Local Control Goes Loco

Last year, a township
in Livingston County passed an ordinance aimed, so they said, at illegal drug
use. The ordinance declared that police could stop you on the street and
dispose of your paraphernalia. The ordinance’s definition of paraphernalia was
so broad that it could easily be the credit card in your wallet, or a $20
dollar bill or an iPod. From the warrantless seizures of property without due
process to the broad definition of paraphernalia, the entire ordinance was
nauseatingly unconstitutional. When a client questioned me about it, huffing
angrily, “How can they get away with this if it’s so unconstitutional?” my
answer didn’t make him much happier. “Because,” I said, “nobody is challenging
them.”

The good thing about
unconstitutional ordinances is that they are unenforceable. The bad thing about
them is that municipalities will write them and pass them knowing as much,
hoping to fool the public into thinking they know something we don’t, hoping
they are not challenged, hoping to get away with it until it is just accepted. Bad
laws require successful challenge in the courts to be stricken off the books,
and usually this is on the dime of an unlucky criminal defendant.  

Well, to you
potentially unlucky cannabis business owners, save a few bucks for the land use
lawyers. The far-and-away majority of medical cannabis ordinances coming out of
Michigan’s locals lately are glaringly, blatantly, embarrassingly
unconstitutional, and they aren’t going down without a fight. I guess they are still
really pissed about the whole TerBeek v.
Wyoming
thing. A surprising number of them were pinning their hopes on that
case and when the Michigan Supreme Court held that locals could not outright ban
protected medical cannabis conduct, the scheming began: How to ban cannabis without
making it look like we’re banning cannabis? Hmm. 

Turns out there are oh
so many clever ways to disguise a de
facto
ban as an ordinance. My personal favorites have to be the municipalities
who pretend they didn’t know about the TerBeek
decision and continue to ban the cultivation of cannabis in private residential
homes (you know who you are). A close second are those that provide special use
permits for cultivation or dispensaries, but the zoning and site distance
restrictions are crafted to prevent any business for actually qualifying for a
permit. That’s just mean. Still, others are content to make stuff up. One city
defined a dispensary as any place a caregiver assisted his patient with the
medical use of cannabis, making every Starbucks and every WalMart parking lot a
“dispensary.”

Cannabis is here, and the
world didn’t end. Now locals and their attorneys need to stop freaking out and
zone cannabis businesses with dispassionate common sense instead of pouty
obstinance. It would save us all valuable time and resources. Hint: If it
conflicts with the MMMA, that’s bad.

There are rare,
notable exceptions (thank you, Ferndale) but most are a blatant overreach. Make
no mistake. Like frogs in a pot, if we do not challenge these ordinances, we
will all be drowning in municipal nonsense. 

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