Ypsilanti Township Wins 'seminal' Case Against Couple Pumping Intense Marijuana Fumes Into Neighborhood

[bobandtorey]

A two-year dispute between neighbors over whether or not an intense smell of medical marijuana exists - or was actually caused by skunks or pine trees – has been

 

resolved by a Washtenaw County Circuit Court judge.

 

The court also made a significant ruling on whether or not municipalities can enact zoning laws limiting where caregivers can operate.

 

Judge Archie Brown ruled that the smell of unburnt marijuana pumped out of the home at 1397 Crestwood Ave. indeed exists and was strong enough to constitute a

 

public nuisance per Ypsilanti Township’s noxious fumes ordinance.

 

In his order, Brown wrote that there was ample evidence from Washtenaw County Sheriff’s Office deputies, township officials and neighbors to conclude that a “nursery” produced an intense odor that disrupted the lives of next door neighbors Kenneth and Linda Foster.

 

“The court finds credible the testimony of Kenneth and Linda Foster, supported by other witnesses, including the testimony of various Washtenaw County Sheriff’s

 

deputies, that the Fosters’ lives have been negatively affected by the offensive odor created and dispersed by the(1397 Crestwood Ave.),” Brown wrote.

 

He ordered the owners of the home, Ralph Engle and Deborah Klobuchar, to cease growing medical marijuana in their basement and further enjoined the couple from

 

emitting any kind of “noxious” odor from their home.

 

The judge also refuted defendants’ claims that the township zoning ordinance prohibiting more than 12 plants for personal use in a residential zones contradicted the

 

Michigan Medical Marihuana Act (MMMA) and is unconstitutional. In Ypsilanti Township, caregivers growing 72 plants as is allowed under the MMMA for personal use and for up to five patients must grow in light industrial zones.

 

Thomas Levigne, one of Engle and Klobuchar's lawyers, told the Ann Arbor News state law trumps local ordinances when it comes to caregivers and patients growing medical marijuana.

 

"It’s continuing the attack on Americans with disabilities who are trying to have their medicine of choice in peace. It’s very unfortunate and an erroneous decision," he said.

Klobuchar and Engle’s attorneys cited a previous case in which the Michigan Supreme Court struck down a city of Wyoming ordinance outright banning medical marijuana. They argued that it applied to the restrictions the township imposed prohibiting caregivers from growing 72 plants in residential zones.

 

Brown disagreed.

“In the instant case the township’s ordinance does not ban all uses under the MMMA. The ordinance merely regulates where caregivers do business,” he wrote. “The

township ordinance does not conflict with the MMMA as all uses of the MMMA are permitted under the township ordinance.”

 

Township attorney Dennis McLain called the case a “complete and total victory for the township” and said he has been receiving calls from municipal attorneys across the state asking about what he described as a “seminal” case. 

“Judge Brown declared the ordinance constitutional. He found Engle and Klobuchar were emitting offensive odors and he enjoined them from doing that,” McLain said.

The case was filed in December 2012 but original complaints stem back over two years. Kenneth and Linda Foster described the odor of medical marijuana being pumped

 

out of their neighbors’ home as “offensive”, “intense” and like a “dead skunk.”

 

Linda Foster testified in court that the smell pumped out of a metal pipe from the basement of Klobuchar’s home was so strong at night that it made her cough, gave her headaches and caused her heart to race. Kenneth Foster said the couple occasionally vomited because of the smell.

 

Ypsilanti Township attorneys who brought the lawsuit argued that the odor violates the township’s noxious fumes zoning ordinance, which states that the "creation of offensive odors shall be prohibited" in any zone.

 

Court documents show Engle and Klobuchar testified that the odor couldn’t have existed because they installed a filtration system.

 

Brown wrote that Engle testified that an associate “created a system to remove the heat from the unit and would filter the air; that any odors should be within the property; and that the property has three vents with no offensive odor coming from the vents.”

The associate who installed the vents also testified that he no longer smells the odors outside the house and noted that he has the system in his own home.

"The odor issue was immediately redressed with installation of carbon filters. There was no odor anymore," Levigne told The Ann Arbor News.

But around ten Sheriff’s Office deputies and township officials testified to having smelled the odor of unburnt marijuana emanating from 1397 Crestwood Ave. at various times.

Some said they didn’t smell it on certain visits, but all said they did at one time or another. Others went inside the Fosters’ home and reported smelling the odor there.

A DTE Energy employee testified that the electricity usage at the house is higher than usual and a bill of over $15,000 is owed at the property. An Ann Arbor Police Department detective testified that the electricity usage is five to 20 times higher than what is considered normal for a house of that size.

Engle attributed that to an herb garden, growing his own food and an air conditioner.

In May 2012 , Engle entered into a plea agreement in which he agreed to stop the emissions after he was cited for a civil infraction in March. Officials say that agreement with the 14-B District Court has gone ignored. Township attorneys said Engle admitted that there was a disruptive odor being pumped from the home by entering into the agreement, but Engle testified that he was coerced into admitting responsibility.

On a subsequent court-ordered inspection of the home by township officials, Engle set up a tarp tunnel throughout the home to prevent a township building inspector from seeing anything but several plants in the basement.

McLain said the ruling also now gives the authorities to inspect the full property with “minimal” notification and said he doesn’t expect further issues at the property.

 

http://www.mlive.com/news/ann-arbor/index.ssf/2014/07/ypsilanti_township_wins_semina.html

[t-pain]

mlive needs some proofreading on these articles.

 

also MMMA trumps puny ypsilanti ordinance.

[bobandtorey]

Thanks T so whats next for this case ?

[Dank Hill]

Interesting, this is the same town that allows two commercial grow facilities as well

[Highlander]

 

Interesting, this is the same town that allows two commercial grow facilities as well

 

 

Aren't the commercial grows in the city and this case in the Township? At any rate, the commercial grows are probably compatible with zoning - hence no issues with the locals. Zoning was the ultimate issue in this case. Not saying it is a proper ruling, but it might explain the disparate treatment.

 

Isn't this the guy who was on these boards years ago rudely pushing p2p sales...the same guy who flew a cannabis flag at home? Some people don't know when to stop bringing attention to themselves.

 

We also have to ask ourselves if we really expect neighbors, especially those who live close by, to deal with smell issues and the potential trouble (rippers, etc.) it might attract....similar to starting a hog farm in the backyard in a suburban neighborhood.

[ilynnboy]

Wouldn't a few can filters been better than this?

There are Numerous ways to eliminate odors.

Ypsilanti has generally been pro cannabis it is dis-heartening that they have enacted such restrictions.

I mean, How bad did this place smell?

Regardless of wether the MMMA of 2008 supersedes it or not, we should try to be respectful of others and seek to be above reproach.

I am not condemning these caregivers at all as I have zero first hand knowledge of or experience with their odorous situation.

I just know that it can Reek.

[pic book]

Wouldn't a few can filters been better than this?

There are Numerous ways to eliminate odors.

Ypsilanti has generally been pro cannabis it is dis-heartening that they have enacted such restrictions.

I mean, How bad did this place smell?

Regardless of wether the MMMA of 2008 supersedes it or not, we should try to be respectful of others and seek to be above reproach.

I am not condemning these caregivers at all as I have zero first hand knowledge of or experience with their odorous situation.

I just know that it can Reek.

can always grow no or low-odor strains.  whoops--that would be stealth.

[t-pain]

article already says they installed filters. 

[bobandtorey]

article already says they installed filters. 

 

 

Great now they just wait for Leo to come someday, sometime

[ilynnboy]

Prior to or post legal action?

[ozzrokk]

   

 

Aren't the commercial grows in the city and this case in the Township? At any rate, the commercial grows are probably compatible with zoning - hence no issues with the locals. Zoning was the ultimate issue in this case. Not saying it is a proper ruling, but it might explain the disparate treatment.

 

Isn't this the guy who was on these boards years ago rudely pushing p2p sales...the same guy who flew a cannabis flag at home? Some people don't know when to stop bringing attention to themselves.

 

We also have to ask ourselves if we really expect neighbors, especially those who live close by, to deal with smell issues and the potential trouble (rippers, etc.) it might attract....similar to starting a hog farm in the backyard in a suburban neighborhood.

 

 

Is this the same guy? I didnt recognize the name but it sure sounds like it...........

[+Malamute]

Yea,.. it was dutch.

 

I would venture to say with no likelihood of being wrong, that Dutch could have resolved this peacefully with the neighbours. He chose not to. He fought them the whole way and shoved it in their faces no less.

 

It's sad.  Basic nuisance issues will likely prevail in the courts.(light spillage, odors, dust, glare, smoke etc.)  It is one of those things where your rights end at another persons body(property), within reason.

 

 I do not think they can prevent you from growing in your home at all, but if neighbours file complaints, authorities can force you to abate the nuisance.

[ilynnboy]

Nice post Mal.

So true.

Respect would have kept this problem from becoming one..

[ozzrokk]

Yea,.. it was dutch.

 

I would venture to say with no likelihood of being wrong, that Dutch could have resolved this peacefully with the neighbours. He chose not to. He fought them the whole way and shoved it in their faces no less.

 

It's sad.  Basic nuisance issues will likely prevail in the courts.(light spillage, odors, dust, glare, smoke etc.)  It is one of those things where your rights end at another persons body(property), within reason.

 

 I do not think they can prevent you from growing in your home at all, but if neighbours file complaints, authorities can force you to abate the nuisance.

 

 

Yep Dutch was the name that I remember................

[bobandtorey]

OK then was he trying to make a point or  a Law so others may not have this happen to them ?

[+Malamute]

Idiots always justify their actions....

 

I will assume he was trying to make a point or justify his point of view under the guise of helping others...

 

;-p

[bobandtorey]

Thanks again some say pushing Law's maybe how they get defined 

[t-pain]

In his order, Brown wrote that there was ample evidence from Washtenaw County Sheriff’s Office deputies, township officials and neighbors to conclude that a “nursery” produced an intense odor that disrupted the lives of next door neighbors Kenneth and Linda Foster.

 

 

hey bob, how do you feel about the article posting a picture of their house and adress ?

 

they posted a medical patients addy and photo of his house. if you guys want to make a trip and smell for yourself, lets schedule a day huh? anyone got a free day this weekend to go take a smell? count me in.

 

some of you are being very anti-patient right now... its scary to see how people turn against each other just because of some poorly written articles that are breaking the confidentiality LAW of the MMMA which states a patients name and addy are confidential and disclosing this is ILLEGAL.

[+Malamute]

Not even close to anti-patient.  Dutch is simply a douchebagg IMO. ;-) And i know more about the story than many....

 

My statement on nuisance issues stands. :-)

[bobandtorey]

hey bob, how do you feel about the article posting a picture of their house and adress ?

 

they posted a medical patients addy and photo of his house. if you guys want to make a trip and smell for yourself, lets schedule a day huh? anyone got a free day this weekend to go take a smell? count me in.

 

some of you are being very anti-patient right now... its scary to see how people turn against each other just because of some poorly written articles that are breaking the confidentiality LAW of the MMMA which states a patients name and addy are confidential and disclosing this is ILLEGAL.

Am sorry 

 

i don't feel any kind of  Negative  way 

 

And i do agree it is  not right to post his Address  or anyones in the paper as they also did with us   ( news paper and T.V news ) When Fox 2 news  came over to do our story  they put Marihuana trees behind us and aired it on TV  and my mom saw the news that night and called us asking were did you all get all that Marijuana i told her it wasn't our cannabis mom  Fox put them their because she new our plants where only 2 inch tall  and is one reason we left our own home of 30+ years  for us it was one of the hardest thing we had

 

done because Torey and i  didn't feel safe their any longer we have not even been able to drive by the old house because it  would upset  her too much 

[bobandtorey]

Residents of an Ypsilanti Township home from which neighbors complained the strong odor of un-burnt marijuana was emitting have been ordered to quit growing medical marijuana in their basement.

 

 

Credit wikimedia commons

 

 

 

 

Listen

 

1:22

 

WEMU's Bob Eccles reports.

 

Attorney Tom Lavigne of the law firm of Cannabis Council represents owners of the home at 1397 Crestwood. 

He says the residents were not doing anything that doesn't fall under the Michigan Medical Marihuana Act.
 

Lavigne says the judge also neglected to consider a state Supreme Court ruling against the city of Wyoming, Michigan, which attempted to ban medical marijuana altogether. 

Township attorney Dennis McLain says the local case was different than the Wyoming case.

He says the township regulates the location of medical marijuana facilities.

Lavigne says he has not decided whether to appeal the judge's ruling.

 

http://wemu.org/post/judge-orders-ypsilanti-township-residents-stop-growing-medical-marijuana

[bobandtorey]

hey bob, how do you feel about the article posting a picture of their house and adress ?

 

they posted a medical patients addy and photo of his house. if you guys want to make a trip and smell for yourself, lets schedule a day huh? anyone got a free day this weekend to go take a smell? count me in.

 

some of you are being very anti-patient right now... its scary to see how people turn against each other just because of some poorly written articles that are breaking the confidentiality LAW of the MMMA which states a patients name and addy are confidential and disclosing this is ILLEGAL.

 

 

Sorry he won't be growing Cannabis their any more

[MiMedical]

No tell, No sell, No smell...