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 Alternative RX, a medical marijuana company, plans to occupy the former Madison Athletic Club at 2 Ajax Drive in Madison Heights, but now officials are grappling with what to do about the location violating the city’s medical marijuana facilities ordinance, which requires a setback of at least 500 feet from nearby homes.

Alternative RX, a medical marijuana company, plans to occupy the former Madison Athletic Club at 2 Ajax Drive in Madison Heights, but now officials are grappling with what to do about the location violating the city’s medical marijuana facilities ordinance, which requires a setback of at least 500 feet from nearby homes.

Photo by Deb Jacques

Medical marijuana site found in violation of ordinance

By: Andy Kozlowski | Madison - Park News | Published January 31, 2020


MADISON HEIGHTS — The Madison Heights City Council is exploring options to address the situation at Alternative RX — a medical marijuana business that plans to open in the city — after it came to light that its location is not in compliance with ordinance requirements.

The plan is for Alternative RX to be located at the site of the former Madison Athletic Club, 2 Ajax Drive, which is within 500 feet of a home in a residential district — something prohibited by the city’s medical marijuana facilities ordinance. According to city officials via email, the house is about 400 feet away.

There are several exceptions allowed in the ordinance, none of which apply to this location. The exceptions include residential zones without any homes in them, areas divided by an interstate, and safety compliance facilities. Alternative RX plans to feature growing, manufacturing and provisioning.

According to Assistant City Attorney Nic Grochowski, in an email sent to the Madison-Park News by City Manager Melissa Marsh, the map used for site selection was incorrect due to a “clerical error.” Yet while it is now known to be incorrect and in violation of the city’s own ordinance, “the map is controlling,” according to the city’s legal counsel.  

However, Marsh has indicated that the City Council is not necessarily OK with this line of logic, and is considering all of its options as it tries to correct the situation. Whether this means following legal’s stance that the deal is valid remains to be seen, although City Councilman Mark Bliss did offer some insights in an email Jan. 27.

“The ordinance error that has been brought to council’s attention has to be corrected by an ordinance update soon,” Bliss said. “We need to bring clarity to our residents on this apparent contradiction between the ordinance language and the map we adopted.”

City Councilman David Soltis said he is uncomfortable with legal’s guidance. He was the first on the council to publicly raise concern about the issue after it was brought up by resident Sean Fleming at a City Council meeting. Fleming unsuccessfully ran for a spot on the Madison Heights City Council last year.

“That’s the most bewildering legal advice I’ve gotten in six years being on council — that an inaccurate published map is controlling,” Soltis said. “This seems to me like a multimillion-dollar mistake by the city. How are we going to rectify this?”

Mayor Brian Hartwell said the current ordinance is not clear enough in its language.

“There’s a legal term for this situation: not ‘error’ or ‘contradiction,’ but ‘ambiguity.’ And there’s a very clear understanding by lawyers and the courts on how to handle ambiguities,” Hartwell said. “When you have an ambiguity, you can look into the meaning of the drafters — what was the intent, and how did those words get on the page?

“A judge will not take a hatchet to a legislative body’s work,” he continued. “The judge will take a smoothing tool to either honor the words on paper, or to honor the underlying policy. That’s what will happen in an actual court of law if anyone were to challenge this.”

But critics say the law is perfectly clear. According to the medical marijuana facilities ordinance, to be eligible for business in the city, “No medical marihuana facility shall be located within 500 feet of, or be adjacent to or abut, a school building, church, family child care home, group child care home or a residential district where residential units are located.”

The ordinance also describes a map that will show the parcels that meet the requirements: “The city shall publish and make available an official map depicting all individual parcels that are located in the M-1 or M-2 district that are eligible for locating an approved medical marihuana facility.”

Mark Kimble, the board president of Madison District Public Schools and a member of the group Madison Taxpayers for Common Sense, said he doubts this would be easily resolved in court. He argued that a map that’s incorrect should not be a legal basis for allowing a business.

“If a judge were to just allow it, then that sets a precedent that undermines the ordinance where people can ignore the law based on past practice by the courts. In this case, the city is trying to ignore its own laws,” Kimble said. “And this issue was pointed out last fall, so why did they wait so long and let the business get so invested?

“I would be frustrated if I were one of the businesses that didn’t make it, finding out I was shoved to the end of the line in favor of a business that didn’t even qualify, due to the negligence of the city in verifying the facts of the application,” he said. “It would’ve been a simple thing to check with a laser measuring device. Just push a button and it places a dot on the house, telling you the exact distance between it and the facility.”

Regarding a potential ordinance change, the mayor said the intent behind the ordinance is more relevant than the exact distance itself.

“The only reason there’s a number, 500 feet, was that the people who opposed marijuana put it there — it was a compromise with them. But what the majority of council did was seek to protect neighborhoods and schools from being adjacent to these properties,” Hartwell said. “So the true underlying policy was to simply insulate some of our sensitive neighborhoods in the city. The number 500 is completely arbitrary — some said it should be a mile, some said it should be zero.”

Kimble disagreed with dismissing the number as irrelevant.

“The 500-foot rule was decided upon by a legislative body who discussed it and compromised before enshrining it as law. That’s the give and take of government,” Kimble said. “If they just change it after the fact, what’s to stop them from changing any other law that inconveniences them?”