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Four years later: Medical marijuana up in air

by Susan Bromley

October 24, 2012

Ortonville- In the 2008 presidential election, Michigan voters approved by 63 percent the Michigan Medical Marihuana Act. The law went into effect Dec. 4, 2008.

Four years later, as the next presidential election quickly approaches with a ballot full of new proposed laws, medical marijuana is still up in the air, hanging out to dry. Will it go up in smoke? Do the laws passed by voters matter?

The law has caused general confusion and numerous municipalities, including the village and Brandon and Groveland townships, have passed moratoriums to avoid conflicts. On Oct. 15, Groveland Township officials extended their moratorium.

In the village, however, the moratorium has expired and at the council's Oct. 22 meeting, Village Manager John Lyons informed councilmembers that Village Attorney Michael Gildner has suggested that rather than continue to extend moratoriums, the village council draft an ordinance to address the issue.

"It's been four years and no one has done anything," said Lyons. "Moratoriums are just a way to put things off… The legislature needs to do something with (the medical marijuana act), a referendum tells you nothing except the people want something that's against federal law."

According to the state regulation, patients may possess up to two and one-half (2.5) ounces of usable marijuana and 12 marijuana plants kept in an enclosed, locked facility. The 12 plants may be kept by the patient only if he or she has not specified a primary caregiver to cultivate the marijuana for him or her.

The moratoriums have been passed to primarily prevent applications to establish medical marijuana dispensaries in the area.

The Brandon Township moratorium, which expires in March 2013, states the township will not approve requests for medical marijuana land uses, businesses, and/or facilities. According to the resolution, the moratorium is not intended to prohibit a qualifying patient's personal use of medical marijuana in his/her private residence in accordance with the Michigan Medical Marihuana Act.

Gildner said the village has several options in dealing with medical marijuana besides the moratorium. One approach would be to do nothing and address each situation as it may arise. Another would be to follow Livonia's lead and state in the zoning ordinance that anything made unlawful by state or federal law is an impermissible use.

"The idea behind that approach is that marijuana is unlawful federally," he said. "You can prohibit it by saying,' If it's unlawful by federal law, it's unlawful here He notes, however, that Livonia has been sued by taking that approach.

Gildner said another possible approach, followed by Grand Rapids, is to allow medical marijuana, but only in residential areas and by permit.

And then there is the approach Gildner recommends to the village—that they regulate it under their zoning ordinance, requiring any dispensary applicants to provide a site plan and explain in detail the nature of their operations. He uses as an example that pharmacies dispense medications, but they are not allowed to pop up everywhere. Medical marijuana dispensaries could be treated the same—with requirements to be a specified distance from churches, schools, daycares.

"It's a middle of the road approach," Gildner said. "The key to that approach is we are saying, 'to the extent it is lawful under state law' and that is the big question right now. I don't believe dispensaries are allowed under state law and think the case in time will support that point of view… I don't see how we can be sued, because we're treating it as any other use… This allows the municipality to determine if what (applicants) are proposing is consistent with state law. Too often there is no vetting or approval and you're left to guess what is going on behind closed doors."

Gildner noted the village council may choose any of the approaches and are clearly not bound to his recommendation. He adds that in none of the municipalities where his recommendation was accepted has there been requests to open a dispensary.

"I don't think anyone is willing to stick their neck out and take that risk right now," he said. "Some communities are afraid they are opening the flood gate, but in my experience, you're not. One of my communities was approached informally and when the applicant gave an overview of their business plan, they were told it was not lawful."

Gildner's recommendation does not prohibit the use of medical marijuana and applies only to establishment of dispensaries. He doesn't take a position on whether the state law is good or bad, only that it was a poorly worded law.

"We're talking about commercial operations, where it's not just you and your five patients," Gildner said. "We're talking to those people who think they can serve 100 people and have a clearinghouse of marijuana."

His option, he said, is designed to prompt discussion.

Lyons agrees that discussion is what is needed and he plans to take the ordinance recommendation to the planning commission for review.