Green Genie, Inc. v. City of Detroit
| Decision Date | 18 April 2022 |
| Docket Number | Case Number 21-10790 |
| Citation | 599 F.Supp.3d 544 |
| Parties | GREEN GENIE, INC. and Alvin Alosachi, Plaintiffs, v. CITY OF DETROIT, City of Detroit Board of Zoning Appeals, and City of Detroit Buildings, Safety Engineering and Environmental Department, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Michael F. Wais, Jonathan F. Karmo, Howard & Howard Attorneys PLLC, Royal Oak, MI, for Plaintiffs.
Eric B. Gaabo, Detroit City Law Department, Detroit, MI, for Defendant City of Detroit.
The City of Detroit's zoning laws prohibit the location of a medical marijuana dispensary within a "drug-free zone," which includes the area within 1,000 feet of a school. Plaintiffs Green Genie, Inc.’s and Alvin Alosachi's permit application to operate its marijuana distribution facility was denied under this provision. After unsuccessfully pursuing administrative and state court appeals, the plaintiffs sued the City, alleging a violation of their rights under the Due Process Clause of the Fourteenth Amendment and contending that the City granted permits to other applicants that did not meet the 1000-foot threshold. The City has moved for summary judgment on all claims, arguing that the plaintiffs’ reading of the applicable zoning provisions ignores the plain statutory language, which bars their intended use, and they have not produced any evidence of a procedural or substantive defect that rendered the process unconstitutional. The Court agrees and will grant the motion and dismiss the complaint.
Although other issues are found in the case, a main focus of the dispute is on the manner of measuring the distance between the two relevant "zoning lots" as prescribed by the zoning ordinances. Most of the underlying historical and geographical circumstances of the case are undisputed. The litigation focuses on the application and interpretation of those zoning ordinance provisions.
Plaintiff Green Genie, Inc. is a Michigan corporation owned by plaintiff Alvin Alosachi. The company was formed by Alosachi with the goal of opening a medical marijuana provisioning center in the City of Detroit. The defendants are the City of Detroit, the City's Buildings, Safety Engineering and Environmental Department (Building Department), and its Board of Zoning Appeals (BZA).
On October 14, 2018, plaintiff Alosachi applied to the Building Department for a special land use permit allowing Green Genie to establish a medical marijuana provisioning facility in the City at 16711 Mack Avenue. The application was denied two days later on the ground that the department's review had "resulted in a determination that the proposed Medical Marihuana Provisioning Center Facility (MMPCF) site is located within 872.8 feet of a ‘Drug Free Zone’ known as St. Clare of Montefalco School addressed as 16231 Charlevoix, Gross Pointe Park, MI 48230."
Included with the letter was a tax record from the City of Grosse Pointe Park for the property identified by tax parcel ID 3900040147000, which was classified in the tax record as "School," and which indicated that the parcel comprised platted "lots 147 to 151," on which the St. Clare of Montefalco School building was located, along with platted "lots 161 to 171," on which the St. Clare church building was located, and a "20 foot alley adjacent to lots 152 to 167."
The City submitted aerial photographs of the properties in question, which it says verify that the shortest distance between the property on which the plaintiff intended to operate and the nearest corner of the parcel on which the school and church were located is 869.61 feet. That measurement represents the distance between the nearest two points of the plaintiffs’ proposed dispensary site and the north-northeast corner of the parcel on which the church and school buildings are located. The City also points out that the church premises in their entirety include a gymnasium building, which is located on a separate tax parcel identified with a different parcel ID, and which did not figure in the measurement.
In a declaration prepared for this case, Building Department Plan Reviewer and Building Inspector Sherita Elliott attested that, when she reviewed the plaintiff's 2018 application, she concluded, after reviewing the Grosse Point property records and corresponding aerial photographs, that the available information "showed that the St. Clare of Montefalco School and Church in Grosse Pointe Park were located together on a single parcel, with its northwest property line at Mack and Whittier Streets, and that this parcel was less than 1,000 feet from the zoning lot containing Plaintiffs’ proposed use." "For this reason, [she] determined that Plaintiffs’ proposed medical marijuana facility was within a drug-free zone, and could not be approved under the City's zoning regulations."
On October 17, 2018, Alosachi appealed the Building Department's decision denying his special land use application. At a hearing before the Board of Zoning Appeals, Building Department representative Jada Philson testified that the school and church buildings associated with St. Clare both are located on the same parcel, as denominated in the City of Grosse Pointe tax records. During her testimony, Philson conceded that a gymnasium building that also was associated with the church was in fact on a separate parcel, but she reiterated that the church building and the school building are on the same parcel.
It is undisputed that the entire school premises in question is within the City of Grosse Pointe, not the City of Detroit. However, the City's attorney at the BZA hearing explained that its corporation counsel had issued a legal opinion stating that the spacing ordinance properly could be applied with respect to "sensitive uses" located up to 1,000 feet beyond the city line, when determining whether a marijuana dispensary was proposing to operate within a "drug-free zone." The board then affirmed, by a vote of eight to one, the determination that the plaintiff's application for a special land use properly was denied because the proposed site was nearer than 1,000 feet to a school.
The BZA ruling, however, was just the beginning. The dispute tracked through an exhaustive course of subsequent administrative and judicial hearings and appeals. On March 9, 2019, the plaintiffs filed suit in the Wayne County, Michigan circuit court, seeking a judicial reversal of the BZA decision. The state court issued an order dismissing the complaint on June 6, 2019, and the Michigan Court of Appeals denied an application for leave to appeal on November 1, 2019.
Separately, while their judicial appeal was pending, the plaintiffs asked the BZA for reconsideration of its decision, and a second hearing was held on April 23, 2019. The board summarily denied the plaintiffs’ request for rehearing after concluding that no new information had been presented that was not considered at the earlier hearing. The plaintiff then filed a second suit in the Wayne County court, which issued an order remanding the case to the BZA for further proceedings, because the court found that the administrative record did not clearly indicate whether the board had considered "potentially new evidence" produced by the plaintiffs.
On April 14, 2020, after the case was remanded, the BZA held a third hearing. During that hearing, the plaintiffs presented a "property sketch" that indicated that the distance from the plaintiffs’ site to the corner of the "lot" on which the school building was located was more than 1,000 feet. However, the City's Building Department representative, Ms. Philson, reiterated the position that the pertinent measurement was to the corner of the entire parcel comprising the platted lots of both the school and church buildings and once again affirmed that by that reckoning the separation of the properties was well short of the 1,000-foot minimum. The Board adjourned the hearing to allow Building Department representatives to review the plaintiffs’ proffered property sketch. At a continued hearing on July 21, 2020, the City's corporation counsel testified and explained, once again, that the "relevant legal boundary" for measuring separation was the nearest boundary of the single tax parcel which comprised both the school and church buildings, and that the plaintiff's property sketch did not comport with this rule because it measured the distance to the constituent lot on which the school building was located, bypassing and overlooking the adjacent church lot that was in the same parcel. The BZA then voted again — this time unanimously — to affirm the Building Department's decision denying the application. The plaintiff requested a rehearing of the second BZA decision, but the request for rehearing was denied on July 28, 2020, after the Board found that no new information had been presented.
After the fifth and final hearing before the BZA, the plaintiffs returned to the Wayne County court and filed a motion seeking reversal of the decision. The state court heard oral argument on the motion and issued a decision affirming the BZA ruling on February 18, 2021. The plaintiffs’ application for leave to appeal was granted by the Michigan Court of Appeals on May 12, 2021. According to the current publicly available docket information, the appeal now is fully briefed and was set for remote oral argument on April 5, 2022. For now, the matter remains pending before the state court of appeals.
Section 50-3-535(b)(1) of the Detroit City Code states that "[a] medical marihuana caregiver center or medical marihuana provisioning center facility must not be located in any of the following: (1) Within a drug-free zone, as defined in Section 50-16-172 of this Code...." Section 50-16-172 of the City Code defines the term "drug-free zone" as "[a]n...
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