As Deadline Looms, New York Municipalities Decide Whether To Prohibit Retail Cannabis Dispensaries and On-Site Consumption Sites
Under New York’s Marijuana Regulation and Taxation Act (MRTA), which became law on March 31, 2021, the State’s cities, towns and villages have until December 31, 2021 to decide whether to “opt out” of allowing retail marijuana dispensaries and on-site consumption sites within their jurisdictions. The deadline has prompted considerable public debate as residents of Westchester County and across the State make their views known to their local government leaders and representatives. The Rockefeller Institute for Government has created a searchable online “Marijuana Opt-Out Tracker,” showing the current status in each municipality.
The legalization of adult-use cannabis will undoubtedly have a direct impact upon local municipalities in New York. For this reason, the MRTA grants the State’s cities, towns and villages a limited amount of local control over adult-use legalization in order to address their residents’ concerns. We summarize here a few of the most notable aspects of the law.
Opting-Out: MRTA § 131(1)
The MRTA gives municipalities the ability to opt-out of allowing retail marijuana dispensaries and/or social consumption sites to operate within their boundaries. In other words, the state-wide licensing and establishment of retail dispensaries and/or on-site consumption operations authorized by the MRTA shall not apply to a city, town or village that adopts a local law prohibiting the granting of such licenses within its jurisdiction – provided such a law is adopted on or before December 31, 201, the opt-out deadline. Municipalities may not opt-out after December 31, 2021. However, a local law repealing such prohibition may be adopted at any time in the future.
Time, Place, and Manner Restrictions: MRTA § 131(2)
Cities, towns and villages that do not-opt out of allowing retail dispensaries or on-site consumption sites within their boundaries may adopt local laws establishing reasonable time, place, and manner (operational) restrictions on these facilities. In doing so, however, a municipality cannot adopt regulations that make the operation of licensed retail dispensaries or on-site consumption sites “unreasonably impracticable” as determined by the Cannabis Control Board, the authority created by the MRTA to administer the law state-wide. Consequently, local regulatory restrictions cannot be so broad or burdensome that they effectively operate as a ban on such operations.
Municipalities may, however, enact reasonable regulations concerning, for example, the locations of retail dispensaries and on-site consumption establishments; the proximity of one licensed operation to another, so as to avoid concentration in one area; hours of operation; and the manner in which such establishments conduct their business. Ultimately, however, pursuant to Section 131(2) of the MRTA, the Cannabis Control Board will determine whether local restrictions are “unreasonably impracticable”.
Specific Location Restrictions: MRTA §§ 72(6) and 77(4)
While the MRTA grants local municipalities limited discretion to regulate the “time, place, and manner” of retail dispensary and on-site consumption operations within their borders, it includes specific provisions on the subject of location: no retail or on-site consumption licensee shall locate a storefront within 500 feet of a school grounds or within 200 feet of a house of worship. This statutory restriction is understood to be the minimum; municipalities may increase this separation distance by adopting other time, place and manner regulations, provided they do so consistent with the requirement that the regulations not render cannabis operations “unreasonably impracticable.”
Bleakley Platt’s Land Use and Planning Practice Group can assist in navigating the requirements of the MRTA. For further information, contact Lino Sciarretta at LSciarretta@bpslaw.com or 914-287-6177.