Area residents opposed to the decision by their elected officials to opt out of allowing marijuana dispensaries to operate within their municipality have an option to fight back, but only have a limited time period to use it.
Under New York State’s Marijuana Regulation and Taxation Act (“MRTA”), local municipalities have the opportunity to opt out of allowing retail dispensaries and on-site consumption licensees to operate within their jurisdiction. To do so, the town, village, or city’s legislative body must adopt a local law to ‘opt out’ by December 31, 2021. In August alone, the boards of three local townships have voted to opt out: Ellicott (on Aug. 16), Carroll (on Aug. 11), and Busti (on Aug. 2).
But even with the town board’s approval to ‘opt out’, the local law is still subject to a permissive referendum governed by New York State Municipal Home Rule Law. State law provides that the proposed local law takes effect 45 days after its adoption, unless a valid petition requesting a permissive referendum is filed with the municipality’s clerk within that 45-day period. Any individual who was qualified and registered to vote in the last general election can file a petition calling for the permissive referendum. In order to force a public vote on the local law, the petition must be signed and authenticated by at least 10 percent of the total number of votes cast for governor during the last gubernatorial election in the respective municipality.
The last gubernatorial election was in 2018. In the town of Ellicott 3,455 people voted for governor that year, meaning a minimum of 346 signatures would have to be collected to force a public vote. Meanwhile, the total number of votes for governor in the Town of Busti was 3,319, meaning 332 signatures would have to be collected. In the Town of Carroll the number was 1,445, meaning 145 signatures would have to be collected.
Besides any qualified local resident having the opportunity to submit a petition, any member of the town board can also present a resolution within 45 days of the local laws passage, calling for a public vote on the matter. If a majority of the town board approves the proposed resolution, a public vote would then take place.
In addition to townships having the ability to ‘opt out’, each village in the township also has the choice to opt out or allow dispensaries to open, regardless of what their township does. For example, even though the Town of Ellicott opted out, both the village of Celoron and the Village of Falconer would also have to pass their own Opt Out local law, in order to disallow marijuana dispensaries from operating in their respective jurisdictions.
Clymer is another township in Chautauqua County that has decided to ‘opt out’ of allowing marijuana dispensaries from opening. But officials made that decision in Mid-June, meaning the 45-day window to file for a permissive referendum has already passed.