Riverhead and two other towns sue state over cannabis rules and local control

Riverhead, Southampton and Brookhaven have sued the state, claiming state cannabis regulators are illegally trying to override local zoning rules that limit where retail cannabis shops can locate.

The towns are asking a judge to throw out two state Cannabis Control Board advisory opinions and to declare parts of the state Cannabis Law and cannabis regulations invalid.

The towns filed the lawsuit late Friday afternoon in State Supreme Court in Albany County. It names as defendants the State of New York, the State Cannabis Control Board and the State Office of Cannabis Management. The lawsuit was first reported Friday by the Southampton Press.

The State Cannabis Control Board in an advisory opinion issued Oct. 6 said that Riverhead’s zoning code goes beyond the “time, place and manner” restrictions allowed by the state’s Cannabis Law and contradicts the provisions of the state law.

In a separate advisory opinion, the Cannabis Control Board concluded that Southampton Town’s code restrictions also go beyond the “time, place and manner” restrictions allowed by the Cannabis Law. 

The board determined that both towns’ zoning code restrictions are “unreasonably impracticable” and pre-empted by the Cannabis Law.

The opinions align with two prior decisions issued by a Suffolk Supreme Court judge last year in lawsuits brought against Riverhead by two state-licensed dispensaries whose state-approved locations were rejected by the Riverhead Zoning Board of Appeals. One of the decisions has been appealed by the town, which obtained a stay of enforcement from the appellate division pending the outcome. 

The lawsuit grows out of the towns’ efforts to use its zoning power to control where state-licensed cannabis businesses can locate — and the state’s position that some of those limits go beyond what the Cannabis Law allows. For prior coverage, see the Cannabis topic page.

At the center of the dispute is a section of the Cannabis Law that preempts municipalities from adopting any law or regulation pertaining to the operation or licensure of a cannabis dispensary or on-site consumption lounge, except for “time, place and manner” rules, such as limits on locations or operating conditions. But it also says local rules cannot make siting or operating a legal cannabis business “unreasonably impracticable.”

Regulations adopted by the Office of Cannabis Management spell out what the agency calls “permissible time, place and manner restrictions” a municipality may impose. State regulators say towns have no power to create additional or expanded restrictions because state law preempts anything beyond those “permissible” limits.

The towns argue in the lawsuit that the Office of Cannabis Management had no authority to adopt the regulations and that the rules should be annulled. The Cannabis Law expressly bars the Cannabis Control Board from delegating its rulemaking authority to the Office of Cannabis Management, the towns argue.

The towns also argue that the law does not grant authority to either the Cannabis Control Board or the Office of Cannabis Management to define which municipal regulations are prohibited and which are permissible. The only limit on a town’s ability to regulate the “time, place and manner” of a licensee’s operations, they argue, is that local rules cannot make operations “unreasonably impracticable” — and the law does not define that standard.

The lawsuit asks the court to declare the “unreasonably impracticable” clause in the law invalid to the extent it gives the cannabis board broad power to decide when a local law goes too far, arguing the Legislature did not set sufficient standards for that decision-making.  

The complaint was filed on behalf of the towns by John Wagner of the law firm of Certilman Balin Adler & Hyman

The Riverhead Town Board on Oct. 21 authorized the town attorney to retain Wagner to file the action.