Hillger Enterprises LLC v. City of Detroit ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
HILLGER ENTERPRISES, LLC, UNPUBLISHED
November 12, 2020
Plaintiff-Appellant,
and
RIG PROPERTIES 2, LLC, and SOUTHTRACK
MANAGEMENT 2, LLC,
Plaintiffs,
v No. 350170
Wayne Circuit Court
CITY OF DETROIT, LC No. 18-009417-CZ
Defendant-Appellee.
Before: BOONSTRA, P.J., and CAVANAGH and BORRELLO, JJ.
PER CURIAM.
Plaintiff1 appeals by right the trial court’s order granting summary disposition in favor of
defendant. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In 2017, defendant gave plaintiff conditional zoning approval to operate a Medical
Marijuana Caregiver Center (MMCC).2 Also in 2017, the Michigan Department of Licensing and
1
Plaintiffs Rig Properties 2, LLC and Southtrack Management 2, LLC voluntarily dismissed their
claims against defendant with prejudice in the trial court, and are not parties to this appeal.
2
1984 Detroit Zoning Ordinance § 61-16-131 defines a “medical marihuana caregiver center” as
“[a] medical marihuana business operated by a registered primary caregiver that distributes
medical marijuana, in a manner authorized by the [Michigan Medical Marihuana Act,
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Regulatory Affairs (LARA) issued several emergency rules pertaining to the Medical Marihuana
Facilities Licensing Act (MMFLA), MCL 333.27101 et seq. Emergency Rule 19 provided that an
applicant who had applied no later than February 15, 2018 for a state license3 to operate a
“proposed marihuana facility” under the MMFLA could “temporarily operate” a facility “that
would otherwise require a state operating license” if certain other criteria, not relevant to this
appeal, were met.4 Before that deadline, plaintiff submitted to LARA an application for a license
to operate a commercial marijuana facility; specifically, plaintiff applied for a “Class C grow
license” to operate a marijuana growing facility. On February 12, 2018, the city clerk for defendant
approved an “Attestation E” form submitted by plaintiff. The Attestation E, signed by both the
city clerk and a member manager of plaintiff, authorized plaintiff, as “the applicant for a state
operating license as named below in part B,” to “temporarily operate a proposed marihuana facility
as provided in the LARA . . . Emergency Administrative Rules filed with the Sec. of State . . . .”
On April 9, 2018, defendant’s law department submitted a memorandum to its city council
addressing medical marijuana. The memorandum stated that defendant “was willing to authorize
temporary operation for the approximately 70 MMCC locations that had previously received
zoning approval as a MMCC. As required by [LARA], the Detroit City Clerk’s office executed a
form called Attestation E for 57 locations, which constitute the only facilities that are currently
allowed to be operating as a dispensary in Detroit.” Plaintiff was one of the 57 entities
“authorize[d] for temporary operation . . . .”
According to plaintiff’s complaint, officers from the St. Clair Shores Police Department
executed a search warrant on June 14, 2018 at 661 Hillger Street in Detroit and seized and
destroyed plaintiff’s property at that location. On June 15, 2018, defendant sent plaintiff a letter
informing plaintiff that its planned use of its site at 661 Hillger Street as a marijuana growing
facility was not authorized. Plaintiff stated in its complaint that it ceased all operations on June
19, 2018.
On August 2, 2018, plaintiff filed a complaint for declaratory and injunctive relief. Plaintiff
sought a declaratory judgment from the trial court that “Attestation E is a license to temporarily
operate a MMFLA facility” and that “Defendant issued Attestation E to Plaintiffs and cannot
revoke it without due process of law.” Plaintiff also sought “an Injunction enjoining Defendant
MCL 333.26421 et seq.], to registered qualifying patients as defined by the Act, or performs other
activities pertaining to medical marihuana authorized by the Act.”
3
The MMFLA requires state licensure to operate as a marijuana “grower,” “processor,” “secure
transporter,” “provisioning center,” or “state compliance facility.” MCL 333.27102(ff). Although
by convention the various marijuana acts in Michigan use the term “marihuana,” in this opinion,
apart from direct quotation, we will employ the more common spelling “marijuana.”
4
See Rule 19. Temporary operation; limited circumstances; conditional.
https://www.michigan.gov/mra/0,9306,7-386-83994-454538--,00.html (last accessed October 21,
2020).
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from any further attempts to rescind Plaintiff[’s] Attestation E.” Plaintiff withdrew its application
for a Class C Grower license from LARA in November 2018.
After defendant answered the complaint, plaintiff moved to amend, seeking to add claims
for monetary damages. The trial court denied plaintiff’s motion. Defendant subsequently filed a
motion for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10). Defendant
argued that while plaintiff was permitted to operate a MMCC, it was not permitted to operate a
marijuana growing facility. Defendant also argued that the case was moot because plaintiff had
withdrawn its application for a Class C grower license with LARA. The trial court held that
plaintiff had only been authorized to operate a MMCC, not a growing facility, and that the case
was moot in any event, and granted defendant’s motion for summary disposition. This appeal
followed.
II. STANDARD OF REVIEW
The trial court did not specifically state which subrule(s) it relied upon in granting
defendant’s motion. Summary disposition is appropriate under MCR 2.116(C)(8) if “[t]he
opposing party has failed to state a claim on which relief can be granted.” An issue is moot if “an
event occurs that renders it impossible for a reviewing court to grant relief.” B P 7 v Bureau of
State Lottery, 231 Mich. App. 356, 359; 586 NW2d 117 (1998). Therefore, mootness is an
appropriate ground for granting summary disposition under MCR 2.116(C)(8). We review de
novo the trial court’s determination that a case is moot, Garrett v Washington, 314 Mich. App. 436,
449; 886 NW2d 762 (2016), as well as its decision on a motion for summary disposition under
MCR 2.116(C)(8), Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999).
III. ANALYSIS
The trial court concluded in part that because plaintiff withdrew its application for a Class
C Grow license in November 2018, the case was moot. We agree.
“In order to appeal, a party must be an aggrieved party.” Garrett, 314 Mich. App. at 449
(quotation marks and citation omitted). “On appeal, the litigant must demonstrate that he or she
is affected by the decision of the trial court.” Id. at 450 (quotation marks and citation omitted).
“An issue becomes moot when a subsequent event renders it impossible for the appellate court to
fashion a remedy.” Id. (quotation marks and citation omitted).
For a trial court to grant a request for declaratory judgment, there must be an actual
controversy between the parties. MCR 2.605(A)(1) (“In a case of actual controversy within its
jurisdiction, a Michigan court of record may declare the rights and other legal relations of an
interested party seeking a declaratory judgment, whether or not other relief is or could be sought
or granted.”). “In general, ‘actual controversy’ exists where a declaratory judgment or decree is
necessary to guide a plaintiff’s future conduct in order to preserve his legal rights.” Shavers v
Attorney General, 402 Mich. 554, 588; 267 NW2d 72 (1978).
In its complaint, plaintiff sought a declaratory judgment that the “Attestation E is a license
to temporarily operate a MMFLA facility” and that “[d]efendant issued Attestation E to Plaintiff[]
and cannot revoke it without due process of law.” Plaintiff also sought an injunction “enjoining
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Defendant from any further attempts to rescind Plaintiff[’s] Attestation E.” As stated, plaintiff
sought to amend its complaint to add claims for monetary damages, but the trial court denied its
motion; on appeal, plaintiff does not challenge that denial.
Evaluating plaintiff’s claims for declaratory and injunctive relief requires that we interpret
the language of Attestation E. Attestation E is a document generated by LARA as authorized by
the MMFLA. Generally, principles of statutory interpretation apply to language used by
administrative agencies. See, e.g., City of Romulus v Mich DEQ, 260 Mich. App. 54, 65; 678 NW2d
444 (2003). If such language is “unambiguous on its face, the drafter is presumed to have intended
the meaning plainly expressed and further judicial interpretation is not permitted.” Id.
The plain language of Attestation E is that an “applicant for a state operating license” may
operate a temporary facility under certain conditions, provided that the applicant meets certain
other criteria and complies “with the Emergency Administrative Rules and the MMFLA.” When
plaintiff withdrew its application for a license under the MMFLA, it was no longer an “applicant
for a state operating license.” The plain language of Attestation E therefore prevented the trial
court, at the time it interpreted plaintiff’s Attestation E, from granting plaintiff any of its requested
relief; indeed, once plaintiff withdrew its license application, an order granting the relief would
have had no practical effect. Accordingly, the trial court correctly determined that plaintiff’s case
was moot. B P 7, 231 Mich. App. at 359; Garrett, 314 Mich. App. at 450. Because we agree with
the trial court’s determination of mootness, we do not address plaintiff’s other arguments
concerning the trial court’s determination that it was only authorized to operate an MMCC, not a
marijuana growing facility.
Affirmed.
/s/ Mark T. Boonstra
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
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