3 Long Island towns sue New York State over control of marijuana dispensaries

Three Long Island towns are suing New York State in an effort to keep local control over zoning rules and other guidelines for marijuana dispensaries.  

The lawsuit also seeks to nullify the authority of the Cannabis Control Board — the state regulators for the marijuana industry — to issue advisory opinions that can be used in court to challenge the legality of restrictive town zoning laws.

The towns and boards of Riverhead, Southampton and Brookhaven filed suit against New York State, the Cannabis Control Board and the Office of Cannabis Management in Albany County Supreme Court.

“Our understanding is that we would maintain home-rule control over the zoning, that we could regulate the time, place and manner of the dispensaries — and now we're being told that's not the case,” Southampton Supervisor Maria Moore said in an interview.

The state Attorney General’s Office did not return a request for comment on the lawsuit. The Office of Cannabis Management does not comment on pending litigation, a spokesperson said. The defendants have yet to submit an answer to the towns’ complaint, which was filed Feb. 6.

'Unreasonably impracticable'

In October, the CCB ruled Riverhead and Southampton’s cannabis ordinances “unreasonably impracticable” and "forbidden" under state law after four dispensary businesses whose plans were stymied by town laws filed grievances. 

Dispensaries in Southampton must obtain a special permit and are limited to only two of the town's eight commercial business districts, while Riverhead requires dispensaries be at least 1,000 feet from schools — double the state requirement.

The CCB is considering one "unreasonably impracticable" request by a dispensary business in Brookhaven Town. 

Those opinions are “arbitrary,” the lawsuit says, because the State Legislature did not provide any standards for the CCB to make its determination.

The CCB also relied only on information from the cannabis licensees, which “unfairly denied” the towns an opportunity to present contrary information and arguments, the lawsuit says.

The lawsuit seeks to invalidate those CCB opinions and asks the court to strike down the section of state law that allows the CCB to deem local laws “unreasonably impracticable.”

The towns also ask the court to nullify state regulations that imposed distance buffers between dispensaries and various other places including schools and houses of worship. Those regulations say that the state's buffers preempt, or supersede, more restrictive local cannabis ordinances.

“Nothing in the Cannabis Law authorizes either the CCB or the OCM to define such time, place, or manner restrictions and limitations or to impose them on local municipalities,” the towns’ complaint says.

Several cannabis licensees in Riverhead and Southampton were denied permissions to open due to strict distance requirements from schools, churches and other places. 

Calls to check town guidelines

Sean Lustberg, whose attempt to open a dispensary in Hampton Bays has been stifled by Southampton’s zoning for two years, said in an interview that the “unreasonably impracticable” process is a necessary check on town restrictions. His business, Mottz Only Authentic New York Style, used the CCB’s decision to help win its lawsuit against Southampton Town in Suffolk County Supreme Court. The town has appealed that court decision, and Lustberg's dispensary has not been given permission to open.

“I definitely think it's important that they put that process in place for licensees to be able to kind of challenge what the town is saying,” Lustberg said. “There are a lot of municipalities in Long Island that have kind of put extra restrictions on top of what the state law is.”

In Brookhaven Town, dispensaries are limited to industrial areas. Simply Green in Coram, which opened in a downtown-style business zone on Nov. 7, has asked the CCB for an opinion on Brookhaven's zoning law, Newsday previously reported. That store is not mentioned in the complaint. 

Simply Green co-owner Fred Wightman said he is talking with Brookhaven officials to obtain the permits necessary to remain open, despite the dispensary not being in an industrial area. 

Brookhaven Supervisor Dan Panico said the town joined the suit to protect its zoning laws.

"It is almost impossible to be a partner with New York State because they do not act in an above-board fashion and continually demonstrate disdain for the values of the people of Long Island," Panico said in a text.  

The towns’ complaint said town lawmakers did not opt out of allowing cannabis sales because they believed they had the authority to regulate the operation and location of cannabis businesses under the Marihuana Regulation and Taxation Act, the 2021 law that legalized recreational marijuana statewide. The towns adopted their laws months or years before state regulations were adopted, the lawsuit says.

Riverhead, Brookhaven and Southampton are among the four towns on Long Island that decided to allow dispensaries. Babylon, the other town to allow cannabis sales, is not a party in the lawsuit. Dispensaries on Native American reservations are not subject to state regulations.

Southampton and Riverhead have not changed their zoning rules for cannabis businesses as a result of the lawsuits or CCB opinions. The towns have permitted dispensaries to open in a few zoning-compliant areas. 

Newsday's Carl MacGowan contributed to this story.