Hot Topics in Planning Law

Transcription

1 Hot Topics in Planning Law MICHIGAN ASSOCIATION OF PLANNING SEPTEMBER 2017 CATHERINE KAUFMAN BAUCKHAM, SPARKS, THALL, SEEBER & KAUFMAN P.C.

2 Bauckham Sparks speaker Catherine Kaufman Bauckham, Sparks, Thall, Seeber & Kaufman, P.C. 458 W. South Street, Kalamazoo, MI (269) Centennial Way, Suite 170 Lansing, MI (517) Firm website:

3 Michigan Medical Marihuana Act (2008) 3

4 Michigan Medical Marihuana Act Michigan Medical Marihuana Act November 2008 MCL , et seq. Voter Initiated (Law ) Provides: 4 Physician approved use of marihuana by registered patients with certain, debilitating medical conditions Authorizes patient and/or caregiver growing, use of medical marijuana within prescribed limits (remains unchanged) Protects those using marijuana within the parameters of the law from arrest and prosecution under state or local law

5 Michigan Medical Marihuana Act Michigan Medical Marihuana Act November 2008 Issues arising over last 8 years How do qualifying patients and/or caregivers get marijuana? What if a patient could not grow marijuana or could not find a caregiver? How did law enforcement know if a patient/caregiver was operating in compliance with law? How did municipalities enforce zoning, building and safety codes against caregivers if they didn t know where they were? 5

6 Michigan Medical Marihuana Act Michigan Medical Marihuana Act November 2008 Issues arising over last 8 years What about dispensaries? Are they illegal? If so, then why are they allowed in some places? What does a municipality have to do if one is established? Why did some cities give licenses to dispensaries? What about compassion clubs? What about joint grow facilities? What about a testing facility? 6

7 Medical Marijuana case law Further defining extent/scope of medical marijuana use Ter Beek v City of Wyoming, 495 Mich 1 (2014) City s zoning ordinance amendment that prohibited any land use that was in violation of federal law was in conflict with MMMA and was invalid. Cannot prohibit what MMMA allows Footnote: TerBeek does not hold that the MMMA forecloses all local regulation of marijuana 7

8 2016 Amendments to MMMA Amendments by PA 283 to include reference to marijuana equivalents (edibles, oils, etc.) Amendments to MMMA effective 12/20/16 8

9 MMMA MMMA still in effect has not been replaced Qualifying patient can still grow marijuana for his/her own use Primary caregivers can still grow and provide marijuana to their registered patients Unknown impact and/or interrelationship between licensed facilities (MMFLA) and patients/caregivers

10 PA 281, 282 and 283 of

11 New Laws PA 281 of Medical Marihuana Facilities Licensing Act (effective 12/20/16) 11 Authorizes 5 types of facilities: grow facilities, processor, transporters, provisioning centers (dispensary), safety testing facility Establishes a Medical Marihuana Licensing Board (MMLB) 5 member Limits cross ownership of different types of facilities Requires seed to sale tracking (MCL ) Imposes taxes and fees on medical marijuana facilities

12 New Laws PA 281 of Medical Marihuana Facilities Licensing Act (effective 12/20/16) Grower cultivates, dries, trims or cures and packages marijuana (MCL ) 12 License levels: 500/1,000/1,500 plants Only in agricultural or industrial zoning districts or unzoned areas Processor Extracts resin or creates packaged marijuana infused products (MCL ) May only transfer to provisioning centers

13 New Laws PA 281 of Medical Marihuana Facilities Licensing Act (effective 12/20/16) Safety Compliance Facility provides safety and quality testing of marijuana (MCL ) May receive marijuana from primary caregiver or any facility, but may only transfer to a marijuana facility Provisioning Center Acquires marijuana from grow or processing facility - for sale or transfer to qualifying patient or primary caregiver (MCL ) Secure Transporter provides secure transport between licensed facilities (MCL ) 13

14 New Laws PA 281 of Medical Marihuana Facilities Licensing Act (effective 12/20/16) 14 Impose fees and taxes on facilities (MCL , et seq). Three percent (3%) tax on provisioning centers gross receipts to be allocated: 25% to local municipalities in proportion to number of facilities in the municipality; 30% to counties in proportion to number of facilities in county; 5% to county sheriffs in proportion to number of facilities in the county; 30% to the State; 5% to MCOLES 5% to Michigan State Police

15 New Laws PA 281 of 2016 Medical Marihuana Facilities Licensing Act (effective 12/20/16) Impose fees and taxes on facilities (MCL , et seq). License application fee to be set by LARA (MCL ) Annual regulatory assessment on each facility established by LARA to cover administrative costs Annual licensing fee by local municipality of up to $5,000, cover cost of administration and enforcement [MCL (3)] 15

16 New Laws PA 281 of 2016 Medical Marihuana Facilities Licensing Act (effective 12/20/16) Grants power to municipality to regulate (MCL ) 16 Police power ordinance/zoning ordinance Limit to number and types of facilities OPT IN Municipality has to affirmatively adopt an ordinance to allow medical marijuana facilities Municipality may choose to not allow any facilities OR may choose to allow one or more types Municipality should specify numbers of facilities permitted Opt In ordinance police power Zoning ordinance amendments location/approval process

17 New Laws PA 281 of 2016 PA 281 of Medical Marihuana Facilities Licensing Act (effective 12/20/16) Applications for licenses accepted by LARA beginning 360 days after effective date of Act (ie., 360 days after 12/20/16 = 12/15/17) If a municipality receives notice from applicant that they have submitted an application for a license to MMLB, municipality shall provide the following information within 90 days: Copy of the local ordinance authorizing the marijuana facility Copy of any zoning regulations that apply to the facility Description of any violations by applicant related to these ordinances If municipality fails to respond, failure cannot be held against applicant

18 New Laws LARA Bureau of Medical Marijuana Regulation (BMMR) Promulgation of administrative rules Administrative rules further define legislation Emergency Rules likely May change the sequence of State license approval State may approve multiple applications Multiple applications to one applicant Municipality will then have to determine which license holders get local approval Concerns about due process/fair treatment 18

19 Local response to PA 281 of 2016 What does a municipality do (if anything)? Begin discussions at municipal level does the municipality want to allow any facilities? If interested, determine what types of facilities the municipality might want and where they should be located Consult local law enforcement/health department Consider public meeting /survey to gauge citizen input 19 Determine if the municipality should limit numbers Consider ordinances/regulations consult Planning Commission Affirmative OPT IN to allow facilities to within their boundaries Make sure municipal staff and officials understand opt in

20 Local response to PA 281 of Things to consider: Which types of facilities in your municipality (if any)? Is there a need for a facility? Are there appropriate areas for these land uses? Are such land uses consistent with the master plan for the municipality? How many of each facility is appropriate or is there a need for? Locational criteria Growers in agricultural or industrial zoning districts Provisioning centers commercial districts? Safety testing facilities office or industrial? Required separation distances?? Permitted use/special use County zoning - hole in the donut

21 Local response to PA 281 of 2016 What does a municipality do (if anything)? If municipality does not want facilities DO NOTHING Check existing ordinances to make sure there is nothing that authorizes any type of medical marijuana facility (except qualifying patient/primary caregiver) Some municipalities are adopting a resolution that stating that the the municipality does not want any facilities unnecessary but very clear statement If any facilities have been illegally established over time, the municipality may want to move to shut them down (avoid non conforming argument) Consider what other ordinances may need to be revised to deal with facilities (noise, nuisance, etc.) 21

22 Local response to PA 281 of 2016 Information picked up along the way: 22 Many municipalities that do not want any facilities are adopting resolutions to clarify that intent (NONE) Anecdotal information that medical marijuana facilities will be highly financed, corporate sponsored, franchised, etc. Anecdotal information that developers are targeting areas within 2o miles of a university... hubs may develop Anecdotal information that if local municipality has decriminalized use of marijuana the area may be receptive to facilities (City of Kalamazoo/Portage)

23 Local response to PA 281 of Information picked up along the way: Anecdotal information that the push will be for co-location for grow, processing and provisioning centers Anecdotal information that license application fee will be $10,000 to $30,000 Anecdotal information that growers want inside facilities Shut down dispensaries now? (Why are there even ANY dispensaries operating at this point? Illegal until state license, based on local municipal approval) LARA regulations are being developed now First MMFLA Board meeting Advisory Panel not appointed yet

24 New Laws PA 282 (effective 12/20/16) Marihuana Tracking Act (MTA): Requires establishment of statewide internet system that will: Verify medical marijuana ID cards; Track marijuana products in commercial trade by licensee including transferee, date, quantity, price. Determine if transfer exceeds permissible MMMA limits Monitoring of seed to sale tracking Receive and integrate information from third party inventory control and tracking systems. Such system will be available to state, law enforcement and licensees to enforce MMMA and MMFLA Exempt from FOIA production

25 PA 283 (effective 12/20/16) - Edibles New Laws Adds the process of extraction to as medical use Allows use of marijuana infused products intended for human consumptions Allows topical use of marijuana infused products as a medical use of marijuana Amends MMMA to allow use of edibles and topical products

26 Additional Considerations 26

27 Federal Law Additional Considerations Marijuana is a Schedule I controlled substance under federal law. 21 USC 812(c). A Schedule I controlled substance lacks any accepted medical use. Federal law prohibits manufacture, distribution and possession of marijuana Cole Memorandum (2013) allocate federal prosecution resources to federal priorities, ie., will not federally prosecute if someone is in compliance with state medical marijuana law Impact of new U.S. Attorney (Jeff Sessions) unknown Some indicators of more rigorous treatment of marijuana 27

28 Short Term Rentals 28

29 Short Term Rental Issue Short Term Rental - Renting out residential dwelling unit for short periods (daily, weekend, weekly) Potential Characteristics (not always!!) Large Groups Noise More Activity Later Hours 29 In some cases, - negative impacts on adjacent property owners In some cases changes character of residential neighborhood

30 Short Term Rental Issue Historically common in resort/vacation areas 30 Now common everywhere- Air BNB/VRBO/Homeaway Issue much more widespread Competition with hotels/motels/b & Bs

31 Short Term Rental Issue 31 Problem when does short term rental use turn into a commercial use? (like a hotel/motel) When does residential use transform into a commercial use? Does it ever? What is the tipping point? Zoning definition of single family dwelling/multi family dwelling Zoning definition of family 2 part no transient groups Lot coverage larger houses/out of character with neighborhood

32 Short Term Rental Issue Problem when does short term rental use turn into a commercial use? (like a hotel/motel) Duration of stay? Daily/weekend/weekly/monthly Limits on number of occupants Fire code State Construction Code 32 Municipal rental registration ordinance How distinguish group living like fraternity/sorority?

33 Issues Short Term Rental Issue 33 Property rights does the property owner have the right to use the property for short term rental Zoning is the use permitted in the zoning district? Building Code Fire Code Rental ordinance Impacts on neighbors nuisance issues Noise Lights Traffic/Parking Number of people in the rental house

34 Issues Short Term Rental Issue 34 Deed restrictions/condo restrictions private enforcement Beach/lake access anti funneling- compliance? Commercial activity in residential zoning district? As compared to Bed and Breakfast What if property owner lives on site or adjacent? Concentration of Short Term Rentals impact on residential character of neighborhood?

35 Short Term Rental Laws? 35 Michigan Zoning Enabling Act regulates zoning No exclusionary zoning, upon showing of demonstrated need Municipal Rental Ordinance Other regulatory ordinances anti funneling, noise, parking Building code/fire code Condo deed/restrictions private enforcement

36 Short Term Rental Case Law 36 O Connor v Custom Resort Builders, Inc., 459 Mich 335 (1999) deed restriction case: interval ownership of single family dwelling is not a residential purpose within meaning of covenant restricting use of property to single family use. Torch Lake Protective Alliance v Ackermann, COA # (unpublished 11/30/04) - short term rentals violated deed restrictions restricting property to private residential purposes and prohibiting commercial use of property. COA found that short term rentals rose to the level of commercial use and violated township zoning ordinance.

37 Short Term Rental Case Law 37 Mirabella v Township of AuTrain, COA # (unpublished 6/9/15) property owners sued the township seeking to enjoin zoning ordinance amendments that would allow short term rentals in residential districts in resort areas (by special use approval). The Court upheld the Township s right to adopt the zoning ordinance amendments (allowing STRs) based on new master plan. Christians v Township of Clark, COA, # (unpublished 10/20/16) Property owners had used their property for STRs, although the property was zoned single family residential. Court upheld ZBA decision that distinction between a single family property owner allowing a guest to stay in a cabin (no rental) and short term rental of single family dwelling to unassociated renters (commercial/resort use)

38 Short Term Rental Pending Legislation SB 239/HB 4503 pending legislation 38 Declares a short term rental as a residential use of property and a permitted use in all residential zones. Says STRs would not be subject to special use or conditional use approval Says STRs are not commercial use of property Does not prohibit application of nuisance ordinances, etc. to STRs Defines short term rental as rental of a single family or a 1 to 4 family house, dwelling unit or any unit or group of units for less than 28 days at a time. If passed would preempt local zoning control of STRs

39 Short Term Rental Sample Ordinances City of South Haven 39 City of Marquette Golden Township City of St. Joseph (rescinded)

40 Solar Farms 40

41 Solar Farms Why Solar Farms/Solar Energy: PA 295 of 2008, as amended MCL An electric provider shall achieve a renewable energy portfolio credit as follows: 2019/2020 at least 12% renewable energy credit portfolio 2021 at least 15% renewable energy credit portfolio 41 Electric provider shall meet these renewable energy credit standards by one of the following: Generate electricity from renewable energy system for sale to retail customers; or Purchase or otherwise acquire renewable energy credits with or without associated renewable energy

42 Solar Farms Characteristics of solar farm (in general) Panels set in grids/posts in ground = solar array Inverter energy generated through panels is converted to energy for transmission; 400 KW solar array = (approximately) 1 inverter No noise although there may be hum from inverter 1 MW = approximately 7 10 acres of land depending on topography Solar energy companies looking for most desirable: Flat ground 42 Proximity to transmission lines Low snowloads

43 Solar Farms Local land use considerations re request for solar farm 43 Appropriate zoning district Agriculture. Commercial, Industrial Permitted use or special use PA 116 implications with Agricultural Zoning District ( see next slide) Greenfields, urban areas, etc.

44 Solar Farms Local land use considerations re request for solar farm Zoning ordinance requirements site plan, special use Setbacks Security fencing Buffers screening or open area (landscape plan) Other land uses possible with solar farm? Need for decommissioning plan /financial surety Possible building (small) for maintenance Decommissioning Fairly quick removal Return land to prior use Take financial guarantee to insure that municipality can perform decommissioning if company doesn t 44

45 Solar Farms Anecdotal information re solar farms Peak demand for energy = peak production time summer is peak production time and peak demand time Solar energy can serve as needed backup capacity 45 PA 116 implications per MDARD (attached summary) Commercial Solar Farm cannot be located on land that is enrolled in PA 116 If agriculturally zoned and pull out for solar farm have to set aside 2 times the acreage in farmland preservation Potential method of rural economic development

46 Sign Regulations 46

47 . Sign Regulations 47 Sign ordinances Zoning or police power regulations Must be based on legitimate governmental purpose Vehicle/pedestrian/right of way users safety Aesthetics/community appearance Av0idance of blight/nuisance conditions Economic development and maintenance of property Identification for emergency services

48 . Sign Regulations 48 Sign ordinances First Amendment Free Speech - when/how can speech be limited for the public good? Content neutral regulation Rational basis review Deference by courts Not content neutral - regulation must survive strict scrutiny review Necessary to achieve compelling governmental interest Narrowly drawn to achieve that end difficult standard to satisfy

49 Sign Regulations. 49 Sign ordinances First Amendment Free Speech Content neutral regulation - time, place, manner regulations Size/height Design/materials Setbacks/spacing Number of signs Lighting Time for temporary signs

50 . Sign Regulations 50 Sign ordinances First Amendment Free Speech Commercial speech (advertising/marketing) mid level review - regulation of commercial speech must be based on substantial governmental interest, be directly related to the governmental interest and be no more extensive than necessary. Central Hudson Gas & Electric Corp v Public Service Commission of New York, 447 US 557 (1980)

51 . Sign Regulations Sign issues: Highway Advertising Act MCL , et seq 51 Applies to signs within 3000 feet of either side of right of way of interstate highways, freeways, state designated primary highway. Applies to signs whose facing is visible from highway. No signs visible from state highway allowed in these areas, except for directional or official signs, real estate signs, on premise signs or off premise signs (see below)

52 . Sign Regulations 52 Sign issues: Highway Advertising Act MCL , et seq Off premise signs are only allowed in business areas if: Within 660 feet of state highway right of way; AND Zoned for commercial, industrial, business or services OR Unzoned commercial or industrial areas Under the Highway Advertising Act, removal of lawfully erected signs or sign structures subject to payment of just compensation municipality would have to pay compensation Question of impact of ReedvTownofGilbert(US Supreme Court June 2015)

53 Sign Regulations. 53 Sign issues: Lawful non-conforming signs Lawful non-conforming signs regulated by zoning (sign regulations in zoning ordinance) cannot amortize nonconforming signs Non conforming signs regulated by police power ordinance no statutory prohibition on amortization Signs may be amortized under police power sign ordinance home rule city Adams Outdoor Advertising v City of East Lansing, 439 Mich 209 (1992) Legal applicability to townships/counties?

54 Sign Ordinances. 54 Post Reed considerations: Options for sign regulations Completely content neutral Survive Strict Scrutiny is this possible? Time /Place/Manner regulations advancing a legitimate governmental interest Prof. Gerald Fisher presentation in depth analysis

55 Contact information Catherine Kaufman 458 W. South Street, Kalamazoo, MI Centennial Way, Suite 170 Lansing, MI (517) Firm website: 55