There is no regulatory power in a municipality’s arsenal quite like zoning.
The Town of North Hempstead Town Board, troubled by the presence of two medical marijuana dispensaries within its jurisdiction—and fearing the state’s permitting of more—has moved to regulate them via that power.
At the Nov. 20 town board meeting, Supervisor Judi Bosworth and the trustees unanimously approved an amendment to the zoning code to prohibit a facility dispensing medical marijuana from selling recreational marijuana.
Town leaders expect the state, under the new Democratic legislative majority in both houses, to legalize recreational marijuana in the session starting in January.
The board will hold a second public hearing on Dec. 18 for an additional zoning amendment regarding medical marijuana. It would limit dispensaries in the town to two, and prohibit them from being within 1,000 feet of a school, park, child care center or house of worship or within 500 feet of a residential district. It would limit them to zoning districts labeled Industrial A and B, Planned Industrial Park, Modified Planned Industrial Park and Hospital.
In addition, the dispensary may be located only in a building having at least one medical office.
There will be a public hearing on Jan. 8, 2019 on a third proposed amendment to the zoning code to ban outright the retail sale of recreational marijuana in the town.
Lawyer Makes Case
Public comments at both the Oct. 25 and Nov. 20 meetings overwhelmingly favored the proposed amendments.
Kathleen Deegan Dickson of Forchelli Deegan Terrana LLP represented the two companies licensed by the state to operate dispensaries in the town, MedMen and CuraLeaf.
MedMen’s dispensary in Lake Success is already operating. Curaleaf’s in Carle Place is awaiting a certificate of occupancy from the town.
The town’s initiatives to regulate marijuana were sparked by a request from MedMen to move to a self-standing store near The Americana in Manhasset that will become available for lease in the spring.
Town leaders and many residents opposed what they saw as a naked attempt by MedMen to take advantage of pending legislation favoring recreational use to place the company in a more favorable retail location.
With the proposed amendments, Dickson stated on behalf of her clients, “One will be prevented from relocating its business and one will be immediately rendered non-conforming.”
She went on to urge the board to carefully consider the ramifications of the local laws, arguing that as written, they are both illegal and unenforceable under state law and “do nothing to ensure that the dignity and safety of the people for whom medical marijuana is prescribed—those who suffer from serious and debilitating medical conditions—are preserved.”
Under legislative intent, the town wants to ensure that “meaningful public access to these dispensaries, in order to benefit patients and caregivers, must be paramount.”
Dickson noted that the proposed regulations do not support this intent and “the limiting of the locations of these state-licensed facilities to the few industrially-zoned areas within the town in and of itself indicates an attempt to hide the use and stigmatize the users.”
Dickson studied the town’s zoning map and concluded that the number of “qualifying sites within these districts is near zero…Several of the districts are so tiny or narrowly drawn that there is no location within their borders that is outside of the restricted radius of nearby residential zones or other restricted uses.”
As far as the Industrial A and Industrial B districts, she argued that the existing uses “are not conducive to the nearby location of medical offices and medical treatment facilities.”
Dickson also criticized the requirement that dispensaries be located within buildings that already contain a doctor’s office, calling it, “an overly restrictive requirement that effectively eliminates the possibility of a dispensary being located in most of these permitted districts.”
The attorney concluded that the intent of the legislation had “the effect of zoning this use out of the town altogether, The result is that the very sick people these laws purport to protect, are denied access to this important medical treatment. ”
In a letter to the town board that she placed on the record, Dickson made her case by citing court rulings.
“[I]n seeking to regulate the location of dispensaries within the town, the town is attempting to divest the state health department of the authority to determine whether there is a community need for a new licensee in the proposed area to be served. This attempt is preempted by state law and therefore is not permissible. A right or benefit expressly given by state law cannot be curtailed or taken away by the town,” she wrote.
In her concluding remarks, Dickson stated, “While I believe your intentions are good, the result will be to limit and stigmatize access to a valuable treatment for very sick people. Fear-based, reactive legislation is almost always bad legislation. So I urge you to hold off, think it through and adopt regulations that comply with and respect the intent of the state law.”
Town board members did not respond to Dickson’s comments.