Riverhead’s key cannabis code restrictions are pre-empted by state law, a Suffolk judge and state regulators agree

Key provisions of Riverhead Town’s cannabis code, as well as the town’s proposed moratorium on accepting applications from cannabis businesses, are “unreasonably impracticable” and preempted by state law, the State Office of Cannabis Management said in an advisory opinion issued last week.

The advisory opinion was requested by two state cannabis dispensary licensees whose chosen, state-approved locations were rejected by the Riverhead Zoning Board of Appeals. 

Both companies, Tink & E. Co and Stark Enterprises, also brought lawsuits seeking to have the ZBA decisions set aside. A Suffolk County Supreme Court judge has ruled in favor of the cannabis licensees in both lawsuits, finding that certain of the town’s cannabis code restrictions were preempted by the State Cannabis Code and therefore void.

The Oct. 6 Office of Cannabis Management opinion squares with the conclusions of Supreme Court Justice Paul Hensley in both of the lawsuits. The court decided the Tink & E. Co. lawsuit in July and the Stark Enterprises lawsuit on Sept. 24.

“The power of local governments to enact laws is subject to the fundamental limitation of the preemption doctrine,’ Hensley wrote in the Stark Enterprises decision.  “State preemption occurs in one of two ways-first when a local government adopts a law that directly conflicts with a New York State statute and second, when a local government legislates in a field for which the State legislature has assumed full responsibility,” he wrote.

The State Cannabis Law and regulations allow only “time place and manner restrictions,” which are limited to hours of operation, visual or architectural integrity if a cannabis business’ location is in a historic district, parking, traffic control, odor, noise and distance requirements “provided that such distance is no greater than 500 feet…” Hensley wrote.

“Accordingly, it is the State of New York which regulates this industry, not the Town of Riverhead,” the judge ruled.

Riverhead’s code goes beyond the “time, place and manner” restrictions allowed by State Cannabis Law or contradict the provisions of the state law, both the court and the OCM advisory opinion states.  

Riverhead Town Code doubled the minimum distance state law requires from any school, library or day care facility — from 500 feet to 1,000 feet. The town code also expanded the buffer distances from houses of worship and other cannabis businesses beyond what the state law says and added a buffer distance from residential uses  — something that is not found in the state law or state regulations. Another town code provision requiring a 300-foot buffer from any town beach, playground, community center or place of children’s amusement is unreasonably impracticable for the same reason, the State Office of Cannabis Management said in the advisory opinion.

There are other problems with the town’s cannabis code, according to the advisory opinion. A code amendment enacted in July put a 90-day limit on the effectiveness of a municipal opinion issued under the State Cannabis Law. It also mandated a favorable municipal opinion before any land-use application, such as an application for site plan approval or building permit. Both of these requirements exceed the town’s authority, the opinion states.

The code amendment “seeks to override the CCB’s [Cannabis Control Board’s]  ultimate authority to set the terms of licensure,” the OCM opinion states. 

“This amendment plainly attempts to give the Town Board veto authority over applicants it disapproves of and invents a requirement that the Town must issue a positive opinion for the licensee to secure the permits necessary to open,” OCM said. It conflicts with the Cannabis Law and  is outside the scope of permissible “time, place and manner” restrictions allowed by the state law and regulations.

The proposed one-year moratorium is also improper and unreasonably impracticable, the advisory opinion states. “If restrictions on the ability of cannabis businesses to operate—such as increases in distance buffers from other businesses or residential areas—are unreasonably impracticable because they are not within the enumerated time, place, and manner restrictions … or are contrary to the Cannabis Law, it follows … that a complete shut-down of the issuance of permits for any cannabis businesses is also improper,” the advisory opinion states.

Riverhead Town filed a notice of appeal in the Tink & E. Co. case, but has not yet filed its brief on appeal. 

Justice Hensley, in his Stark Enterprises decision last month, ruled that since Riverhead’s buffer requirements for cannabis businesses are “invalid as a matter of law,” no variance is required and the applicant may proceed directly to obtain a building permit and certificate of occupancy. 

He also ruled that New York State Town Law §262 requires town code to treat owners of property within a zoning district “alike and without discrimination.” Riverhead’s cannabis code, which treats retail businesses differently if they are located in one of the “cannabis corridors” within a zoning district, violates the uniformity requirement of that provision of state law, Hensley wrote.

Southampton Town’s zoning code requirements for cannabis businesses have been deemed unreasonably impracticable by the Office of Cannabis Management as well. 

Today, the Southampton Town Board at its regular meeting authorized a lawsuit against the Office of Cannabis Management, the Cannabis Control Board  and the State of New York. The board voted to retain John Wagner of the law firm Certilman Balin Adler & Hyman to represent the town in the action. Wagner also represented Riverhead Town in the Stark Enterprises lawsuit. 

Southampton Town officials say the interpretation by state regulators is drastically different from the “spirit” of the Cannabis Law adopted in 2021 and that the regulations, as now being applied, violate the town’s home rule rights.

““We think that since the regulations that have come out have substantially changed from what was originally proposed by the state, that we should be entitled to opt-out going forward,” Southampton Supervisor Maria Moore told the Southampton Press.  Under the Cannabis Law passed by the State Legislature in 2021, municipalities had until Dec. 31, 2021 to opt-out of retail cannabis sales within their boundaries. 

Riverhead has not yet taken any formal action to challenge the OCM advisory opinion, though last Thursday’s work session had an executive session discussion item on the agenda concerning “potential litigation between the Town of Riverhead and the NYS Office of Cannabis Management.”

Riverhead Supervisor TIm Hubbard said today, “We are happy to partner with our friends in Southampton to fight the Cannabis Control Board’s overreach of its legislative mandate.”

Hubbard, who as a council member cast one of three votes on the Town Board against opting out of cannabis sales in RIverhead, recently said he would have supported opting out if he’d known how the Cannabis Control Board’s interpretation of the law would restrict the town’s ability to regulate land use. Then-Supervisor Yvette Aguiar and Council Member Ken Rothwell  voted to opt-out, but Hubbard and former council members James Wooten and Catherine Kent voted no on the opt-out resolution, which failed to pass in the 3-2 vote.

Michael Wright/Southampton Press contributed reporting.