A business looking to open a marijuana shop in Riverhead believes the town law regulating the locations of dispensaries is overly restrictive and has asked state regulators to decide whether it complies with the state cannabis law.
Such a finding by the state would tee up a lawsuit challenging the town’s regulations.
The request to the State Office of Cannabis Management, sent yesterday by lawyers on behalf of the business, asks for an opinion on whether the town’s cannabis zoning is “unreasonably impracticable” and in violation of the 2021 law that legalized recreational marijuana in New York.
Tink & E. Co. Inc., which according to the letter is in line for a state cannabis license, wants to open its dispensary at a former bank building on Ostrander Avenue immediately off Route 58. But the site does not comply with the town’s cannabis zoning, even after an amendment adopted by the Town Board Tuesday in an effort to make the zoning less restrictive.
The setback requirements for dispensaries in the town code are “unreasonably impracticable” because they “essentially zone away most, if not all, potential areas on which a cannabis retail or on-site consumption business could potentially operate,” Tink’s attorneys, David Holland and Andrew Schriever of the firm Prince Lobel Tye, wrote in the letter.
The town’s more stringent setback requirements are also preempted by the state’s cannabis law, the Marihuana Regulation and Taxation Act, and adopted regulations pertaining to municipal rulemaking for cannabis businesses, the letter says.
The letter was sent to the Office of Cannabis Management and the town on Tuesday, right before the Town Board was scheduled to adopt an amendment to the town’s cannabis zoning law.
“Not only would these new proposed zoning rules disrupt our client’s ability to move forward,” the letter says, “but they also would have an unreasonably impracticable impact on most, or even potentially all, retail cannabis candidates looking to locate in the area.”
Town officials said the zoning amendment, which was passed unanimously Tuesday, opens up 144 properties as eligible sites for dispensaries — 62 of which would be along Route 58. The letter calls that number “misleading.”
”[It]t is our client’s understanding that the vast majority, if not most of these 144 sites are not available for cannabis retail use, either because they are already occupied, or because owners are not interested in leasing to cannabis businesses,“ the letter says.
The location on Ostrander Avenue, which town officials last year said to the Office of Cannabis Management did not comply with town zoning, is “perfect for Riverhead,” the letter says, citing its proximity to the Route 58 commercial corridor and the fact that it’s a “highly secure” building.
The opinion requested by the attorneys would come from the Office of Cannabis Management’s governing body, the Cannabis Control Board. The opinion can then be used to challenge the validity of the zoning in court. As of two weeks ago, there have not been any “unreasonably impracticable” claims filed with the OCM, a spokesperson for the office said. An opinion on Riverhead’s zoning has the potential to set the precedent as to how municipalities can and cannot zone for dispensaries in New York State.
A spokesperson for the state Office of Cannabis Management could not immediately answer questions before this article was published, including how long it might take for the Cannabis Control Board to render an opinion.
Despite a request by Tink’s attorney Schriever to postpone changing the town’s cannabis law until the Cannabis Control Board gives its opinion, Town Board members voted unanimously to adopt the amended zoning code. Town officials said they wanted to move forward with the amendment because the town’s existing zoning effectively banned marijuana businesses throughout the town, which they said was a mistake and likely violated state law.
Town officials indicated yesterday and in prior interviews that they would stand by the amended zoning code. While town officials say the zoning amendment is fair, those in the cannabis business have said it does not ease restrictions enough and continues to be “unreasonably impracticable.”
| MORE COVERAGE: Cannabis advocates urge Riverhead to further ease its rules, but board majority is unwilling, setting stage for legal battle |
Deputy Town Attorney Annemarie Prudenti, who along with Council Member Ken Rothwell led five forums to craft the original legislation and the amendment, responded that the town has “done their due diligence” and believes the code amendment is “fair and sufficient.” Rothwell echoed Prudenti’s comments.
Martin Sendlewski of Riverhead, an architect representing Tink, said the town’s new zoning amendment does not properly comply with the requirements of the State Environmental Quality and Review Act. The law requires that a full environmental assessment form be prepared for certain government actions — known as “Type 1” actions — before the board can act. Because the zoning amendment would affect more than 25 acres of land, Sendlewski said, the town’s classification of the action as “unlisted,” and the limited environmental review associated with that classification, is incorrect.
Prudenti dismissed Sendlewski’s concerns. She said Senior Planner Matt Charters did the environmental review for the law and that she is “confident” in his review.
Council Member Denise Merrifield said before casting her vote in favor of the legislation that it strikes a “good balance” between the interests of the residents and prospective business owners. She said a lot of effort and time was put into the legislation.
She said she has concerns of the impacts of recreational marijuana on traffic, the town’s youth and local crime. “I myself, as a former assistant district attorney for 30 years in my personal background, I have seen cannabis as a gateway drug for individuals to much higher drug abuse and addiction addiction,” Merrifield said. “However, I am aware that it’s not my personal view that applies here, it is the residents of this town.”
Merrifield said she is concerned that the town does not have a drug recognition expert — a police officer specialized in recognizing the impairment in drivers under the influence of drugs. She has asked the police department to get officers certified to be drug recognition experts.
She also said the legislation will “protect cannabis dealers” and the town from illegal shops opening.
“I really see this legislation more as a correction of the course,” Rothwell said before his vote. “I do not want the state of New York coming in here and I want to maintain my hometown rule to decide — that we get to decide as a local municipality — time, place of matter.”
The cannabis zoning amendment allows dispensaries within 1,000 feet of residential uses for sites with frontage along one of the town’s five commercial corridors. The commercial corridors are essentially the town’s business corridors, with the exception of downtown Riverhead, where marijuana dispensaries and lounges are banned altogether. Each corridor can have one dispensary, with the exception of Route 58, which has no limit as to number but requires a minimum distance of 2,500 feet between dispensaries.
Dispensaries would still need to meet other distance restrictions in the code, including a minimum of 1,000 feet from schools, libraries or day-care facilities, and 500 feet from houses of worship, town beaches, playgrounds and community centers, and children’s amusement parks. Any sites that don’t have frontage on commercial corridors will still need to meet the 1,000 foot minimum distance from residential uses. The town’s distance restrictions are measured using lot lines, which licensees have said have eliminates many shopping centers from being viable locations.
The town’s zoning is significantly more stringent than state law and regulations, which prohibit recreational marijuana dispensaries from being within 500 feet from a school, 500 feet from a public youth facility and 200 feet from a house of worship. Those are measured from the entrance of the building and only if they are located on the same road.
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