, defendant’s zoning ordinance’s
prohibition of registered caregivers’ MMMA-compliant medical use of marijuana in a
commercial building was void and preempted by the MMMA. Ter Beek I, 297 Mich App at 457.

         We believe that the trial court correctly read the MMMA as a whole, analyzed its plain
language, and interpreted the MMMA in a reasonable and harmonious manner. The trial court
correctly ruled that defendant’s home occupation ordinance prohibited what the MMMA
permitted, MMMA-compliant conduct, merely because it occurred in a commercially zoned
location. The trial court also correctly decided that defendant’s zoning ordinance permitted what
the MMMA prohibited by targeting and restricting MMMA-compliant use by adding a layer of
restrictions and regulations that interfered with lawful use by imposing a permit requirement that
defendant could revoke without regard to plaintiff’s MMMA-compliant conduct. Further, the
trial court correctly ruled that defendant’s zoning ordinance also permitted what the MMMA
prohibited by allowing defendant to impose penalties regardless of plaintiff’s MMMA-compliant
conduct. Accordingly, the trial court did not err by ruling that a direct conflict existed between
defendant’s ordinance and the MMMA resulting in the MMMA’s preemption of plaintiff’s home
occupation ordinance.

       Defendant’s argument that the MMMA does not preempt its ordinance because the
MMMA does not occupy the field of zoning fails; the trial court never based its ruling upon field
preemption of zoning nor did the trial court need to consider the field preemption doctrine.
Rather, the trial court correctly determined that doctrine inapplicable to this case because the
ordinance directly conflicted with the MMMA and was preempted for that reason alone.
Moreover, as this Court explained in Miller, __ Mich App at __ ; slip op at 8, had the Legislature
intended to authorize municipalities to adopt ordinances restricting the location where registered

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medical marijuana caregivers may exercise their rights through zoning ordinances, it could have
done so in the MMMA but has refrained from doing so.

        Therefore, we hold that the trial court properly analyzed the interplay between
defendant’s zoning ordinance and the MMMA and correctly held as a matter of law that the
MMMA preempted defendant’s home occupation zoning ordinance because the ordinance
directly conflicted with the MMMA by prohibiting what the MMMA permitted, and it
improperly imposed regulations and penalties upon persons who engage in MMMA-compliant
medical use of marijuana.

       We affirm.

                                                          /s/ Joel P. Hoekstra
                                                          /s/ William B. Murphy
                                                          /s/ Jane E. Markey




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