Long Island’s zoning laws continue to leave Cannabis Retail licensees in limbo
A year and a half after New York allocated its first adult-use cannabis retail licenses, over 100 storefronts have opened across the state.
Just three are on Long Island.
Previous reporting explains how restrictive zoning codes are limiting potential retail real estate in the towns of Brookhaven and Riverhead. But restrictive codes are not unique to those towns. They are Long Island-wide. And they reflect a culture, at least among elected officials, of anxiousness about marijuana’s legalization.
“This was something that went on when Prohibition ended. There was a fear that everybody was going to be drunk, beat people up, whatever,” said Bob Kern, a Town of Riverhead councilman and chairman of its business advisory committee. “I guess it’s part of the psychological evolution with change.”
Compared to New York City, Long Island has been reluctant to embrace the legal cannabis industry. Just four of the 13 towns that comprise Nassau and Suffolk counties opted-in to allowing adult-use dispensaries. Municipalities within those towns were likewise given the opportunity to opt-out. Many did.
Yet license holders are struggling to open storefronts even in areas that allow them.
Licensees, advocates, and some elected government officials say this is in large part due to zoning codes that make opening an adult-use storefront unfeasible. All four opt-in towns – Babylon, Brookhaven, Riverhead, and Southampton – adopted codes more restrictive than what state law mandates. Babylon, one of two towns along with Riverhead, where cannabis codes were relaxed, is home to all three of Long Island’s dispensaries. The other three have none.
Some elected officials are “still stuck in the mindset of reefer madness, their grandfather and grandmother’s idea of cannabis, and they’re afraid of it,” said Gahrey Ovalle, president of the Long Island Cannabis Coalition, an advocacy group for Long Island cannabis license holders. “They think it’s a drug that exactly mirrors opioids. And it doesn’t.”
State regulations establish that a cannabis dispensary cannot be on the same road within 200 feet of the entrance to a school or a public youth facility. Dispensaries also cannot be within 1,000 feet of one another in a municipality with a population of 20,000 or more.
For municipalities with a population under 20,000, dispensaries cannot be within 2,000 feet of each other.
The state further authorizes municipalities the power to adopt local laws and regulations governing the time, place, and manner of dispensaries, provided however that such local laws and regulations are not “unreasonably impracticable.”
Ovalle says that Long Island towns are running afoul of state regulations because their codes, as currently constituted, are in fact unreasonably impracticable.
“They have a bunch of extra restrictions that were totally just onerous,” he said. “We’re recognizing that there’s still a compliance issue. They are not in compliance with the state and instead, are continuing to adopt those extra restrictions that go above and beyond what the state is asking.”
One of those extra restrictions is a residential distance requirement. Babylon, for example, originally required that a dispensary be 1,000 feet from any residence. Board members of the town, especially limited in potential real estate because its largest municipalities opted out, quickly reduced that requirement to 750 feet. Long Island’s only three dispensaries have since opened.
“As we learn more as these stores get rolled out, we’ve been open to making changes to our code,” said Matthew McDonough, the special counsel for the Town of Babylon and a former Babylon village attorney. “We want these places to open. We want people to have that access.”
Ovalle “appreciates” the board’s willingness to amend its codes and the successful opening of three dispensaries. But he advocates for removing residential requirements altogether and said that the net result of Babylon’s reduction was actually a decrease in the number of available parcels – because the town went from measuring doorstep to doorstep to lot-line to lot-line.
“One step forward, two steps back,” he said.
McDonough acknowledges that there is a limit to the number of dispensaries the town is willing to allow. “We’re not looking to have cannabis row,” he said.
Besides its residential requirement, Babylon adopted distance requirements of 1,000 feet from schools and places of worship, double that of state regulations. “I think Long Island-wide, if more jurisdictions opened up, it would make things easier.”
But McDonough added that Babylon “is the only game in town” and that another four dispensaries are on track to open by the end of the year. He also says that the state regulation of 1,000 feet between dispensaries, which is much more restrictive than state distance regulations for liquor stores, signals that the state is likewise taking a cautious approach to legal cannabis.
“We’ve said from the beginning that we’re going to balance community needs with the needs of the industry,” McDonough said. “As things come down, we’re going to constantly analyze.”
In other towns, the stacking of lengthy distance requirements eliminates nearly all potential dispensary locations.
Riverhead, like Babylon, adopted a 1,000 foot residential distance requirement. It also adopted a distance requirement between dispensaries of 2,500 feet, along with a 1,000 foot requirement from schools, libraries, and daycares. Just a single parcel was available under those codes.
Ovalle says the owner of that parcel, who he personally spoke with, knew that he had a monopoly and asked for “an absurd” amount for rent. Kern, the Riverhead Councilman, corroborated that account.
“I would be more apt to follow the state code,” Kern said. “I think it was gracious of the state to say you can have time, place, and manner, on the one hand. But if you’re going to opt-in, I believe that a town should make it viable.”
Riverhead’s Town Board recently amended its codes so that its residential requirement would be dropped in specific commercial corridors. According to the town, just shy of 150 parcels became available after the change. Ovalle says in reality the number is closer to five. His coalition called the landlords of each of those newly available parcels and found that most are unwilling to rent to a cannabis business. The few that are may not be well-located or reasonably priced.
Kern believes the restrictiveness of cannabis codes reflects a fear among other officials that dispensaries will overrun the town. “I don’t think there’s a whole lot of reality based in it,” he said. “It would be lucky if six could survive without them cannibalizing each other. It would be the same as if 30 liquor stores came into Riverhead. They’re not going to survive. Thirty of anything that sells the same product won’t survive.”
Another restriction beyond state regulation some towns implemented is the relegating of cannabis dispensaries to limited zoning districts. Take Southampton.
On the surface, its cannabis codes seem the friendliest of the four towns. Southampton’s codes mirror state regulations without any significant increase in distance requirements. But the town will only allow dispensaries in highway and shopping center business districts. They are prohibited from village business and hamlet commercial districts – areas that are local commercial hubs with high foot traffic.
Liquor stores, meanwhile, are allowed in those districts.
Brookhaven zones dispensaries differently from other retail stores and imposes some of the strictest distance requirements on the island. Town codes relegate adult-use dispensaries to its light industrial district alongside businesses, like warehouses, laundromats, and nurseries, that need considerable space to operate. Other retail businesses are zoned in business districts that have greater foot traffic and more infrastructure suitable to retail storefronts.
The town has a 500 foot residential distance requirement and a one mile requirement between dispensaries. It also has a 1000 foot requirement from a list of spaces more expansive than that of the island’s other towns.
It includes: schools, places of worship, parks, playgrounds, playing facilities, libraries, hospitals, public and semi-public places of congregation, and places home to non-degree granting programs, like martial arts, dance, swim, and gymnastics. One licensee said the town denied his application because his location was too close to a batting cage.
“We are progressing methodically to fine-tune the current regulations and, if the town board concurs, we will move to enact some changes to our cannabis code as it currently stands,” said Beth Reilly, the deputy Brookhaven town attorney, in an emailed statement.
“We continue to meet with state and local officials, as well as potential cannabis shop owners, to get their input. Ultimately the decision is up to the town board, not the State of New York,” Reilly said.
Impractical zoning codes demonstrate a tension among Long Island’s opt-in towns. They are cautious about adult-use cannabis. Yet, they opted-in in the first place. Townships collect a four percent tax to be used at their discretion on all cannabis sales. Perhaps once Babylon receives its revenue, elected officials in other towns will be encouraged to amend their codes.
“We as a town can use that revenue,” Kern said. “We’re forfeiting it by stalling this.”
