Judge strikes down Detroit marijuana initiative

In a surprise move late Friday, a Wayne County Circuit Court judge overturned a voter-approved medical marijuana initiative that would have relaxed local control in Detroit this year.

The initiative, placed on the November ballot as Proposal B, specified which zoning districts medical marijuana-related facilities could be located within in Detroit. It would have allowed provisioning centers and processors in all business and industrial districts, including downtown and Midtown.

Chief Judge Robert Colombo Jr. also partially overturned the zoning portion of a separate medical initiative, Proposal A, that sought to allow dispensaries to open within 500 feet of another dispensary; near liquor, beer and wine stores; child care centers, arcades and parks.

The decisions came after Colombo, earlier in the day, dismissed two cases that had sought similar action — one brought by VK Real Estate Holdings III LLC, a company seeking a medical marijuana license to operate in the city, and the other by Detroit residents Marcus Cummins and Deborah Omokehinde. Colombo ruled they had failed to establish standing or show “special injury."

The dismissal seemed to deliver a victory to Citizens for Sensible Cannabis Reform, the group that had brought forward the two initiatives last year.

Colombo said, however, the city could proceed with a lawsuit or motion of its own seeking to overturn the two initiatives.

"The parties in the suit were realigned by mutual agreement this afternoon," said Lawrence Garcia, Detroit's Corporation Counsel in a statement to the Free Press. "Shortly after the city became a plaintiff in the suit, Judge Colombo granted our motion."

Attorneys for the Citizens for Sensible Cannabis Reform declined to comment immediately on the ruling.

In its motion, the city argued that both proposals contained zoning provisions and determined the location of uses, and should be tossed out because Michigan law prohibits zoning by initiative.

The city pointed to a ruling in another local case, Korash v. Livonia, where the Michigan Supreme Court decided that a zoning ordinance cannot be enacted by initiative.

Colombo ruled that the city's interpretation of the law was not misplaced.

"Indeed, the fact that the cases in question may no longer be good law is immaterial where Korash has not been overruled and dictates that the citizens of a home rule city cannot ... employ a voter initiative to rezone property," Colombo wrote.

Citizens for Sensible Cannabis Reform attempted to argue that the city waived any right it had to challenge the ballot initiatives since it failed to take any action allowed by the city charter. The group also argued that the city improperly relied on the original plaintiffs — the business owner and homeowners — who were found to lack standing. But Colombo disagreed.

"Citizens' argument is moot because at the hearing held on the city's motion and citizens' request, the parties agreed to be realigned such that the city would become plaintiff and file a complaint against Citizens," Colombo said.

Among its other arguments, the city also asserted that Proposal A conflicted with the Michigan Medical Facilities Licensing Act and the City Charter.

But Colombo agreed with Citizens and said Proposal A only brings Detroit in line with the state's standards.

"There is no conflict since medical marijuana facility operators can now be licensed by the State of Michigan as well as the city," Colombo wrote.

The initiatives were both approved by 60% of voters last November but have been in limbo since then after a crop of lawsuits surfaced, challenging the measures. But the trouble began for the proposals even before they were placed on the ballot.

Although the city's election commission approved Proposal A to be placed on the ballot, it decided that Proposal B inappropriately sought to amend zoning so it denied placing it on the Nov. 7 ballot.

But a lawsuit filed by the cannabis reform group challenged the decision and the court decided last September to place the measure on the ballot.

Proposal B, which was struck down in its entirety, sought to amend Chapter 61 of Detroit's city code to establish land use standards and procedures. It amends the city's zoning ordinance to be consistent with Michigan's Medical Marihuana Facilities Zoning Act. The proposal also sought to allow growers and secure transporters to open within the city's M1-5 industrial districts and B1-5 business districts.

Prior to Colombo's decision, attorney Charles Murphy, who represents Citizens for Sensible Cannabis Reform, said early Friday that he believed the judge has "significant grounds to uphold both proposals under the law as it exists today."

"On the zoning part of the ordinance, we believe it's proper to amend the zoning ordinance," Murphy said. "We believe it's still regulating the activity and it's not based on the classic definition of a zoning district."

Colombo’s decision comes days after Mayor Mike Duggan signed a 180-day moratorium on new medical marijuana permits and licenses.

The Detroit City Council approved the moratorium Tuesday, citing ongoing legal challenges and concerns raised about the two voter-approved initiatives.

"This is a cautionary tale for those who want to seek ballot initiatives with illegal language in them or language that is afoul of proven case law," Councilman James Tate, who drafted the resolution, said before the council. "This is what has created this situation ... (Not) working with the city to try and find some common ground. This is a perfect example of things that can go wrong."

Attorney Jason Canvasser, who represents Citizens for Sensible Cannabis Reform, said early Friday that he disagreed with the city's decision to put a moratorium in place.

"I think they're putting the cart before the horse at this point," Canvasser said about the moratorium. "It's just another attempt to subvert the will of the people."

Prior to the voter-approved initiatives, the city already had an ordinance regulating dispensaries in place. Tate originally introduced the ordinance in 2015 and it went into effect March 1, 2016. An effort to amend the ordinance began a year later.

Contact Katrease Stafford: kstafford@freepress.com or 313-223-4759.