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BUSINESS LAW 13: Medical marijuana dispensary denied license due to drug-free zone.

In March 2016, plaintiffs applied for a conditional use permit to continue to operate a medical marijuana caregiver center (MMCC), a medical marijuana dispensary, in the city of Detroit.

The question presented by the case is whether the operation of a MMCC at this location complies with Section 61-3-354(b)(1) of the Detroit Zoning Ordinance, which prohibits the BSEED from approving any request for a MMCC where located within a drug-free zone. A drug-free zone is defined as, in relevant part, an area that is within 1,000 radial feet of the zoning lot of an outdoor recreation facility.

In turn, the zoning ordinance defines an outdoor recreation facility as: The use of land for the purposes of a golf course; skating rink (ice skating, roller skating, roller blading, skate boarding, and similar activities), park, playfield, playground, parkway, playlot; swimming pool; and/or tennis court.

The BSEED concluded that the Rouge River Parkway was part of an active park system and, therefore, that plaintiff’s business, which was located within 818 radial feet of the Parkway, was in a drug-free zone.

The BSEED explained that the City of Detroit Parks and Recreation Department was in the preliminary stages of creating a greenway that would connect the Rouge Valley Parkway to Eliza Howell Park and potentially extend northward. The greenway would include walking and biking paths with benches and garbage cans, and eventually would be become part of the Eliza Howell Park. Having concluded that the location was in a drug-free zone, the BSEED denied plaintiffs’ application.

Plaintiffs appealed.

They contended that the city’s Master Plan identified the Rouge Valley Parkway as a greenway and not as a park. Plaintiffs also argued that the property was not located in a drug-free zone because a greenway was not within the definition of an outdoor recreation facility.

In this case, the court erred when it determined that the Rouge Valley Parkway, a proposed greenway, was an outdoor recreation facility within the meaning of the zoning ordinance.

The Rouge Valley Parkway does not qualify as a park. In other documents, the city specifically indicates that greenways and parks are different. The 2017 Parks and Recreation Improvement Plan, or the Master Plan, includes maps showing both parks and greenways and confirms that the two are different. The Master Plan also identifies greenways as spaces of land that connect other parks, further indicating that the city views greenways and parks differently. Arguably, the city’s proposed usage of the land, under which Rouge Valley Parkway eventually would connect parks and would include biking/walking trails, may be consistent with that of a park. However, the ordinance provides that the city must designate the area as a park for it to be a park.

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