P Pinebrook Warren LLC v. City of Warren

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

PINEBROOK WARREN, LLC, GREENHOUSE FOR PUBLICATION FARMS WARREN, LLC, HAPPY TRAILS August 25, 2022 GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, and HRS RETAIL, LLC,

Plaintiffs-Appellees, and

ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, KAPP WALLED LAKE, LLC, and PURE ROOTS, LLC,

Plaintiffs-Appellees/Cross-Appellants,

v No. 355989 Macomb Circuit Court CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, and ETHAN VINSON,

Defendants/Cross-Defendants- Appellees,

and ROBERT BOCCOMINO and KEITH SADOWKSI,

Defendants-Appellees, and

CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

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Defendant, and

LIVWELL MICHIGAN, LLC, LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, VENDCO MICHIGAN, INC., LEVEL UP GARDEN, LLC, and 8TH STREET WELLNESS, PC, LLC,

Intervening Defendants/Cross- Plaintiffs,

and

SOZO HEALTH, INC.,

Intervening Defendant/Cross-Plaintiff- Appellant/Cross-Appellee,

and

989 VENTURES, LLC, doing business as NORTHERN ROOTS,

Intervening Defendant/Cross-Plaintiff- Cross-Appellee,

and

AE&K, LLC, BDECO I, INC., BDECO II, LLC, DNVK 4, LLC, MDMS GROUP, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC

Intervening Defendants.

PINEBROOK WARREN, LLC, GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, and HRS RETAIL, LLC,

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Plaintiffs-Appellees, and

ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, KAPP WALLED LAKE, LLC, and PURE ROOTS, LLC,

Plaintiffs-Appellees/Cross-Appellants,

v No. 355994 Macomb Circuit Court CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, and ETHAN VINSON,

Defendants/Cross-Defendants- Appellees,

and ROBERT BOCCOMINO and KEITH SADOWSKI,

Defendants-Appellees, and

CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendant, and

LIVWELL MICHIGAN, LLC,

Intervening Defendant/Cross-Plaintiff- Appellant/Cross-Appellee,

and

SOZO HEALTH, INC., LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, VENDCO

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MICHIGAN, INC., LEVEL UP GARDEN, LLC, and 8TH STREET WELLNESS, PC, LLC,

Intervening Defendants/Cross- Plaintiffs,

and

989 VENTURES, LLC, doing business as NORTHERN ROOTS,

Intervening Defendant/Cross-Plaintiff- Cross-Appellee,

and

AE&K, LLC, BDECO I, INC., BDECO II, LLC, DNVK 4, LLC, MDMS GROUP, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants.

PINEBROOK WARREN, LLC, GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, and HRS RETAIL, LLC,

Plaintiffs-Appellees, and

ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, KAPP WALLED LAKE, LLC, and PURE ROOTS, LLC,

Plaintiffs-Appellees/Cross-Appellants,

v No. 355995 Macomb Circuit Court

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CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, and ETHAN VINSON,

Defendants/Cross-Defendants- Appellees,

and ROBERT BOCCOMINO and KEITH SADOWSKI,

Defendants-Appellees, and

CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendant, and

LIVWELL MICHIGAN, LLC, SOZO HEALTH, INC., LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, and VENDCO MICHIGAN, INC.,

Intervening Defendants/Cross- Plaintiffs,

and

LEVEL UP GARDEN, LLC, and 8TH STREET WELLNESS, PC, LLC,

Intervening Defendants/Cross- Plaintiffs-Appellants/Cross-Appellees,

and

989 VENTURES, LLC, doing business as NORTHERN ROOTS,

Intervening Defendant/Cross-Plaintiff- Cross-Appellee,

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AE&K, LLC, BDECO I, INC., BDECO II, LLC, DNVK 4, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants- Appellants/Cross-Appellees,

and

MDMS GROUP, LLC,

Intervening Defendant.

PINEBROOK WARREN, LLC, GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, and HRS RETAIL, LLC,

Plaintiffs-Appellees, and

ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, KAPP WALLED LAKE, LLC, and PURE ROOTS, LLC,

Plaintiffs-Appellees/Cross-Appellants

v No. 356005 Macomb Circuit Court CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, and ETHAN VINSON,

Defendants/Cross-Defendants- Appellees,

and

-6-ROBERT BOCCOMINO and KEITH SADOWSKI,

Defendants-Appellees, and

CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendant, and

LIVWELL MICHIGAN, LLC, SOZO HEALTH, INC., LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, VENDCO MICHIGAN, INC., LEVEL UP GARDEN, LLC, and 8TH STREET WELLNESS, PC, LLC,

Intervening Defendants/Cross- Plaintiffs,

and

989 VENTURES, LLC, doing business as NORTHERN ROOTS,

Intervening Defendant/Cross-Plaintiff- Cross-Appellee,

and

AE&K, LLC, BDECO I, INC., BDECO II, LLC, DNVK 4, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants, and

MDMS GROUP, LLC,

Intervening Defendant- Appellant/Cross-Appellee.

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PINEBROOK WARREN, LLC, GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, and HRS RETAIL, LLC,

Plaintiffs-Appellees, and

ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, KAPP WALLED LAKE, LLC, and PURE ROOTS, LLC,

Plaintiffs-Appellees/Cross-Appellants,

v No. 356011 Macomb Circuit Court CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, and ETHAN VINSON,

Defendants/Cross-Defendants- Appellees,

and ROBERT BOCCOMINO and KEITH SADOWSKI,

Defendants-Appellees, and

CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendant, and

LIVWELL MICHIGAN, LLC, SOZO HEALTH, INC., LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, VENDCO MICHIGAN, INC.,

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LEVEL UP GARDEN, LLC, and 8TH STREET WELLNESS, PC, LLC,

Intervening Defendants/Cross- Plaintiffs

and

989 VENTURES, LLC, doing business as NORTHERN ROOTS,

Intervening Defendant/Cross-Plaintiff- Appellant/Cross-Appellee,

and

AE&K, LLC, BDECO I, INC., BDECO II, INC., DNVK 4, LLC, MDMS GROUP, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants.

PINEBROOK WARREN, LLC, and HRS RETAIL, LLC,

Plaintiffs-Appellees, and

GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, KAPP WALLED LAKE, LLC, and PURE ROOTS, LLC,

Plaintiffs-Appellees/Cross-Appellants,

v No. 356017 Macomb Circuit Court

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CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, ETHAN VINSON,

Defendants/Cross-Defendants- Appellants/Cross-Appellees, and

ROBERT BOCCOMINO, KEITH SADOWSKI, and CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendants-Appellants/Cross- Appellees, and

LIVWELL MICHIGAN, LLC, SOZO HEALTH, INC., LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, VENDCO MICHIGAN, INC., LEVEL UP GARDEN, LLC, 8TH STREET WELLNESS, PC, LLC,

Intervening Defendants/Cross- Plaintiffs,

and

989 VENTURES, LLC, doing business as NORTHERN ROOTS,

Intervening Defendant/Cross-Plaintiff- Cross-Appellee,

and

AE&K, LLC, BDECO I, INC., BDECO II, LLC, DNVK 4, LLC, MDMS GROUP, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants, and

JOHN LAYTON.

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PINEBROOK WARREN, LLC, ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, KAPP WALLED LAKE, LLC, and PURE ROOTS, LLC,

Plaintiffs-Appellees/Cross-Appellants, and

GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, and HRS RETAIL, LLC,

Plaintiffs-Appellees,

v No. 356023 Macomb Circuit Court CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, and ETHAN VINSON,

Defendants/Cross Defendants- Appellees,

and ROBERT BOCCOMINO and KEITH SADOWSKI,

Defendants-Appellees, and

CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendant, and

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LIVWELL MICHIGAN, LLC, SOZO HEALTH, INC., LEVEL UP GARDEN, LLC, and 8TH STREET WELLNESS, PC, LLC,

Intervening Defendants/Cross- Plaintiffs,

and

LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, and VENDCO MICHIGAN, INC.,

Intervening Defendants/Cross- Plaintiffs-Appellants/Cross-Appellees,

and

989 VENTURES, LLC, doing business as NORTHERN ROOTS,

Intervening Defendant/Cross-Plaintiff- Cross-Appellee,

and

AE&K, LLC, BDECO I, INC., BDECO II, LLC, DNVK 4, LLC, MDMS GROUP, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants.

PINEBROOK WARREN, LLC, GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC, PURE WARREN, LLC, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, KAPP WALLED LAKE, LLC, PURE ROOTS, LLC, and HRS RETAIL, LLC,

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Plaintiffs-Appellees,

v No. 359269 Macomb Circuit Court CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, ETHAN VINSON, ROBERT BOCCOMINO, and KEITH SADOWSKI,

Defendants-Appellees, and

CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendant, and

LIVWELL MICHIGAN, LLC, SOZO HEALTH, INC., LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, VENDCO MICHIGAN, INC., LEVEL UP GARDEN, LLC, 8TH STREET WELLNESS, PC, LLC, 989 VENTURES, LLC, doing business as NORTHERN ROOTS, AE&K, LLC, BDECO I, INC., DNVK 4, LLC, MDMS GROUP, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants-Appellants, and

BDECO II, LLC,

Intervening Defendant.

PINEBROOK WARREN, LLC, GREENHOUSE FARMS WARREN, LLC, HAPPY TRAILS GROUP, INC., AUBREY VENTURES, LLC, BLUE SPRUCE VENTURES, ALTERNATIVE RX, LLC, HCM WARREN, LLC, JAR CAPITAL OF WARREN, LLC, PURE GREEN WARREN, LLC,

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PURE WARREN, LLC, EMERALD BUSINESS PARK, PC, LLC, DKB2, LLC, MPM-R WARREN, LLC, KAPP WALLED LAKE, LLC, PURE ROOTS, LLC, and HRS RETAIL, LLC,

Plaintiffs-Appellees,

v No. 359285 Macomb Circuit Court CITY OF WARREN, CECIL ST. PIERRE, LC No. 2019-004059-CZ RONALD PAPANDREA, STEVEN WARNER, RICHARD SABAUGH, ETHAN VINSON, ROBERT BOCCOMINO, KEITH SADOWSKI, and CITY OF WARREN MEDICAL MARIHUANA REVIEW COMMITTEE,

Defendants-Appellants, and

LIVWELL MICHIGAN, LLC, SOZO HEALTH, INC., LE BATTLE CREEK, INC., WEISBERGER VENTURES II, LLC, VENDCO MICHIGAN, INC., LEVEL UP GARDEN, LLC, 8TH STREET WELLNESS, PC, LLC, 989 VENTURES, LLC, doing business as NORTHERN ROOTS, AE&K, LLC, BDECO I, INC., BDECO II, LLC, DNVK 4, LLC, MDMS GROUP, LLC, WARREN CAPITAL HOLDINGS, LLC, WEST FORT HOLDINGS, LLC, and FRAZHO PROVISIONING, LLC,

Intervening Defendants. Before: SAWYER, P.J., and SHAPIRO and REDFORD, JJ. SHAPIRO, J. (concurring in part and dissenting in part).

I respectfully dissent. Though I concur in the majority’s treatment of the due process claim, I would affirm the trial court’s ruling that the Open Meetings Act (OMA) was violated.

Any analysis of the OMA’s applicability should begin with the premise that “[t]o further the OMA’s legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists.” Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 223; 507 NW2d 422 (1993). See also Wexford Co Prosecuting Attorney v Pranger, 83 Mich App 197, 201; 268 NW2d 344 (1978) (interpreting the OMA liberally in favor of openness).

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As the majority points out, our decision regarding the applicability of the OMA must be based on the language of the City’s Marijuana Ordinance. The ordinance states that after the applications have been approved by the Chief Zoning Inspector, they “shall be transmitted to the Review Committee for approval.” Marijuana Ordinance, § 19.5-13(4)(a) (emphasis added). The majority discounts this plain language, noting that a reading of the phrase in the context of the entire ordinance indicates that the word “approval” does not actually mean “approval” because only the City Council had authority to grant a license. I agree that the Council had final authority to grant the license, but the “approval” language in the ordinance demonstrates that the Review Committee was not merely advisory.

Moreover, this reading of the ordinance is consistent with the actual practice of the application process. The Review Committee, after approximately 13 meetings closed to the public, selected the 15 applicants it concluded should be granted licenses. And the City Council—with apparently no debate on the merits of the applications and no public comment—granted licenses to those applicants.1 Moreover, the Council did not undertake any ranking of the applicants as required by the ordinance, which provided that “the Council shall rank the applicants in order, considering the factors outlined above.”

The majority relies heavily on Davis v Detroit Fin Review Team, 296 Mich App 568; 821 NW2d 896 (2012), as a particularly helpful guide in this case. Davis involved the unique question of the role of a financial review team established by the governor that advised the emergency financial manager during the Detroit fiscal crisis. Accordingly, I view that case as sui generis and do not agree that it provides substantial guidance here where the Review Committee was formed by ordinance and designated the selected applicants directly to the Council.

Far more helpful in my view is Herald Co v Bay City, 463 Mich 111; 614 NW2d 873 (2000). In that case, the job of fire commissioner had to be filled. The city charter stated that such a decision was to be made by the city commission “on the recommendation of the city manager.” Id. at 115. The Supreme Court first held that the city manager could not be a public body because he was a single individual. Id. at 129-130. The Court then held that the committee formed by the city manager was not a public body because it was not provided for in the charter. Rather, the city manager chose to have a committee assist him and selected its members. See id. at 135-136. By contrast, in the instant case, the Review Committee was formed pursuant to ordinance,2 determined

1 As stated in Booth, 444 Mich at 223, “[t]he deliberation of public policy in the public forum is an important check and balance on self-government.” Given the absence of any public deliberation by the Council after months of private deliberation by the Review Committee, the “check and balance” role intended to be served by the OMA could only have been provided by public access to the Review Committee’s meetings. 2 As noted by this Court in Morrison v East Lansing, 255 Mich App 505, 519-520; 660 NW2d 395 (2003), abrogated on other grounds by Speicher v Columbia Twp Bd of Trustees, 255 Mich App 505; 660 NW2d 395 (2014), the Herald Court “focused on the source of the committee’s power, which was its formation by the city manager.” In Morrison, this Court distinguished Herald Co on those grounds in holding that a building committee was a public body when it was created by

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the ranking without any input from the public or the City Council, and provided its ranked list directly to Council, not merely to a third person who had been designated to make the recommendation. And unlike the city manager’s committee in Herald, the Review Committee was empowered to “approve” applications.

This is a close case, but I conclude that fidelity to the ordinance’s terms, as well as the policy-making work of the Review Committee, weighs heavily in favor of transparency and public access to the process. Therefore, I would affirm the trial court’s ruling that the Review Committee constitutes a public body under the OMA and its decision to invalidate the 15 licenses that were a product of the Review Committee’s closed meetings.

/s/ Douglas B. Shapiro

the city counsel through resolution. Id. at 520. This Court concluded that “[t]he city council effectively authorized the [building committee] to perform a governmental function.” Id. Notably, the committee in Morrison was appointed only “to make recommendations concerning the development of the community center.” Id. at 507.

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