Introducing the Marijuana Opt-Out Tracker

By Heather Trela

The end of the year brings a looming deadline for municipalities in New York State. When the Marijuana Regulation & Taxation Act (MRTA) legalized adult-use/recreational marijuana earlier this year, one of its provisions permitted towns, cities, and villages the opportunity to opt out of the state issuing licenses for marijuana dispensaries and/or on-site consumption lounges within their jurisdiction. Municipalities have until December 31, 2021 to exert their option to opt out of either or both of these two marijuana retail businesses; failure to act before this cutoff date automatically enters a municipality into the retail market, though does not guarantee a dispensary and/or consumption lounge will be located within their borders. To opt out, a municipality needs to pass a local law before the end of the year that exerts their authority under MRTA to prohibit said cannabis establishments. These local laws are subject to permissive referendum, meaning that if the residents in a municipality disagree with the decision of their town, city, or village to opt out, they can gather signatures to trigger a special election to let the voters decide whether to override the opt-out.

Municipalities that opt out before the end of the year can change their mind at any time and rejoin the marijuana retail market, but any town, city, or village that initially permits dispensaries and/or consumption lounges cannot change their mind after the deadline. Under current law, once a municipality is in, they are in permanently. Those municipalities that choose to not opt out can still use zoning and other reasonable time, place, and manner restrictions to regulate where dispensaries and/or consumption lounges are located.

The Rockefeller Institute has been monitoring the opt-out decision-making process of towns, villages, and cities across the state for the last few months, reviewing the meeting minutes of local governing boards, newspaper articles, legal notices for public hearings and passage of local laws, submissions of local laws to the Department of State, and reaching out to municipalities directly. The result is our newly launched the Marijuana Opt-Out Tracker to track the status of the opt-out process as it is happening. The tracker is sortable by individual municipality, the decision to opt out of dispensaries, and the decision to opt out of on-site consumption.

The searchable database is a work in progress and will be continually updated over the next month as the December 31st deadline approaches and more municipalities make their final decision. It is important to note that since the default position is that municipalities will permit dispensaries and consumption lounges, no action is required on their part unless they elect to opt out. However, with time still left to make a decision, municipalities in the database are only indicated to be opting in if they have made a statement indicating that is their plan of action. In the absence of some definitive statement, the municipalities that have not taken any action will not be categorized as permitting consumption sites and/or dispensaries until after the end of the year deadline. A number of municipalities have scheduled public hearings and/or votes on this issue for the month of December. That information is also reflected in the database.

One of the reasons that the Institute decided to build this tracking system is because of the absence of another publically facing resource from the state or municipal organizations. It is, however, a tremendously labor intensive process to maintain and necessitates verifying information from over 1,500 municipalities across the state. Therefore, there may be a lag in reflecting the status of the opt-out decision-making. Our goal is to present the most up-to-date and reliable information as possible.

Some additional caveats—the counties that comprise New York City—Bronx, Kings, New York, Queens, and Richmond—were excluded from this analysis. The dates listed indicate when a municipality opted out and reflect the day that local law was passed by the respective municipality’s board. Some of the municipalities that have opted out are still subject to the window for a permissive referendum and voters could override the decision.

Moreover, while the December 31st deadline serves as a cutoff, it is not the end of the decision-making process. As many municipalities have cited the lack of guidance from the New York State Office of Cannabis Management as a consideration in their decision to opt out, additional information from the state may change their calculus and some cities, towns, and villages may reverse course in the future. The Institute will continue to update the database to reflect any such changes. Any municipality that would like to update their information in the tracker can contact the Institute at [email protected].

The author extends her gratitude to Tess Brennan and Shira Silverstein for their contributions to the creation and updating of this database.