New Haven City Zoning Code
ARTICLE XXVI
Zoning Related to the Operations of Marijuana Caregivers
§ 515-211 Definitions.
As used in this article, the following terms have their meanings set forth in this section:
A facility where a "primary caregiver" who is legally registered by the Michigan Department of Community Health ("MDCH") may lawfully assist up to five "qualifying patients" who are also legally registered by the MDCH for the acquisition of medical marijuana in accordance with the Michigan Medical Marihuana Act ("MMMA"), 2008 IL 1, MCL § 333.26421 et seq.
Also known as Marihuana; also known as Cannabis. The term shall have the meaning given to it in Section 7601 of the Michigan Public Health Code, 1978 PA 368, as amended, MCL § 333.7106 et seq., as is referred to in Section 3(d) of the Michigan Medical Marihuana Act ("MMMA"), 2008 IL 1, MCL § 333.26423(d). Any other term pertaining to marijuana used in this article and not otherwise defined shall have the meaning given to it in the MMMA and/or in the General Rules ("General Rules") of the MDCH issued in connection with the MMMA.
The acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer or transportation of marijuana or paraphernalia relating to the administration of marijuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, as defined under the MMMA, 2008 IL 1, MCL § 333.26421 et seq.
A person who is operating a "medical marijuana dispensary" by supplying "medical marijuana" for up to five "qualifying patients," as those terms are defined herein and/or under the MMMA, 2008 IL 1, MCL § 333.26421 et seq., and who is registered with the MDCH for that purpose.
A person who has obtained a valid registration card from the MDCH allowing them to possess and purchase medical marijuana.
§ 515-212 Purpose and findings.
The Village makes the following findings in support of its determination that regulation of registered primary caregivers and the location of "caregiver facilities" is consistent with the purposes and intent of the MMMA:
A.
The MMMA does not create a general right for individuals to use, possess, or deliver marijuana in Michigan.
B.
The MMMA's protections are limited to individuals suffering from serious or debilitating medical conditions or symptoms, to the extent that the individuals' marijuana use is carried out in compliance with the provisions of the MMMA, including the provisions related to the operations of registered primary caregivers.
C.
The MMMA's definition of "medical use" of marijuana includes the "transfer" of marijuana "to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition," but only if such "transfer" is performed by a registered primary caregiver who is connected with the same qualifying patient through the registration process established by the Department of Licensing and Regulatory Affairs, and who is otherwise operating in strict compliance with the MMMA and the MMMA General Rules.
D.
The MMMA provides that a registered primary caregiver may assist no more than five qualifying patients with their medical use of marijuana, with a maximum of 12 marijuana plants per qualifying patient.
E.
The MMMA does not, therefore, create a new vocation for entrepreneurs or others who wish to engage in the sale of marijuana to more than five persons. Instead, the MMMA is directed at improving the health and welfare of qualifying patients.
F.
The health and welfare of qualifying patients is improved by permitting the operations of registered primary caregivers, because this allows qualifying patients who suffer from serious or debilitating medical conditions or symptoms to obtain the benefits of the medical use of marijuana, while ensuring that such operations are regulated sufficiently to protect and improve services provided to qualifying patients.
G.
By permitting the operations of registered primary caregivers, this promotes the MMMA's purpose of ensuring that (i) a registered primary caregiver is not assisting more than five qualifying patients with their medical use of marijuana, and (ii) a registered primary caregiver does not unlawfully expand its operations beyond five qualifying patients, so as to become an illegal commercial operation, in the nature of a marijuana collective, cooperative, or dispensary.
§ 515-213 Standards.
A registered "primary caregiver" who is in compliance with the General Rules of the MDCH, the MMMA, and the requirements of the Village of New Haven ("Village") Zoning Ordinance, shall be permitted to grow marijuana for the purposes allowed, and consistent with, the MMMA.
A.
The following standards and requirements shall apply to the location (caregiver facility) at which the medical use of marijuana is conducted by a primary caregiver:
(1)
The medical use of marijuana shall comply at all times with this article, the MMMA, and the MMMA General Rules, as amended.
(2)
A sign identifying the caregiver facility by word, image, or otherwise, or indicating that the medical use of marijuana is taking place on the premises, shall not be permitted; nor shall any vehicle having such a sign be parked anywhere on the premises.
(3)
Shall not change the character of the premises in which it is conducted, nor shall it constitute, create, or increase a nuisance.
(4)
Distribution, including sale of marijuana and/or sale and/or use of items in the administration of marijuana shall not occur at or on the premises of the primary caregiver/caregiver facility. A qualifying patient shall not visit, come to, or be present at the caregiver facility to purchase, smoke, consume, obtain, and/or receive possession of any marijuana.
(5)
Not more than two registered primary caregivers shall be permitted to operate at any one property. No other employees are permitted. Primary caregivers must reside at the property permitted as a caregiver facility if such property is located in an area zoned residential. Any property used solely as a grow operation shall be deemed commercial and is subject to all applicable zoning.
(6)
Shall seek and obtain a zoning compliance certificate from the Village prior to commencement of any activities regulated under this section, and before preparation in anticipation of carrying on activities regulated under this section (i.e., before any building and/or alterations, etc. are commenced, registered caregivers shall seek and obtain a zoning compliance certificate).
(7)
The use of any equipment that negatively affects the insurance rating of the property is prohibited.
(8)
A registered primary caregiver shall not possess marijuana, or otherwise engage in the medical use of marijuana, in a school bus, on the grounds of any preschool or primary or secondary school.
(9)
The medical use of marijuana shall be conducted entirely within an enclosed locked facility (as that phrase is defined by MCL § 333.26423(d) of the MMMA), up to 12 marijuana plants for each registered qualifying patient with whom the registered primary caregiver is connected through the registration process established by the Department of Licensing and Regulatory Affairs, and up to 12 additional marijuana plants for personal use, if the primary caregiver is also registered as a qualifying patient under the MMMA.
(10)
Except for the primary caregiver, no other person shall deliver marijuana to the qualifying patient.
(11)
No one under the age of 18 years shall have access to medical marijuana.
(12)
No on-site consumption or smoking of marijuana shall be permitted on the property of a primary caregiver, except for lawful medical marijuana consumption by the primary caregiver if registered as a qualifying patient under the MMMA or pursuant to and as regulated by the Michigan Regulation and Taxation of Marihuana Act, 2018 IL 1; MCL § 333.27951-27967 ("MRTMA").
(13)
Medical marijuana shall not be grown, processed, handled, and/or possessed at the caregiver facility beyond that which is permitted by law.
(14)
All necessary building, electrical, plumbing, and mechanical permits shall be obtained for any portion of a building or structure in which equipment and devices that support the cultivation, growing, and/or harvesting of marijuana are located or used.
(15)
If marijuana is grown or located in a room with windows, all interior lighting shall be shielded to prevent ambient light from creating a distraction for adjacent properties.
(16)
Related merchandise or products shall not be sold or distributed from the premises caregiver facility, apart from the permitted quantity of medical marijuana.
(17)
To ensure compliance with all applicable requirements and laws, the portion of a building or other structure, such as a cultivation room, where energy use and heating requirements exceed typical limits and chemical storage occurs, are subject to inspection and approval by pertinent Village officials.
(18)
The property and all enclosed, locked facilities shall be available for inspection upon request by the Village President, building official, or law enforcement official.
B.
The operations of a registered primary caregiver shall be permitted only with the prior issuance of a Village permit.
(1)
A complete and accurate application shall be submitted on a form provided by the Village and an application fee in an amount determined by resolution of the Village Board of Trustees shall be paid.
(2)
The permit application shall include the name and address of the applicant; the address of the property; the property owner and any primary caregiver's driver's license, voter registration card or similar record; a current state registration card issued to the primary caregiver; a full description of the nature and types of equipment and material which will be used in marijuana cultivation and processing; an odor mitigation plan; and a description of the location at which the use will take place. The zoning administrator/code enforcement/building official may require additional information necessary to demonstrate compliance with all requirements. The zoning administrator/code enforcement/building official shall review the application to determine compliance with this article, the MMMA and the MMMA General Rules. A permit shall be granted if the application demonstrates compliance with this article, the MMMA, and the MMMA General Rules.
(3)
The use shall be maintained in compliance with the requirements of this article, the MMMA, and the MMMA General Rules. Any departure shall be grounds to revoke the permit and take other lawful action. If a permit is revoked, the applicant shall not engage in the activity unless and until a new permit is granted.
(4)
No caregiver marijuana facility shall be operated in a manner creating noise, glare, fumes or odors detectable to normal senses beyond the boundaries of the property on which the facility is operated. Complaints received about any such facility shall be kept as a Village record, and will be investigated as a nuisance complaint by the Village. The facility may be subject to closure after repeated violations of the Village nuisance ordinance.
(5)
Information treated as confidential under the MMMA, including the primary caregiver registry identification card and any information about qualifying patients associated with the primary caregiver, which is received by the Village, shall be maintained separately from public information submitted in support of the application. It shall not be distributed or otherwise made available to the public and shall not be subject to disclosure under the Freedom of Information Act.
C.
It is unlawful to establish or operate a for-profit or nonprofit marijuana dispensary, collective, or cooperative within the Village, even if such use is intended for the medical use of marijuana.
D.
The use of a premises of a qualifying patient to cultivate medical marijuana in accordance with the MMMA solely for personal use pursuant to MCL § 333.26424(m)(1), does not require a permit under this subsection, nor does cultivation and/or use and/or possession of marijuana under MRTMA require a permit; however, all applicable state laws and Village ordinance requirements must be met with respect to all marijuana cultivation, production, and use activities.
E.
The provisions of this subsection do not apply to the personal use and/or internal possession of marijuana by a qualifying patient in accordance with the MMMA, or for personal use under MRTMA.
§ 515-214 Restrictions and federal law.
Nothing in any ordinance, including this article, or in any other regulatory provision, is intended to grant, nor shall they be construed as granting, immunity from criminal prosecution for growing, sale, consumption, use, distribution, or possession of marihuana not in strict compliance with the MMMA and the General Rules. Also, since federal law is not affected by the MMMA or the General Rules, nothing in this section, or in any other regulatory provision, is intended to grant, nor shall they be construed as granting, immunity from criminal prosecution under federal law. The MMMA does not protect users, caregivers, or the owners of properties on which the medical use of marihuana is occurring from federal prosecution, or from having their property seized by federal authorities under the Federal Controlled Substances Act. It is the sole responsibility of each caregiver to dispense a safe product and to test their products and list the name, quantity, and percentage of the main active ingredient (Delta 9 Tetrahydrocannabinol commonly, known as THC) on the labels of its products. This article shall not be interpreted as intending to legitimize any activities that are prohibited by federal or state law, or by any other ordinance of the Village.
§ 515-215 Severability.
The various sections and provisions of this article shall be deemed to be severable, and should any section or provision of this article be declared by any court of competent jurisdiction to be unconstitutional or invalid the same shall not affect the validity of this article as a whole or any section or provision of this article, other than the section or provision so declared to be unconstitutional or invalid.
§ 515-216 Enforcement.
Any person who shall violate any of the provisions of this article shall be guilty of a municipal civil infraction, and is subject to a civil file of not more than $500, plus costs, which may include all direct or indirect expenses which the Village has incurred in connection with the violation. A violator of this article shall also be subject to such additional sanctions, remedies, suits, and judicial orders as are authorized under Michigan law. Each day a violation of this article continues to exist constitutes a separate violation.
§ 515-217 Conflict.
All existing ordinances are repealed to the extent they conflict with this article.
§ 515-218 Effective date.
This article shall not take effect before the 20th day after its passage or before the date of its publication, whichever occurs first, pursuant to MCL § 66.1.