Michigan Court of Appeals Affirms City of Highland Park’s Authority to Regulate Recreational Marijuana Facilities

A unanimous three-judge panel of the Michigan Court of Appeals affirmed summary disposition in favor of the City of Highland Park in a case brought by a company challenging the City’s ordinance prohibiting marijuana facilities within its boundaries. AFJN Holdings, LLC filed suit against the City seeking an order from the Wayne County Circuit Court stating that it was permitted to operate its marijuana facility in the City because it obtained a Certificate of Occupancy prior to the enactment of the City opt-out ordinance thereby invoking the prior non-conforming use doctrine. AFJN also argued that they were automatically opted in to operate a marijuana facility under the Michigan Regulation and Taxation of Marihuana Act because the ordinance at issue was not properly published in accordance with the City Charter. The Court of Appeals, like the trial court, disagreed.

Specifically, the Court of Appeals held that the ordinance at issue is a regulatory, not zoning, ordinance such that the prior non-conforming use doctrine does not apply. As such, whether there was a Certificate of Occupancy issued was not relevant since the City was within its statutory right to regulate an activity on the property. The Court of Appeals also held that the City Charter only required that the ordinance be published to be effective, not that it be enumerated. Because the full text of the ordinance was included in the City Council minutes that were posted to the website, it was properly and timely published in accordance with the City Charter and state law. Accordingly, the ordinance was upheld as valid and AFJN is not permitted to operate its adult-use marijuana facility within the City boundaries.

Attorneys Anthony Chubb and Katherine Ross, who represented the City, noted that the decision confirms municipalities’ regulatory authority across Michigan. “This ruling vindicates the City of Highland Park and all communities in establishing that recreational marijuana licensing is regulatory, and not zoning, in nature,” they said.