New Marijuana Regulation and Taxation Act Provides Initial Guidance for Municipalities on Land Use and Zoning

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Effective March 31, 2021, Governor Cuomo legalized adult-use of marijuana and provided for the licensure of producers, distributors, and retailers of marijuana throughout New York State. Under the Marijuana Regulation and Taxation Act, the Legislature has established the New York State Cannabis Control Board and empowered this Board to regulate the licensure and establishment of retail dispensary licenses and on-site consumption licenses.

Although municipalities are preempted from regulating the operation or licensure of registered organizations, adult-use cannabis licenses, or cannabinoid hemp licenses, towns, villages, and cities may opt-out of allowing retail dispensaries and on-site consumption licenses within their respective boundaries. A municipality cannot opt out of allowing other licensed entities within their boundaries, including those possessing a delivery, nursery, cultivator or microbusiness license. The municipality may opt-out by adopting a local law subject to a permissive referendum on or before December 31, 2021. A municipality is expressly prohibited from adopting a local law prohibiting the establishment of retail dispensary licenses and on-site consumption licenses after December 31, 2021.

If the municipality does not opt-out by December 31, 2021, the municipality may participate in the Board’s consideration of an application for licensure as an adult-use retail dispensary or registered organization adult-use cultivator processor distributor retail dispensary or an on-site consumption licensee. The law requires that the applicant notify the municipality that the applicant is seeking licensure and proposing locating the premises in the municipality 30 to 270 days before applying. The municipality may then submit an opinion to the Board, either supporting or objecting to the granting of the license. The Board must consider that municipality’s opinion when determining to grant or deny the license application.

Each municipality may also adopt laws, rules, ordinances, or regulations governing the time, place, and manner of the operation of the licensed retail dispensaries and on-site consumption sites. Any regulation may not make it unreasonable impracticable, as determined by the Board, to operate the retail dispensary or on-site consumption site.

A county, town, city or village may adopt regulations that reasonably regulate the personal cultivation and home possession of cannabis. Any penalty for violating such regulation may only constitute an infraction punishable be a civil fine not exceeding $200.00. A county, town, city or village may not prohibit or essentially prohibit a person from cultivating or possessing cannabis at home.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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