CHARTER TOWNSHIP OF YORK, Plaintiff/Counter-Defendant-Appellant, v. DONALD MILLER, KATHERINE NULL, and DAVID MILLER, Defendants/Counter-Plaintiffs-Appellees.
No. 335344
STATE OF MICHIGAN COURT OF APPEALS
January 18, 2018
FOR PUBLICATION; Washtenaw Circuit Court; LC No. 15-000847-CZ
PER CURIAM.
Plaintiff appeals as of right from the trial court judgment that declared that plaintiff could not enforce its zoning ordinance’s prohibition against outdoor growing of medical marijuana because the ordinance conflicted with the provisions of the Michigan Medical Marihuana Act,
Defendants, David Miller and Donald Miller, are brothers who resided together at Donald’s home located in Milan, Michigan, in York Township. Both were qualified medical marijuana patients. Defendant, Katherine Null, formerly in a long term relationship with David, also was a qualified medical marijuana patient, and she served as David’s registered medical marijuana primary caregiver. Null rented a bedroom from Donald, but she did not reside with the Millers. During 2014, Null directed David to construct a medical marijuana structure in Donald’s backyard for containing the cultivation of medical marijuana for patients connected to Null through registration under the MMMA. Starting in July 2015, Null rented space on Donald’s property for that purpose. Defendants failed to obtain a construction permit for the medical marijuana outdoor growing facility, never got permits before installing an electrical and watering system, and never obtained a certificate of occupancy.
Under the Michigan Zoning Enabling Act,
An occupation or profession customarily conducted entirely within a dwelling by the persons residing within the dwelling and not more than one person who does not reside within the dwelling, and where such use is clearly incidental to the principal use of the dwelling as a residence.
Medical marijuana caregivers were required to comply with Zoning Ordinance §§ 40.204(A)(13)(e) and (f) for marijuana use and cultivation:
(e) All medical marihuana shall be contained within the main building in an enclosed, locked facility inaccessible on all sides and equipped with locks or other security devices that permit access only by the registered primary caregiver or qualifying patient, as reviewed and approved by the Building Official;
(f) All necessary building, electrical, plumbing, and mechanical permits shall be obtained for any portion of the residential structure in which electrical wiring, lighting and/or watering devices that support the cultivation, growing, or harvesting of marihuana are located[.]
Plaintiff learned that defendants built their medical marijuana facility outdoors that failed to comply with zoning and construction regulations. Instead of enforcing its zoning ordinance regulations, plaintiff filed a declaratory judgment action seeking the trial court’s determination of the validity of its zoning and construction regulations and its right to enforce them as they applied to the cultivation and use of medical marijuana in zoned residential locations and subdivisions.
Before filing their respective motions for summary disposition, the parties stipulated to the essential facts. They agreed that defendants’ medical marijuana use failed to comply with plaintiff’s home occupation zoning ordinance because Null did not reside at Donald’s property and defendants grew medical marijuana outside and not entirely within Donald’s house. They agreed that, except for defendants’ zoning and construction code violations, defendants’ medical marijuana use and their outdoor growing facility complied with the MMMA. The parties stipulated that defendants’ violations of plaintiff’s zoning ordinances and construction code regulations constituted nuisances per se subject to penalties including injunctive relief and abatement.
Plaintiff argued in its motion for summary disposition that under the MZEA it had broad authority to prohibit outdoor medical marijuana growing. Defendants countered that the MMMA preempted plaintiff’s home occupation zoning ordinance because it directly conflicted with the MMMA. The trial court ruled that direct conflicts existed between the MMMA and plaintiff’s ordinance. The trial court found that the Legislature amended the MMMA during 2012 specifically to permit outdoor cultivation and held that plaintiff’s ordinance conflicted by allowing medical marijuana growing only as an indoor home occupation. Further, the trial court held that plaintiff’s ordinance also conflicted because the MMMA did not require Null to live on the premises where the marijuana was grown. The trial court ruled that plaintiff could not exclude outdoor cultivation because the MMMA permitted doing so. The trial court ruled further that defendants’ structure was subject to construction regulations and zoning so long as the zoning did not forbid outdoor cultivation of medical marijuana. The trial court ordered
Plaintiff first argues that its authority under the MZEA to adopt ordinances permitted it to regulate medical marijuana and restrict registered caregivers’ marijuana growing to indoors in areas zoned residential. We disagree.
“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 (Ter Beek I), 297 Mich App 446, 452; 823 NW2d 864 (2012), aff’d Ter Beek v City of Wyoming, 495 Mich 1; 846 NW2d 531 (2014) (Ter Beek II). We also review “de novo a decision to grant or deny a declaratory judgment; however, the trial court’s factual findings will not be overturned unless they are clearly erroneous.” Id. Findings of fact are clearly erroneous where no evidentiary support exists or if this Court is left with a definite and firm conviction that a mistake has been made. Trahey v City of Inkster, 311 Mich App 582, 593; 876 NW2d 582 (2015).
“Under
The MZEA provides in relevant part that
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) .]
The dispositive issues in this case were whether the MMMA permits outdoor medical marijuana growing, and if so, whether it preempted plaintiff’s zoning regulation prohibiting outdoor growing in residential areas. A panel of 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. [Citations and quotation marks omitted.]
In this case, Zoning Ordinance § 40.204 restricted home occupations and home-based businesses. Within the context of a home occupation, plaintiff specifically regulated registered
Zoning Ordinance § 3.13 permitted plaintiff to penalize property owners for nonconforming uses. Plaintiff could declare such uses a nuisance and require any structure to be vacated, torn down, removed from the property, or abated with the cost of abatement attaching as a lien on the property. Defendants’ violation of plaintiff’s home occupation zoning ordinance, therefore, held serious penalties.
The MMMA governs medical marijuana use. Under
the 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 does not define the term “cultivation.”
The MMMA provides immunity from arrest, prosecution, and penalties in any manner, and prohibits the denial of any rights or privileges to qualifying medical marijuana patients and registered primary caregivers. See
Before 2012,
“Enclosed, locked facility” means 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. Marihuana plants grown outdoors are considered to be in an enclosed, locked facility if they are not visible to the unaided eye from an adjacent property when viewed by an individual at ground level or from a permanent structure and are grown within a stationary structure that is enclosed on all sides, except for the base, by chain-link fencing, wooden slats, or a similar material that prevents access by the general public and that is anchored, attached, or affixed to the ground; located on land that is owned, leased, or rented by either the registered qualifying patient or a person designated through the departmental registration process as the primary caregiver for the registered qualifying patient or patients for whom the marihuana plants are grown; and equipped with functioning locks or other security devices that restrict access to only the registered qualifying patient or the registered primary caregiver who owns, leases, or rents the property on which the structure is located.
In this case, plaintiff’s home occupation ordinance § 40.204(13), subparts (e) and (f) plainly purport to prohibit the outdoor growing of medical marijuana that the MMMA otherwise permits. Plaintiff’s prohibition effectively denied registered caregivers the right and privilege that
Plaintiff next essentially contends that the trial court’s interpretation of
In People v Bylsma, 315 Mich App 363, 377-378; 889 NW2d 729 (2016), this Court recognized that the MMMA was a voter-initiated statute and we applied the rule of statutory construction that the words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters. We instructed 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.” Id. 378. “Judicial construction of a statute is only permitted when statutory language is ambiguous,” and ambiguity exists “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).
Similarly, when courts interpret statutes created by the Legislature, they must first look to the specific statutory language to determine the Legislative intent. If the language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Universal Underwriters Ins Group v Auto Club Ins Ass’n, 256 Mich App 541, 544; 666 NW2d 294 (2003). We explained in Detroit Pub Schs v Connecticut, 308 Mich App 234, 247-248; 863 NW2d 373 (2014), the framework for statutory construction:
When interpreting a statute, our goal is to give effect to the intent of the Legislature. The language of the statute itself is the primary indication of the Legislature’s intent. If the language of the statute is unambiguous, we must enforce the statute as written. This Court reads the provisions of statutes reasonably and in context, and reads subsections of cohesive statutory provisions together.
* * *
[N]othing may be read into a statute that is not within the intent of the Legislature apparent from the language of the statute itself. Courts 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. [Citations and quotation marks omitted.]
In relation to defining the term “enclosed, locked facility,”
The trial court read the plain language of
We also believe that the trial court correctly held that defendants’ enclosed, locked facility must comply with
Plaintiff next argues that the MMMA’s “medical use” and “enclosed, locked facility” definitions’ silence regarding the specific manner and location for cultivating medical marijuana permitted plaintiff to prohibit cultivation by zoning ordinance regulation. We disagree.
This Court explained in Detroit Pub Schs, 308 Mich App at 247-248, that statutory construction requires giving effect to the intent of the Legislature based upon the language of the statute itself. Courts must enforce statutes as written by reading the subsections of cohesive statutory provisions together without reading into the statute anything that is not within the manifest intent of the Legislature. Further, as explained in Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009), correct interpretation of a statutory scheme like the MMMA requires (1) reading the statute 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. Courts should not intuit legislative intent from the absence of action by the Legislature, but interpret statutes based upon what the Legislature actually enacted. McCahan v Brennan, 492 Mich 730, 749; 822 NW2d 747 (2012). As the Michigan Supreme Court has explained, the “legislature legislates by legislating, not by doing nothing, not by keeping silent.” Id.
In this case, we read and interpret the MMMA as a whole. We conclude as the trial court did that the MMMA permits and thereby authorizes registered caregivers to grow medical marijuana for their patients both indoors and outdoors without fear of imposition of penalties by
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,
Lastly, plaintiff argues a number of angles for reversing the trial court’s decision that the MMMA preempted its home occupation zoning ordinance. All of them lack merit.
As explained above, the trial court read the MMMA as a whole, analyzed its plain language, and interpreted
Plaintiff asserts that the trial court erred because the MMMA does not preempt its ordinance by occupying the field of zoning and construction code regulations. The trial court, however, never held that the MMMA preempted zoning and construction code regulations. In fact, the trial court specifically held that construction code regulations and plaintiff’s building permit regulations applied to defendants’ outdoor structure. Consequently, it ordered defendants to obtain all requisite permits for their outdoor medical marijuana enclosed, locked facility. Accordingly, plaintiff’s argument lacks merit.
Plaintiff also argues that its home occupation ordinance did not directly conflict with the MMMA. As explained above, plaintiff’s ordinance directly conflicted with the MMMA because
Plaintiff argues further that its ordinance was not preempted by the MMMA because plaintiff merely adopted additional requirements for medical marijuana cultivation that were not unreasonable and only served to prevent purported nuisances in residential neighborhoods. Plaintiff again relies on the MZEA for its authority to regulate medical marijuana cultivation and prohibit outdoor growing in zoned residential areas. As we explained above, the MZEA does not save plaintiff’s ordinance from preemption. See Ter Beek II, 495 Mich 21-22.
Plaintiff contends that, read alone,
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Jane M. Beckering