Amicus Brief

John Ter Beek v City of Wyoming

Case Year: 2013
Case Forum: Michigan Supreme Court
Keywords: preemption, zoning, medical marijuana, Michigan Medical Marihuana Act (MMMA), Michigan Zoning Enabling Act (MZEA), federal Controlled Substances Act
Amicus Counsel:

Andrew J. Mulder | Vincent L. Duckworth | Cunningham Dalman, P.C. | 321 Settlers Road | Holland, MI 49422-1767 | 616-392-1821


The City of Wyoming’s zoning ordinance that prohibits all illegal land uses is enforceable against Appellee, a City of Wyoming Resident and medical marijuana patient under the Michigan Medical Marihuana Act (MMMA), because the ordinance is authorized by Michigan Zoning Enabling Act (MZEA) and is not preempted by MMMA. For public policy reasons, such as local government having broad authority over land use and issues of local concern, the MMMA should not be read to supersede the authority of municipalities to enact and enforce lawful zoning regulations under MZEA. Also, unlike similar Michigan laws, the MMMA does not expressly limit the power of local governments to regulate land use. In addition, the Court of Appeals did not engage in the proper legal analysis for when a city zoning rule is challenged as an exclusionary zoning rule. Lastly, Appellee’s claimed use is not a land use in violation of the zoning ordinance; therefore, there is no incompatibility between the zoning ordinance and the MMMA.


In a unanimous opinion by Justice MCCORMACK, the Supreme Court held:
The federal controlled substances act does not preempt § 4(a) of the MMMA, but § 4(a) preempts the ordinance because the ordinance directly conflicts with the MMMA.

MSC requested LDF amicus brief? No

The City of Wyoming enacted an amendment to its zoning ordinance which provides: “USES PROHIBITED BY LAW. Unless not expressly permitted under this Ordinance are prohibited in all districts. Uses that are contrary to federal law, state law or
local ordinance prohibited.” Plaintiff, John TerBeek, a
Wyoming resident and qualified medical marijuana patient filed a complaint for declaratory relief. Judge Leiber entered an Order denying Plaintiff s motion for Summary Disposition (declarative relief) and granting Summary Disposition to the Defendant. Judge Leiber determined that although the zoning code of the City might conflict with the Michigan Medical Marihuana Act(MMMA), the MMMA is preempted by the federal Controlled Substances Act and therefore does not preempt the provisions of the zoning code of the City. Plaintiff filed a claim of appeal with the Michigan Court of Appeals which reversed the Order of Summary Disposition of the Kent County Circuit Court stating that the provisions of the zoning code of the City of Wyoming is preempted by the MMMA and further stating that the federal Controlled Substances Act
does not preempt the MMMA.

Case Number: 2012-22
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