344 Mich. App. 689
Mich. Ct. App.2022Background
- In 2018 Michigan voters enacted the Michigan Regulation and Taxation of Marihuana Act (MRTMA), allowing municipalities to prohibit, limit, or regulate marijuana establishments and to require local licensing.
- Berkley adopted an ordinance limiting retail licenses to three and created a point-based application review with 16 criteria (e.g., community revitalization, sustainability, odor control, parking, proximity to schools).
- The City manager reviewed and scored applications (aided by staff) and recommended approvals to the planning commission and City council.
- Several applicants whose applications were denied sued, claiming Berkley’s scoring criteria conflicted with the MRTMA and that the scoring process violated the Open Meetings Act (OMA); they also raised due process and other claims.
- The trial court granted defendants summary disposition on the MRTMA claims but found an OMA violation (concluding a de facto scoring committee met outside public view); it denied plaintiffs’ attorney-fee request and denied an intervenor (Attitude).
- On appeal, this Court affirmed in part, reversed in part, and remanded: it upheld the ordinance under the MRTMA, reversed the OMA holding, affirmed denial of intervention, and remanded the undecided claims to the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Berkley’s scoring criteria violate MCL 333.27959(4) by using community-focused factors unrelated to compliance with the MRTMA | Criteria like sustainability, aesthetics, and green infrastructure are unrelated to whether an applicant is "best suited to operate in compliance with this act" | MRTMA’s phrase "within the municipality" allows municipalities to adopt local criteria reflecting community concerns so long as they conform to the Act | Court rejected plaintiffs’ narrow reading and held Berkley’s criteria are permissible under MCL 333.27959(4) because local suitability may include municipal concerns |
| Whether Berkley exceeded its authority under MCL 333.27956 by adopting criteria that conflict with or are "unreasonably impracticable" under the MRTMA | The City imposed conditions and considerations that effectively regulate beyond permitted time/place/manner limits or impose improper qualifications | The ordinance’s criteria relate to time/place/manner and local regulation and do not conflict with or unreasonably burden MRTMA or departmental rules | Court held the challenged criteria fit within the MRTMA’s allowance for municipal time/place/manner regulation and are not shown to be unreasonably impracticable or conflicting |
| Whether the City’s scoring process violated the Open Meetings Act by operating as an undisclosed "Scoring Committee" | The manager’s scoring, aided by staff, effectively created a public-body committee that met and scored applications outside public view (citing Booth) | The ordinance authorized the City manager to review and score applications; an individual (and his staff) is not a "public body" under the OMA, so no public-meeting requirement applied | Court reversed the trial court: no OMA violation because scoring was done by the manager (not a delegated public body), distinguishing Booth and relying on Herald Co. |
| Whether the trial court should decide plaintiffs’ other claims and whether Attitude should have been allowed to intervene | Plaintiffs urged resolution of due-process, mandamus, and related claims now; Attitude argued it should intervene to protect its preliminary license and proprietary info | Defendants noted the trial court did not rule on those claims and intervention was not necessary because city defendants could protect Attitude’s interests | Court declined to decide unresolved claims (remanded them for proceedings); affirmed denial of Attitude’s intervention as within trial court discretion |
Key Cases Cited
- Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211 (1993) (invalidated attempts by a public board to delegate decisionmaking to subgroups to evade the OMA)
- Herald Co v City of Bay City, 463 Mich 111 (2000) (distinguished Booth; an individual official is not a "public body" under the OMA)
- Sherman v City of St Joseph, 332 Mich App 626 (2020) (standard: de novo review of summary disposition)
- D'Agostini Land Co, LLC v Dep't of Treasury, 322 Mich App 545 (2018) (statutory interpretation principles: give effect to plain meaning and avoid surplusage)