Frustrated Hills Officials Leave Medical Marijuana Ordinance on the Table
Council members ask city attorney Steve Joppich to take another run at developing a local policy.
Farmington Hills officials have been trying for weeks to craft an ordinance that would effectively ban medical marijuana-related businesses while allowing local residents who have state approval to grow their supplies.
On Monday night, council members pushed their decision out another two weeks, asking city attorney Steve Joppich to craft a local ordinance based on one already approved by the city of Grand Rapids. They took no action on a previously tabled agenda item.
At a study session before their regular meeting, Joppich reviewed two Grand Rapids ordinances, one that establishes zoning regulations and another that requires caregivers—who may grow plants for up to five patients—to obtain a license. Joppich said the city of Farmington Hills currently requires licenses only for home-based child care providers.
Mayor Jerry Ellis said officials had previously agreed they had no problem with medical marijuana use by cardholders or with caregivers growing for their five patients. "The problem was what's beyond that," he said. "Can we do an ordinance ... saying 'Thou shalt not do anything except' and put those two exceptions in?"
Joppich said the law is undeveloped; the Michigan Legislature is considering amendments, and the state Court of Appeals is issuing rulings. "You are taking a step to the point where you are permitting it," he said. "There are federal laws that say what you're doing is illegal."
Last week, the Court of Appeals upheld the conviction of a man who had been growing marijuana in a dog kennel and an unlocked closet because he had not followed state law with regard to securing his plants, Joppich said.
"In the course of doing that, the court found the Medical Marihuana Act did not provide medical marijuana patients with the right to grow or use marijuana. It supplied the patients with an affirmative defense," he said. "That's a clarification we didn't have before."
The case could be appealed to the state Supreme Court, he added, but that is an indication the city would be allowing a violation of state laws against marijuana use, as well as federal laws.
Council member Randy Bruce asked, "What if we do nothing?"
"If we do nothing, we open it up to everything," Ellis said.
Council member Ken Massey worried that the ordinance would put the city in the path of a lawsuit. "If you affirmatively say 'go ahead and do it,' when you prosecute someone, they can say, 'The city said it was okay to do,' " he said, adding he was more comfortable with the original proposed ordinance, which would have prohibited any land uses that violated federal, state and other laws.
However, council member Barry Brickner pointed out the first paragraph of the Grand Rapids zoning ordinance includes a statement that the ordinance does not protect anyone from state or federal prosecution or property seizure, but that it allows anyone in compliance with the state law to grow marijuana as a home occupation.
"I'd like to know who you think's going to enforce this," said council member Nancy Bates, who said she's furious with the state and federal government for putting cities in the position of having to deal with the issue. "Do you think we've got a police force that's going to enforce this?"
"Whatever we do, we're not going to be out there enforcing," Ellis said, adding that when police officers are investigating complaints, they will be able to check whether people are complying with the law. "Nobody's going to be knocking down doors."
Brickner said he wanted to see a local version of the Grand Rapids zoning ordinance developed, adding the disclaimer that the ordinance would be part of an affirmative defense "rather than we permit it."
"That would be basically mirroring the current state law," Joppich said. He said he would create a rough draft for review by the City Council, and then the ordinance would go back to the Planning Commission, which approved the original version.
A moratorium on medical marijuana-related businesses expires in March; officials tabled ordinance approval to their Feb. 28 meeting. Joppich recommended extending the moratorium six months, to allow for development and review of the new language.
At the council's regular meeting, Ellis explained the council would leave the ordinance on the table. "Stay tuned on the issue of medical marijuana use in the city of Farmington Hills."