October 06, 2025 By Michael McQueeny
As most new retailers recognize, getting through the host of municipal approvals is of paramount importance to operationalizing your cannabis businesses; or even in finding a suitable location to site your business in the first instance.
At the October 6, 2025 meeting of the Cannabis Control Board (“CCB”), the CCB adopted two advisory opinions, one related to municipal ordinances in Riverhead (Advisory Opinion 2025-01), and the other in Southampton (Advisory Opinion 2025-02) (collectively, the “Advisory Opinions”), both of which provide an early insight into the manner in which the CCB and Office of Cannabis Management (“OCM”) interpret municipal ordinances, as well as their analysis for when municipal ordinances become “unreasonably impracticable,” i.e., when such laws discriminate against or frustrate the registrant, license, or permittee’s ability to carry out the operation of cannabis licenses.
Municipal Rulemaking and Advisory Opinions
By way of brief background, while municipalities cannot adopt laws “pertaining to the operation or licensure” of adult-use cannabis businesses, they may adopt limited “time, place, and manner” (“TPM”) rules for retail dispensaries and on-site consumption lounges, provided those laws do not make operations “unreasonably impracticable.” Specifically, the CCB identified the scope of permissible TPM rules under Section 119.2 of its existing regulations, including as it related to:
Retail hours of operation.
Visual or architectural integrity of the building if located within historic districts.
Parking.
Traffic control, including but not limited to pedestrian or vehicular traffic.
Odor, pursuant to Article 13-E of the Public Health and the Clean Indoor Air Act.
Distance requirements between a retail dispensary and a “public youth facility,” provided that the distance requirement is no greater than 500 feet from the retail dispensary.
While most municipalities understood that the above-referenced examples constituted some scope of permissible local regulation, many municipalities nevertheless sought to impose additional time, place, and manner restrictions that went beyond the limited categories identified under Section 119.2.
Moreover, the existing regulations, and specifically Section 119.5, discussed the role of CCB and OCM in analyzing this municipal rulemaking. Specifically, Section 119.5 identifies that “no local law, rules, or action of the municipality shall be effective or enforceable if such action otherwise impedes on duties and obligations of the [CCB] under the Cannabis Law, or violates any provisions of the Cannabis Law.” Given the grey areas existing between clearly permissible TPM rules and the vast scope of broader municipal regulations; applicants, registrants, licensees, and/or permittees may request an advisory opinion from the OCM contesting the validity of such local laws or regulations, to which OCM may issue an advisory opinion as to whether the law is unreasonably impracticable. Where the local law is adopted prior to the issuance of the advisory opinion, the advisory opinion shall be presumptive evidence that the local law violates Subdivision 2 of Section 131 of the Cannabis Law. Where a local law is merely proposed, and not adopted, then the municipality shall be preempted from adopting the local law.
Advisory Opinions and What the CCB Struck Down
OCM and CCB were presented with two (2) different municipal ordinances, which identified several different TPM restrictions.
Riverhead
For instance, Riverhead’s ordinance included certain expanded distance buffers, including:
1,000 feet from schools, libraries, day care; 500 feet from beaches, playgrounds, “community centers,” children’s amusements; 2,500 feet between cannabis businesses;
1,000 feet from residential uses;
Categorical bans in mixed-use buildings.
The CCB held these are outside the enumerated TPM categories and conflict with state-set distances, making them unreasonably impracticable.
Riverhead also imposed a municipal opinion restriction, requiring a 90-day expiration and a requirement to secure a favorable local opinion before filing any required land-use applications. The CCB found these requirements to conflict with Cannabis Law § 76, which states that municipal opinions are advisory only, and provided Riverhead with an improper local veto power over cannabis applicants.
Riverhead had also imposed a one-year moratorium on permits, which the CCB also found objectionable. The CCB stated that a blanket pause on processing cannabis applications is inconsistent with § 131(2) and Part 119, i.e., if narrower location limits are impermissible, a total shutdown plainly is also impermissible.
Southampton
With respect to Southampton, the CCB assessed certain special exception uses and fees imposed on applicants. Southampton identified all “non-medical cannabis dispensaries” as “special exception uses,” subjecting those applicants to additional conditions set by the Southampton Planning Board, a special review process, and payment of a special fee. The ordinance also limited dispensaries to only two (2) of eight (8) business districts, while similar businesses like liquor stores can operate more broadly.
The CCB referenced the TPM rules promulgated by CCB referenced previously, and stated that “[i]f a local law restricting the time, place, and manner of operations does not fall within one of the actions enumerated [under Section 119.2(a)], then it is not a permissible time, place, and manner restriction and is, therefore, pre-empted and prohibited under the Class Law Section 131(2). The CCB also noted that municipalities are prohibited from “imposing a special fee that is specific to cannabis businesses or the licensee that intends to operate within the jurisdiction of the municipality.”
Moreover, by limiting the location of such businesses to two (2) of the eight (8) business district zones (while permitting other regulated businesses to operate in broader zoning districts), doing so “is not among the enumerated time, place, and manner restrictions” permitted by CCB’s rules.
Finally, imposing operational and design mandates also exceed the authority provided to municipalities under TPM rules. This includes: lot size and transitional yards, architectural and interior layout reviews outside historic districts, drive-thru bans, signage limits, security specifications, licensure posting and certificate-of-occupancy preconditions. The CCB found that all of these additional municipal restrictions either duplicate or conflict with CCB rules and fall outside Section 119.2.
Key Takeaways On the Scope of Municipal Oversight under the Advisory Opinions
The key takeaway is that CCB now interprets municipal oversight in an extremely limited fashion, or, said differently, interprets what constitutes “unreasonably impracticable” TPM rules broadly, including by finding:
If it’s not in Section 119.2, assume it’s off limits, as municipal TPM controls must fit squarely within the enumerated categories.
No re-engineering of state distances – municipalities cannot expand buffers from schools, houses of worship, or between dispensaries, or invent new buffers from residences or private facilities.
No parallel licensing, vetoes, or moratoriums on local license approvals – towns cannot condition local permits on favorable municipal opinions, impose expiration windows on state processes, pause cannabis permitting, or create cannabis-specific fees or permits.
Municipalities cannot attempt to regulate what the CCB clearly regulates, including signage, security, license posting, application sequencing, and delivery.
Definitions must match CCB’s – if a municipality uses a term allowed by Section 119.2 (i.e., “public youth facility”), it must track the CCB’s definition.
Broader Impact of the Advisory Opinions
The Advisory Opinions will have a broad sweeping impact on the marketplace, including:
They implement clear preemption – the CCB is using its advisory-opinion authority under 9 NYCRR 119.5 to police the line between legitimate local TPM and unlawful local licensure/operation controls.
They establish practical guardrails – municipalities now have a clear checklist of what they can and cannot do; businesses have a roadmap to challenge overreach early.
They reduce uncertainty and delay – by invalidating moratoria, special local vetoes, and sprawling buffers, the CCB is clearing bottlenecks that have slowed openings and distorted site selection.
They harmonize local and state roles – the CCB encourages more traditional TPM tools, i.e., hours of operation, parking, traffic, noise, odor, and narrow historic-district aesthetics, while identifying that municipalities may not duplicate or undermine the state regime.
Most importantly, businesses should no longer take municipal rulemaking at face value. Instead, operators should closely scrutinize local codes for conflicts with MRTA § 131(2), 9 NYCRR 119.1, 119.2, and 119.5. Operators should use the CCB advisory process to challenge overbroad ordinances that block site control, permitting, or delivery. Ensure that you engage in the municipal process to create a better track record for challenges by documenting how a local measure frustrates your ability to operate as license, given that Section 119.5 makes that a decisive factor.
Finally, understand that in circumstances where an ordinance has already been adopted, the advisory opinion only provides you a presumption of invalidity, which you still likely have to incorporate into a Supreme Court filing to effectuate (if the municipality does not agree to voluntarily suspend and/or amend the violative ordinance provisions in the interim).
The bottom line is that the CCB has drawn a bright, enforceable boundary around municipal power, i.e., legitimate TPM rules are narrow and enumerated and everything else that impedes, conflicts, or frustrates licensed operations is “unreasonably impracticable” and likely subject to preemption.