VBT Planners recommend marijuana ordinance amendments

At its regular meeting Oct. 14, via Zoom, the Van Buren Township Planning Commission held a public hearing on zoning ordinance amendments and unanimously recommended to the township board rules that would keep medical marijuana growing in residential areas.
Dan Power, director of planning and economic development, explained VBT had opted out of certain marijuana land uses under 2016 and 2018 state laws.
But under a more long-standing state law, the Michigan Medical Marijuana Act (MMMA), medical marijuana caregiver activities as described in that law are permitted in the State of Michigan, including Van Buren Township.
A recent Michigan State Supreme Court decision, DeRuiter v. Township of Byron (2020), holds that the MMMA does not nullify a municipality’s inherent authority to regulate land use under the Michigan Zoning Enabling Act.
Based on this ruling, municipalies in Michigan may limit the land use aspect of medical marijuana caregiving activities. Recognizing this the township seeks to provide a framework for medical marijuana caregiving land use. The proposed zoning ordinance text amendments include the following components:
• It will be permitted as a home occupation and an accessory use of dwelling units;
• It will not be permitted in non-residential properties;
• One caregiver may operate per dwelling;
• Medical marijuana use by registered caregivers may occupy up to 20% of the floor area of a dwelling, not to exceed 300 square feet;
• Medical marijuana facility land uses authorized in the State of Michigan by PA 281 of 2016 remain prohibited; and
• Recreational marijuana land uses authorized in the State of Michigan by Michigan Initiated Law 1 of 2018 remain prohibited.
Township attorney David Greco was present via Zoom to explain the legal aspects of the amendments.
Greco said this is to limit medical marijuana caregiver activities and to regulate it the best they can.
In 2008 there was a voter referendum to pass the Medical Marijuana Act, which decriminalized the use of medical marijuana. There was a medical marijuana card and a caregiver and you could grow some for yourself and up to five patients.
He said you could have five patients and yourself and grow up to 12 plants per patient. That means you could grow up to 72 plants, “Which is a lot of plants.”
Greco said for the past 12 years, people in Michigan have been trying to figure out how to commercialize marijuana.
The State Legislature passed two commercial licensing acts. The township has opted out to have commercial facilities in the township.
He said the township can’t regulate everyone’s right for medical marijuana and this had made adjustments to policing necessary.
“You do get complaints from time to time on the smells, but not too much. But we get them,” Greco said. “It’s very hard to regulate what’s going on with medical marijuana.”
He said townships have tried to regulate this, but have lost cases.
“There’s been nothing we can do,” he said.
But now in the Supreme Court’s DeRuiter v. Township of Byron case, that changed.
He said Byron Township passed a local zoning ordinance that said if you are a medical marijuana caregiver, it is limited to a home occupation and cannot be done in a commercial building.
Greco said an issue has been that people buy a residential home and not live in it, but just grow marijuana there.
Byron Township lost in trial court and lost again in the court of appeals, he said.
“This past summer the Supreme Court found in favor of Byron Township,” he said, noting that specific regulations could be made by municipalities. This issue was coming up with many municipalities.
“We took Byron Township’s ordinance, upheld by the Supreme Court, and tailored it for Van Buren Township.” It limits medical marijuana caregivers to residences and prohibits it from commercial buildings. He said the regulations are for the health, safety, and welfare of the township.
He said the police will be able to enforce reasonable standards, such as light, power, and smells.
“Seventy-two plants is a lot of plants and looks like a heck of a lot more marijuana than five people need,” Greco said.
As part of the amendments, in Section 7.125, they are putting the opting out part into the ordinance.
Commission vice-chairman Donald Boynton asked if a person could construct a pole barn accessory building to grow on a residential lot.
Power said it is prohibited in all other areas than residential and it needs to be in an enclosed, locked facility. Power said he doesn’t think the pole barn question would arise.
Commissioner Medina Atchinson said she hopes to ensure it could not be commercial at a home with a lot of traffic.
Greco said a part of the ordinance prohibits marijuana distribution at the primary residence of the caregiver.
But, as far as policing marijuana, it’s going to be very hard, Greco said. “A couple of patients come over and smoke a joint together?” he said. “It’s legal.”
Commissioner Atchinson said if the police are asked to regulate caregivers it would be additional work for public safety.
“The way we wrote it now, no,” replied Greco, explaining some municipalities have licenses or permits, which require a review and the building department, and fire and trades, and police. “This is so hard to police. We didn’t go that route.”
He said police would only address problems as they arise.
“There are caregivers growing now in your township,” Greco said. “If they’re growing in their basement, we’ll never know about it.”
He said these amendmentss are not to create more work for the township.
“Patients can’t come to the house?” asked Treasurer Sharry Budd, who sits on the planning commission. “That’s pretty tight.”
“Yes,” agreed Greco. “They are allowed to grow it and give it to persons, but they don’t want foot traffic.”
“A patient could bring two friends,” Budd said.
“It’s difficult to enforce,” Greco agreed. “It’s not illegal to come over to visit. Not illegal to smoke together. Not really friends just hanging out. We’ll not be able to deal with it and stop it.”
“I spoke with our director of public safety and they are in agreement with this,” Boynton said. “It gives them additional tools … to handle what Commissioners Atchinson and Budd brought up. Gives a little bit of bite.”
Commissioner Jeff Jahr questioned whether the home occupation was in residential district only.
“We have dwellings outside of the residential district,” Jahr said, pointing to senior hoursing units.
Greco said this applies to “dwelling,” both a house or a unit. He said a facility or condo might prohibit such growing.
“I sorta feel our zoning ordinance is there to determine how land is used for a business … not how the business should be conducted,” Jahr said. He said this kind of language should be under the township’s general ordinances. He asked why it is in zoning.
Greco said the Michigan Supreme Court held it up as zoning and the township is mirroring what it knows has been found legal. He said the township added “odor” and took out permits.
Jahr requested some edits before sending it on to the board of trustees and that was agreed to.
In other business at the one-hour-and-24-minute meeting, the commission approved temporary land use approval for Walmart Small Business Saturdays on Oct. 17, 24, 30, and 31.
Power reported two residential projects moving from one phase to the next. Victoria Park at Ecorse and Morton Taylor are adding 67 site condos. It was approved in 2006. Cobblestone Creek is entering its third phase, with 69 detached condo units. This, too, was already approved.
Also, at Willow Run Airport, Active Aero, which was approved for a project, has not yet come in for its building permits. Anglin Aviation is planning some hangar buildings. Yankee Air Museum is planning educational hangars and office space. Avflight hangars and office space are under review.