Will your town sell weed? Why some NY municipalities will opt out of marijuana law

Local governments face a Dec. 31 deadline to opt in or opt out of allowing recreational marijuana retail dispensaries and cannabis lounges within their borders

Chris Potter
Elmira Star-Gazette

The Wellsville village board huddled together last week to come up with a gameplan as the clock winds down.

The scene is being repeated all over New York state as local governments face a Dec. 31 deadline to opt in or opt out of allowing recreational marijuana retail dispensaries and cannabis lounges within their borders.

“I’m ready to vote on it right now,” said Wellsville trustee Mike Roeske. “It’s a no-brainer. We don’t have enough information, so we have no choice but to opt out.”

Roeske isn’t alone in that reasoning.

The state is giving cities, towns and villages this one chance to prevent dispensaries and consumption sites from locating in their communities. Once local officials give the OK, the policy is locked in place regardless of any future changes to public opinion. If a municipality opts out by Dec. 31, though, it can revisit the policy and opt in down the line at a time of its choosing.

While marijuana won't legally be sold in New York until 2022, the drug can be smoked in many public spaces, and was featured at the Finger Lakes Music, Comedy and Cannabis Festival in Spencer on Sept. 25.

That dichotomy, coupled with state guidance that is still in flux, has many elected officials thinking the only prudent decision is to opt out now and reevaluate later.

“There isn’t enough information out there for us to make a permanent decision,” said Wellsville mayor Randy Shayler. “Opting out could be temporary, opting in is a permanent decision that can’t be removed. We may find that on Jan. 2 or Dec. 15 we want to opt in, but at this point we need to opt out.”

Elsewhere in the Southern Tier, the town of Big Flats has been debating the merits of opting in or opting out for the last few months. The town held an informational meeting for the public this month attended by just under 40 residents. Town Supervisor Ed Fairbrother said the crowd’s opinion was split 50/50. The town continues to solicit public input as it works toward a decision.

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“As much as we reached out, we did not get the retailers in to comment, which was disappointing,” said Fairbrother. “This affects them more than it does residential because we won’t be putting (dispensaries and lounges) in a residential area. It will be zoned into retail commercial areas.”

In Steuben County, District Attorney Brooks Baker, Sheriff Jim Allard and Hilda Lando of the Steuben Prevention Coalition have been visiting local governments to offer their insight into the matter.

"Opting out is the safe course," Baker told the Hornell Common Council this week. "It gives you time to think, kind of see what this (Cannabis Control Board) does with what the legislation looks like, and also watch what happens on the news with these centers and decide is it right for our community? The only way to get that time to make an informed decision is to opt out."

That message has been well-received in parts of Steuben County. Lando said Riverside, Addison, Painted Post, Urbana and Hammondsport are all leaning towards opting out, while Corning was more receptive to opting in. The Village of Canisteo plans to formally opt out at its November meeting.

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Local decisions slowed by state delays

The local decision-making process has been slowed by delays at the state level. The state’s new five-person Cannabis Control Board, charged with interpreting and shaping the Marijuana Regulation and Taxation Act, met for the first time this month.

Local officials are wary of opting into the marijuana legislation until state policy is settled.

“The i’s aren’t dotted and the t’s aren’t crossed,” said Fairbrother. “The state still has a lot of stuff to do.”

State Sen. George Borrello, a Chautauqua County Republican who also represents Allegany County and southern Livingston County, said more municipalities are considering opting out because they have not seen sufficient marijuana regulations from the board, which has been delayed by at least six months.

In the meantime, Borrello said misinformation and fraud have spread as result.

Steuben County District Attorney Brooks Baker addresses the Hornell Common Council Monday night on the merits of opting out of cannabis dispensaries and lounges before the state deadline of Dec. 31.

"So, you're asking these municipalities to make a decision with zero information from state government as to what the landscape will be," said Borrello, who has not been a supporter of New York's effort to legalize recreational marijuana. "Therefore, how do you expect these municipalities to stick to the same timeline when New York state is at least six months behind?"

And because of that delay, Borrello has sponsored legislation to extend the period that cities can opt out to Dec. 31, 2022.  

The uncertainty has left some key questions unanswered as elected officials weigh their decisions. Baker said the state may limit marijuana licenses to one per 50,000 residents, while Lando speculated the price of a license may preclude local startups in Steuben County from entering the legal marijuana business. The Cannabis Control Board will decide state policy, though the timeline remains undetermined.

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"Regardless of what you think about marijuana, the process itself was really backwards," said Hornell Mayor John Buckley, noting that the legislation was passed long before the Cannabis Control Board was in place.

"The way they rolled it out didn’t give communities a lot of time to really absorb it and think about it. There’s a lot to consider. Obviously we’re on the clock."

Growers will also face a time crunch. Cannabis sold in New York state must be grown in the state due to federal restrictions. Many observers expect New York won't see retail sales of recreational marijuana until the latter half of 2022, at the earliest.

Revenue, other factors impact local policy

While most Southern Tier municipalities have yet to vote on opting out, a few have taken steps to address marijuana use in public spaces. The City of Hornell in Steuben County and the Village of Johnson City in Broome County both formally added marijuana to the list of substances banned from public parks in an effort to reduce secondhand smoke inhalation.

Fairbrother said Big Flats would like similar local guidelines and zoning in place ahead of any consideration to opt in. Opting out would allow municipal governments the time to prepare other local laws associated with marijuana use before possibly opting in to consumption sites and dispensaries at a later date.

"Those things take a lot of thought and consideration," Buckley said of changes to city zoning.

Wellsville Mayor Randy Shayler, second from left, talks about marijuana policy with the village board.

Elected officials are also considering the intentions of neighboring municipalities. If the Town of Wellsville welcomes dispensaries and consumption sites, as it has indicated, does it make sense for the village to take the opposite approach? Johnson City Mayor Greg Deemie asked a similar question when weighing his village’s approach with neighboring Binghamton likely to opt in.

“If you look at it, it’s a lot of revenue to throw away. It’s going to happen any way you look at it,” said Deemie. “It’s going to be up to the board on what they want to do.” 

Some areas are taking a regional approach. The City of Hornell has consulted with neighboring Hornellsville, North Hornell and Canisteo, all of which are likely to opt out in a united front before Dec. 31.

Opting out may come with a financial cost. That state has indicated marijuana sales will be taxed at a rate of around 13%, with 9% going to the state, 3% to the city, town or village where the sale is made and 1% to the county.

Fairbrother, however, said economics would not factor into the town’s decision.

“If Corning, Horseheads, Elmira and everybody opts in, it’s going to be sold all around us. As far as our decision, we’re not even considering revenue and what it will bring into the town in our decision,” said Fairbrother. “We’re trying to do as much research as we can to give the board everything they need to make a sound decision.”

Fairbrother expects the Big Flats board to continue weighing the pros and cons this fall, with no vote expected until its first December meeting.

“I couldn’t tell you right now how the board is going to vote,” said Fairbrother. “Whether they’ll opt in or out is really hard to say. We want to make sure we do what’s best for the citizens of Big Flats and protect them going forward.”

With reporting by Tiffany Cusaac-Smith, who covers race and justice for the USA TODAY Network of New York

Chris Potter can be reached at cpotter@gannett.com or on Twitter @ChrisPotter413. To get unlimited access to the latest news, please subscribe or activate your digital account today.