Pubdate: Thu, 02 Aug 2012
Source: Oakland Press, The (MI)
Copyright: 2012 The Oakland Press
Contact:  http://www.theoaklandpress.com/
Details: http://www.mapinc.org/media/2114
Author: Dave Phillips

MICHIGAN COURT OF APPEALS VOIDS CITY OF WYOMING'S MEDICAL MARIJUANA
ZONING ORDINANCE

The Michigan Court of Appeals has ruled the city of Wyoming's
ordinance regulating medical marijuana "is void and
unenforceable."

In an opinion issued Wednesday morning, the court ruled that John Ter
Beek was correct in seeking to void the city's zoning ordinance on
state preemption grounds.

On Nov. 1, 2010, Wyoming amended its city code to add a zoning
ordinance prohibiting "uses that are contrary to federal law, state
law or local ordinance," as well as "uses not expressly permitted
under this article."

Some Oakland County municipalities have issued zoning ordinances
regarding medical marijuana use. Bloomfield Hills and Birmingham have
been sued by the American Civil Liberties Union, as has Wyoming.

Ter Beek, a medical marijuana patient who lives in Wyoming, grows and
uses medical marijuana in his home, according to the opinion. After
the zoning ordinance took effect, he filed a complaint seeking
declaratory relief.

He claimed the ordinance outlawed medical marijuana use, since it's
illegal on the federal level. He also said the ordinance "is invalid
because the ordinance prohibits and makes punishable the use,
manufacture, or cultivation of medical marijuana in direct conflict
with the (Michigan Medical Marihuana Act)," according to the opinion.

The city argued that the Controlled Substances Act preempts the
Michigan Medical Marijuana Act, and the trial court agreed.

Ter Beek reiterated his position on appeal and asked the court to
"enter a declaratory judgment finding defendant's ordinance void and
unenforceable to the extent that it prohibits the medical use of
marijuana in accordance with the MMMA," the opinion states.

"A city ordinance that purports to prohibit what a state statute
permits is void,," the opinion reads.

The city acknowledged that the ordinance "is to regulate the growth,
cultivation and distribution of medical marijuana in the City of
Wyoming by reference to the federal prohibitions regarding
manufacturing and distribution of marijuana," according to the
opinion. The ordinance could mean that a medical marijuana user would
be subject to penalty, despite the state law's statement that
qualifying patients would be immune to "penalty in any manner," the
opinion states.

"We conclude that it is clear that registered, qualified medical
marijuana users are not to be subject to any penalty, whether civil or
criminal, if their medical use of marijuana conforms to the
limitations set forth in the MMMA," the opinion reads.

"Defendant's ordinance does not attempt to regulate lawful conduct,
but rather, attempts to completely ban the medical use of marijuana on
the basis of the authority of the (Controlled Substances Act), a
federal criminal statute. Thus, any sanction imposed pursuant to the
ordinance rests on the premise that the medical use of marijuana
permitted by the MMMA is criminal activity, a proposition that is in
direct conflict with the MMMA."
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