Pubdate: Thu, 02 Aug 2012
Source: Livingston County Daily Press & Argus (MI)
Copyright: 2012 Livingston Daily Press & Argus
Contact: http://drugsense.org/url/Kk1qVKJf
Website: http://www.livingstondaily.com
Details: http://www.mapinc.org/media/4265
Author: Amanda Whitesell

STATE APPELLATE COURT: MUNICIPALITIES CAN'T BAN CULTIVATION, USE OF
MEDICAL MARIJUANA

Despite efforts to clarify what some call a vague law, Livingston
County municipalities are being forced back to the drawing board --
along with their growing number of ordinances pertaining to medical
marijuana.

Michigan cities and townships cannot bar the cultivation and use of
medical marijuana, according to a state appellate court's opinion
released Wednesday.

The unanimous three-judge panel said cities and townships cannot
enforce ordinances that penalize residents for the use of medical
marijuana while in conformity with the 2008 Michigan Medical Marijuana
Act.

Local governments also cannot use the federal prohibition on marijuana
as an excuse to ban it, the opinion reads.

"Obviously, a lot of communities are going to have to go back and
investigate ordinances we've passed," said Rebecca Foster, Pinckney
Village Council president.

Wednesday's decision dealt with a zoning ordinance in the city of
Wyoming, a few miles southwest of Grand Rapids.

In 2010, Wyoming amended its city code to enact a zoning ordinance
making punishable the use, manufacture or cultivation of medical
marijuana. That violates the Michigan Medical Marihuana Act, the
court's opinion reads. The law was passed in response to a
citizen-driven statewide ballot issue, where 60 percent of voters
approved the use of medical marijuana.

Since then, the law's interpretation has been uneven as communities
attempted to legislate so-called dispensaries, where marijuana is
stored and distributed to multiple holders of marijuana cards.
Individuals as well have been prosecuted for growing or possessing
marijuana even though they have a state-issued medical marijuana card.

The Wyoming ordinance came into question when a city resident filed a
complaint seeking declaratory relief from the law, though he hadn't
been charged with violating the ordinance or subjected to any
penalties or fines.

The ruling comes as a significant victory to advocates of medical
marijuana, who claim local governments have "brilliantly" tried to
thwart the law with "clever" zoning ordinances, according to Denise
Pollicella, an attorney who represents medical marijuana patients and
care clubs throughout southeast Michigan. It's another step toward
clarifying gray issues in the state law, she said.

"It clarifies to municipalities that they can't take their own
personal opinions on their board and reflect them in their
ordinances," Pollicella said. "State law is state law."

Additionally, the court ruled that because "it's not physically
impossible" to comply with the Michigan Medical Marihuana Act and the
federal Controlled Substances Act simultaneously, the state law is not
pre-empted by the federal law on the basis of impossibility.

Kaitlin Fink, substance abuse and prevention coordinator for the
Livingston County Community Alliance, said awareness of medical
marijuana needs to continue as a public priority, in addition to
providing support to those in recovery.

"We just need to get on the same page," she said of local, state and
federal governments' medical marijuana laws.

Marijuana is considered a "public nuisance" under the village of
Fowlerville's grass and weeds ordinance, disallowing residents from
growing the substance within 160 feet of the lot or its depth,
whichever is lesser.

Village President Wayne Copeland said changes needed -- if any -- to
ordinances pertaining to medical marijuana will need to be run by
Village Attorney David Stoker and could take up to 90 days for processing.

The most recent effort to mandate medical marijuana rules on the local
level was the Brighton Township Board of Trustees' acceptance of
language for a zoning-ordinance amendment that prohibits uses that
violate federal, state or local laws in any zoning district. However,
Township Supervisor Tom Murphy said an applicant could file an appeal
and go to the Zoning Board of Appeals.
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