Retail marijuana zoning rules adopted in Riverhead, over town supervisor’s opposition

A zoning code regulating recreational marijuana businesses in Riverhead, barring them from locating near residences, schools and other family-friendly places, was adopted by the Riverhead Town Board Tuesday. 

The board voted 4-1 to adopt the code, with Supervisor Yvette Aguiar casting the lone dissenting vote, arguing that it will be invalidated by the state, as she misrepresented the contents of a document outlining upcoming state regulations.

The new Riverhead code requires that marijuana businesses be a minimum distance of 1,000 feet from schools, day care facilities, residential uses and libraries, as well as at least 500 feet from places of worship, beaches, parks, community centers and entertainment businesses and organizations (such as the Long Island Aquarium, Splish Splash and East End Arts.) In addition, they cannot be located within 2,500 feet of another marijuana business. 

While the code allows marijuana businesses in downtown zoning districts, the code’s minimum-distance restrictions prevent them from locating in the downtown area. The most commercial space for marijuana business, due to the minimum-distance restrictions, is located along stretches of the Route 58 commercial corridor. 

Council members during the vote applauded the public process for drafting the regulations. Most of the code came out of conversations at three public forums held by an ad-hoc committee led by Council Member Ken Rothwell, along with Deputy Town Attorney Annemarie Prudenti, and attended by business leaders and residents.

Prospective marijuana business owners and some residents praised the town’s draft code during a public hearing last month, with some speakers saying it was the most friendly to the emerging industry on Long Island. The Long Island region will receive 20 of the 150 licenses that the Office of Cannabis Management has announced it will grant to for-profit businesses throughout the state.

Riverhead is one of four towns on Long Island that did not opt out of retail sales of marijuana last year. The Town Board in a 3-2 rejected a local law to opt out, with Aguiar and Rothwell supporting having Riverhead opt out. State legislation legalizing the use, cultivation and retail sales of marijuana for recreational use, allowed towns and villages until December 2021 to opt-out of retail sales within their borders.

In comments before the board’s vote was taken, Aguiar brought up “guidance” she said she received “five minutes before the meeting.”

“I called around to other counties and states and attorneys, and what I was told was that the state will annul our resolution, and it’s not valid,” Aguiar said during the meeting. 

The document Aguiar referenced, provided to RiverheadLOCAL after the meeting, was published by State Office of Cannabis Management on Oct. 28. Titled “Guidance for Adult-Use Retail Dispensaries,” the document provides interim guidance for retail dispensary licensees to help them “plan for how to operate their dispensaries…before regulations are formally adopted” by the state. (See below.)

“This guidance document provides clarity on what the Office’s expectations are in relation to those regulations and laws currently in place and the regulations that will be promulgated in the future,” the document states.

The 27-page guidance document discusses branding — including prohibiting practices and materials that appeal to people under the age of 21 — staffing, staff training, sales practices, inventory and inventory tracking, in-store displays, drive-thru window operations, delivery services, and other aspects of operation the local municipality, under the state legislation, has no authority to regulate.

The guidance document in more than one place states, as does the state legislation, that local municipalities retain regulatory authority “over time, place and manner of operation” of premises located within their borders. For example it states, “The location of the licensed premises must be approved by the Office [of Cannabis Management] as part of the dispensary’s site plan (described above) and comply with any local zoning ordinances.”

Aguiar falsely claimed that the town’s authority to regulate times of operation “has been removed” by the guidance document. 

“The state has now indicated in this new guidance that marijuana can be sold from 8 o’clock in the morning to 12 midnight,” Aguiar said, claiming that the guidance only allows the board to regulate operations between the hours of 12 midnight to 8 a.m.

In fact, the guidance document, states: 

Municipalities are authorized to pass local laws and regulations governing the time, place, and manner, including the hours of operation for adult-use retail dispensary, which: 

• Shall not be allowed to operate from 12:00 AM to 8:00 AM, unless given express written permission by such municipality, or the municipality passes a local ordinance, authorizing it to operate beyond such hours; and 

• Shall not restrict operations to less than 70 hours a week provided however, this provision shall not be construed as removing the licensees’ discretion to operate for less hours of operation. 

The guidance does not limit the local municipality’s ability to regulate hours of operation except to with respect to the 70-hour minimum.

Aguiar also brought up other topics mentioned in the guidance document that she said “troubled” her, including that dispensaries can operate a drive-thru window with written approval from the Office of Cannabis Management. “So every bank now becomes a hot commodity for marijuana,” the supervisor complained.

The document also provides guidance for cannabis delivery services. The supervisor seemed surprised by that provision.

“You can order it online,” Aguiar said. “This is their guidance making delivery service. You can have a delivery service — 25 people per location could go out and deliver,” she said.

But the state legislation, enacted in March 2021, authorized licenses for cannabis delivery services. 

Aguiar said the code setbacks from schools, daycares and parks were “out the window” under the new guidance document.  “The only designation they gave in this new guidance is that schools, I can’t sell it within 500 feet. Also, house of worships, 200 feet.” The state regulations set those minimum setbacks but do not prevent the municipality from increasing the setbacks or from establishing minimum setbacks from other types of uses. The state legislation also states the dispensaries cannot be near school grounds, houses of worship or community facilities.

“We didn’t have any regulations, so that’s why I was so adamantly against it,” Aguiar said. “And we have a lot of work to do in this town. We don’t want to be that drug capital of the world.”

After being called by board members to explain the situation, Deputy Town Attorney Annemarie Prudenti said she had not seen the document Aguiar was referring to. She said the town had a call with the state about the town’s legislation and said they may come down with additional time restrictions for the businesses, contrary to the state law that left that up to the municipalities, she said. Prudenti recommended the board adopt the local law, so it could have “something on the books.”

“If legally we have to battle our municipal home rule rights and our zoning rights, we’ll do that,” Prudenti said. “And perhaps I suspect we’ll join with the other municipalities. Because there is no way we, all the towns that adopted the local laws, misinterpreted the clear language in the state statute regarding our ability for time, place, manner and saturation.”

The law’s adoption comes as the state prepares to issue the first adult-use cannabis licenses in the state. The Office of Cannabis Management opened license applications for the first dispensaries in late August. The first licenses will be given to businesses majority-owned and run by “justice involved” individuals, or people that have been convicted of marijuana-related offenses in New York State, and their close relatives. 

Aguiar’s husband speaks out, calls marijuana a “gateway drug”

Paul Carr, Aguiar’s husband, sparked the conversation about the local law by objecting to the marijuana code during the public comment portion of the meeting before resolutions were voted on. 

“I usually do not respond to issues, the obvious reason, as the husband of the town supervisor. I am here on my own accord. However, I cannot in good conscience as a resident of Riverhead stand by and not comment,” Carr said. 

“I am sorry to break up the love fest with marijuana and Riverhead. While I respect the opinions of the previous individuals that appeared before the board in the past, I want to make a point. I spent seven years as a detective in the NYPD’s Narcotics Division, I witnessed firsthand the destruction caused by the use of illegal drugs,” Carr said. “Marijuana is not a victimless crime or an exception.” 

“The division conducted thousands of voluntary debriefings of drug users. The majority stated that they experimented with marijuana, which evolved into heavier drug use of cocaine, heroin, crack and other drugs,” Carr said. “Money is not everything. We need to protect our children or residents from this harmful drug. Visitors should visit downtown Riverhead to see the penguins in the aquarium, not to purchase and consume marijuana. I do not want our town to be known as the marijuana capital of the world. In the words of former First Lady Nancy Reagan, simply just say no to drugs.”

According to the National Institute on Drug Abuse, some research suggests marijuana use is likely to precede use of other drugs, but the connection is not that simple. The majority of people who use marijuana do not go on to use other “harder” substances, according to the NIDA, and other substances besides marijuana, such as alcohol and nicotine, are also used before a person progresses to other, more harmful substances.

Mike Foley of Riverhead, who has advocated for Riverhead to embrace adult-use marijuana sales, disputed Carr’s claims about marijuana being a “gateway drug,” drawing from his own experience as a marijuana user and that he has never been tempted to consume harder drugs offered to him. 

“Marijuana has caused a tremendous amount of grief and misunderstanding that go back to the ‘30s with a movie called ‘Reefer Madness,’” Foley said, referring to the 1936 propaganda film that links marijuana use to crime. “Fact of the matter is medical conclusive evidence is that alcohol is far worse than marijuana is. The gateway that the prior speaker spoke about, has more to do with the dealers that they were getting the marijuana from,” he said. “When you went to a dealer, and he was selling weed and he was selling pills, and he was selling coke and selling heroin, he wanted to introduce people to that.  Now, I had seen that and I certainly never had any temptation to go anywhere beyond marijuana,” Foley said.  

“I’ve said here, I’ve been smoking for 50 years. I couldn’t say that till it was legalized a couple of years ago. A lot of people have heard me speak here. You might not agree with what I say. But clearly my brains have not been scrambled by marijuana,” he said. 

“Marijuana is not addictive and does not lead to other drugs. ‘Just say no,’ as Nancy Reagan says, locked up millions of people, spent over a trillion dollars in enforcement that went nowhere. It did nothing. The only thing we need to do is classify drugs in the dangerous category, and in the recreational and medicinal category. And there has been proof in study after study— Harvard, Yale, Princeton, cancer institutes — that this is a beneficial drug if it’s used properly. And I just hope everybody understands that.”