Company sues Babylon Town for not approving Deer Park cannabis dispensary

A company seeking to open a cannabis dispensary in Deer Park is suing the Town of Babylon over its lack of approvals, claiming the business already meets state cannabis law requirements.

MRM Ventures LLC last month filed an Article 78 lawsuit against the town and its zoning board of appeals after the board failed to render a decision on a variance and special permit for the business. An Article 78 is a legal action used to challenge state and local government decisions.

MRM last year submitted an application to the town to open a dispensary at 786 Grand Blvd. in Deer Park. The dispensary would take over a vacant spot that has had a certificate of occupancy for retail use since 1988 in a 10-unit strip mall that is zoned industrial, according to MRM’s attorney, Joseph Buzzell.

The town currently has four operating cannabis dispensaries: three in East Farmingdale and one in Deer Park. Another 15 proposals for marijuana businesses are under “active review,” according to town spokesman Ryan Bonner.

State cannabis law dictates many of the parameters for recreational cannabis businesses but allows for local control over some aspects, such as hours of operation.

Under Babylon Town code, a cannabis business can only be located in industrial-zoned areas and must apply for a special use permit from the town zoning board.

The issue of distance

In addition to other distance requirements, such as from playgrounds and parks, the town code states that such businesses cannot be located within a 750-foot radius of residential properties, which the town measures from lot line to lot line. Under these measurements, the proposed dispensary site for MRM would be 460 feet from the Quail Run gated condominium complex in Deer Park, according to the town.

The zoning board held a public hearing in January on a special use permit and variance for the distance requirement, at which Buzzell argued that under the state’s recreational cannabis business laws, there are no regulations for distance from residential areas.

In addition, he said, with the dispensary distancing requirements that are in place under state law, such as from schools and houses of worship, distance is measured entrance to entrance. Using that method, the front door of the proposed dispensary site to the front doors of the condos measures 705 feet, Buzzell told the board, with fencing, landscaping buffers and other industrial properties in between.

“We see no harm to the community,” Buzzell told the board. “The condominium is all the way on the other side of other properties ... nobody is going to wander into the condo accidentally and the condo can’t even see this place.”

More than a half-dozen residents of the condo community spoke at the hearing asking for the application to be rejected, citing traffic concerns and worries about marijuana use. No one spoke in favor.  

Resident John Allan noted that the existing marijuana business in Deer Park is less than a mile away.

“Deer Park and that area do not need another cannabis dispensary,” he told the board. “The traffic in that area cannot handle the volume that is going to be inundated in that area.”

Buzzell told the board that the dispensary is a “retail business going into a retail building,” noting the other strip mall tenants include takeout restaurants, a car rental business and an adult products store.

State law vs. local law

The lawsuit alleges that because the town’s zoning board failed to vote on MRM’s application within 62 days, under the state's laws on town rules, the indecision defaults to a rejection. It further states that the business meets all state cannabis law requirements and that state law trumps local law.

“The provisions of the Babylon Town Zoning Code concerning the sale of Cannabis are preempted by New York State Law,” the lawsuit states, adding MRM is “entitled to apply for a building permit for its interior alterations and, after demonstrating compliance with New York State Building Code, obtain that building permit.”

The town has yet to respond to the lawsuit. Bonner declined to comment to Newsday on it. 

Buzzell told Newsday that Babylon’s distancing requirement “really makes no sense” in this instance due to the properties and buffers between the proposed dispensary and the residential neighborhood. In the lawsuit, he cites numerous residential properties near existing dispensaries in the town, some as close as 285 feet, where variances were not required.

Buzzell points to two advisory opinions issued by the state’s Cannabis Control Board in October in response to grievances filed by dispensaries looking to open in Riverhead and Southampton. In those opinions, the board said those towns’ regulations are “unreasonably impracticable" and were in violation of state law.

“The state has said you can’t add another level of discretionary decision-making as to whether a store is allowed,” Buzzell told Newsday. “If the state approves a store, the store is allowed.”

In February, the towns of Brookhaven, Riverhead and Southampton filed a lawsuit against the state, the Cannabis Control Board and the Office of Cannabis Management in an effort to gain more control over zoning and other local requirements on where marijuana retail businesses can be located.

By Denise M. Bonilla

denise.bonilla@newsday.comdenisebonilla

Denise Bonilla has worked at Newsday since 2003 and covers the Town of Babylon, including the villages of Lindenhurst and Amityville.