On Cannabis Opt-Out, Towns Search Their Souls

As Georgia Lopez, a member of Hastings-on-Hudson’s Board of Trustees, cast the first vote in favor of allowing marijuana dispensaries to open in the village, her voice shook with emotion. “I really do believe that most [opponents] are well-intentioned, but many do not know what it is like to be othered,” she said, looking into her webcam. “I think most of us believed that it was right to legalize cannabis, but now that it’s legal, we don’t want it here. This perpetuates the stigma that is attached to cannabis—that it is an ‘over there’ thing.”

By the time the November 16 meeting ended, three of the five town trustees—all of whom are Democrats—had voted to allow dispensaries to open in the village. But four voted not to allow consumption lounges, a split decision that marked what many hoped would be an end to months of public arguing over cannabis, which had played out on online forums and Facebook groups.

A version of what happened in Hastings rippled through communities across the state late last year, set into motion when Governor Andrew Cuomo signed the Marihuana Taxation and Regulation Act (MRTA) on March 31, 2021, legalizing marijuana for commercial and recreational use in New York. A provision in the act gave all municipalities the choice to opt out of cannabis dispensaries and/or consumption lounges—two separate decisions—by December 31. (Any municipality that did not pass its own laws would be automatically opted in.) But the ability to opt out effectively opened a rear front in the marijuana legalization battle, setting neighbors against neighbors and turning normally tepid village trustee races into culture wars in miniature.

To Opt Out or Not to Opt Out? 

In the end, about half of New York cities, towns, and villages voted not to allow dispensaries, and 57 percent opted out of allowing on-site consumption lounges, according to preliminary data collected by the Rockefeller Institute of Government. Those numbers were a bit higher in the Hudson Valley: roughly 56 percent of municipalities in Columbia, Dutchess, Greene, Orange, Putnam, Rockland, Ulster, and Westchester voted not to allow dispensaries, with a higher percentage opting out of lounges.

“I am not surprised by the number of communities that opted out, and I still support my decision to allow this local option,” state Senator Liz Krueger, the lead sponsor of the MRTA, told The River. “Those localities that have opted out will miss out on opportunities for new businesses and jobs, and will also lose out on a share of the sales tax revenue. I think in a few years they will change their minds.”

Credit: Jake Rogers

The concept of an opt out is not atypical—marijuana legalization laws in Colorado, Massachusetts, and New Jersey had similar provisions. It allows lawmakers to minimize any political damage they may fear from supporting legalization. While opting in is permanent, municipalities that did opt out have the option of opting in at a later date. Most municipalities made their decisions through a simple vote of the local boards. (A select few in the state had a pre-existing statute on the books that allowed them to put the question on the ballot; it was also possible for residents to petition for a permissive referendum, but only once a decision was made by the board). 

The MRTA’s opt-out provision has a precedent in municipalities’ ability to opt out of liquor sales by referendum, according to Roderick Hills, an NYU law professor specializing in local government law. The major difference, he says, is the deadline. “The expiration of municipal powers through the passage of time is an oddity.”

This oddity was likely intended to jumpstart investment by providing commercial entities with a concrete start date. But it also invited conflict that tore through many local governments, who were racing against the clock with only partial information about the regulations they were opting in or out of. This led to often unexpected results—and in the case of some communities, reactionary, not-in-my-backyard politics.

“Everyone loves the idea of legal marijuana, but actually wanting to put a dispensary in their backyard makes people nervous,” says Heather Trela, who assembled the Rockefeller Institute’s tracker. “In the abstract it’s one thing, but in practice it’s another.”

Municipalities’ reasons for opting out—or the arguments made by residents opposed—can be roughly broken into three categories, Trela says. The first is “uncertainty because the state regulations have not been put together yet, partly because the Office of Cannabis Management had a very late start. There is a concern that because they cannot opt out again, they’re taking a wait-and-see approach and may opt in at a later time.” 

The second is a fear of encouraging drug use and of kids having access to marijuana. (Data from studies vary widely on this point; anecdotally, many believe that legalization dries up illicit markets, while many others contend that more marijuana makes it easier for kids to get it). The third is the most concretely NIMBY: concern over changing “character of the town,” sometimes couched in worries over changing traffic patterns, increased visitors, or impaired driving.

Not In My Backyard

In Hastings-on-Hudson, a small, wealthy, progressive village in the Congressional district that elected democratic-socialist Representative Jamaal Bowman, all three tendencies were on display. In the fall, as the deadline approached, controversy took over the village.

Nowhere was this more apparent than in the several Facebook groups that for over a decade have served as a constant and bombastic town hall. “So many storefronts that can’t maintain a business and yet we grant this? Still can’t understand why this kind of business needs to be in a small village vs a white plains or Yonkers or mamaroneck ave [sic],” one resident wrote in the private group 10706Parents on November 17.

“The notion of ‘preserving the character of our town,’ really took me aback,” says Lisa Litvin, the former president of the school board. “In light of the racist history of marijuana laws, I would have hoped people thought twice about those associations.”

The MRTA does include explicit language and provisions about social justice; as State Assembly Majority Leader Crystal Peoples-Stokes said upon the bill’s passage, “we are providing marijuana justice by ensuring investment into the lives and communities of those who suffered for generations as a result of mass incarceration.”

Credit: June Marie/Flickr

Nicola Armacost, the mayor of Hastings, wasn’t persuaded by the NIMBY argument. “We’re an affluent, liberal municipality, and I feel proud to be a municipality that won’t let the stigma associated with cannabis make us shy away from allowing legal sales here,” she says. “For me, it’s very much a social justice issue. The coded language about the ‘unsavory elements’ that could be brought to the town really turns my stomach.”

Moreover, Armacost thinks that the state’s guidance was clear. “The state made the choice to legalize [instead of] decriminalize. The intention of legalizing is to allow legal sales. If you decriminalize, then selling is still illegal…That’s why they set it up so that the default position under the law is to allow dispensaries and lounges. The assumption is that it’s legal, the default is that you allow them.” 

Not everyone was as convinced. That’s why Fred Muench, a Hastings resident and president of the nonprofit Partnership to End Addiction, helped start Opt Out Hastings, a coalition with a petition that he says collected nearly 300 signatures. While Muench believes in decriminalization of all substances, he says he is concerned about the impact of addiction and with how the drive for profit might affect advertising and usage.

“Legalization and decriminalization are about social justice. Dispensaries and lounges are about commercialization and nothing else,” he says. “To claim it’s about social justice is a red herring. That’s what all the people who make money from marijuana are pushing.”

In a contentious public hearing held over Zoom on November 15, Hastings resident Kenneth Nanus expressed dismay at the same line of argument. “For me there’s a much bigger issue than social justice at work here,” he said. “That issue is democracy. A good argument can be made that the board seems just as happy to okay this pot shop without much, if any, public discussion. That’s not how democracy works.”

Whose Backyard?

Not every municipality in the Hudson Valley weathered this sort of conflict. In the village of New Paltz, for example, Mayor Tim Rogers says he can only remember one call from a concerned resident. The village did not opt out of dispensaries nor lounges, and Rogers says the board had been “following the possibility of cannabis legalization for several years now,” with little internal strife. 

In fact, it is striking how little the data of opting out hews to any discernible pattern, whether geographic or demographic.

In Orange County, for example, only four municipalities chose not to opt out of either dispensaries or lounges: the city and town of Newburgh and the town and village of Woodbury. According to US Census data, Newburgh’s median household income is $41,769, barely half of Orange County’s median of $79,994; by contrast, Woodbury’s is a significantly higher $130,541. Orange County is 57.7 percent white; Newburgh is 16.7 percent white and 52.2 percent Hispanic, and Woodbury is close to the county average at 59.1 percent white. Newburgh Town Supervisor Gil Piaquadio figured that if people would buy marijuana no matter what, the revenue might as well be steered back to the town.

Or take Westchester. Of the six majority Hispanic municipalities in the county—Elmsford, Ossining village, Peekskill, Port Chester, Sleepy Hollow, and Yonkers—half chose not to opt out of dispensaries or lounges; two opted out of both; and one opted out of lounges but not dispensaries. All six have average household incomes below Westchester County’s average of $96,610. Pound Ridge, the whitest (83.9 percent) and the richest ($204,778 median household income) municipality in Westchester, chose not to opt out of dispensaries or lounges.

The only majority Black municipality in Westchester, Mount Vernon, chose not to opt out of dispensaries or lounges. In mid-December, Mayor Shawyn Patterson-Howard told Pix11 News that “we want to make sure that Mount Vernon, which has had challenges like many urban communities at the hands of the illegal drug trade, does not miss out on the economic opportunity that medical marijuana brings.”

And while counties that went for Trump in 2020 opted out at slightly higher rates, political leaning was also not a proscriptive indicator of cannabis adoption. Westchester had the highest proportion of votes for Biden but not the highest proportion of municipalities that did not opt out; Greene had the highest proportion of votes for Trump but not the highest proportion of municipalities that did opt out.

In other words, while there is a partisan tilt to legalizing the sale of marijuana, it is not stark. After all, recreational marijuana is now legalized in Montana—a state Trump won with 57 percent in 2020 and which has a Republican-led house, senate, and governor. 

The Race for Trustee 

In true-blue Hastings, at least, the tensions over the Board of Trustees’ decision did inspire political action—and further tensions.

Spurred by his concerns about democracy, Kenneth Nanus decided him to run for trustee himself. Soon he was joined by another dismayed Hastings resident, Darryl Strutton. The two ran under the banner of “Tomorrow’s Hastings,” challenging the two trustees—Georgia Lopez and Morgen Fleisig—who voted not to opt out and who were up for reelection.

“When your trustees hand your village over to the greedy and waiting arms of the marijuana industry…it’s time for new trustees,” read a post in 10706Parents that shared their campaign page.

On January 20, the Hastings Democratic Committee held a forum for the four candidates over Zoom. Nanus said that he “believe[s] that these two trustees have violated that trust by failing to engage with people whose principles are different than theirs,” such as “those who were opposed to a cannabis store, [who] all pleaded with the board to listen to their concerns, which were met with deaf ears.” Strutton pledged to “fix what is broken and improve transparency.”

Fleisig and Lopez, for their parts, leaned on their status as incumbents already involved with multiple projects in the village. They held their ground on their votes for a dispensary.

On the night of January 22, Nanus suddenly withdrew from the race, citing “unforeseen medical reasons” in an email blast and urging his supporters to vote for Strutton and not to vote for Fleisig (Lopez was not mentioned). The next day, Hastings residents lined up outside of the community center in the bitter cold to cast their votes.

It wasn’t close. Lopez and Fleisig won in a landslide, with 450 and 420 votes, respectively. Strutton got 189 votes; Nanus received 19 write-ins. As soon as the committee released the numbers, the Facebook pages lit up with complaints about the process and requests for Strutton and Nanus to run in the general election as independents.

On a Zoom hearing in the lead up to the village’s cannabis decision, Mayor Armacost noted that it had to be their most-attended meeting of all time. The dust will settle—and then surely be kicked up again, perhaps by the appearance of a dispensary in the future. And with a significantly higher number of residents now familiar with the Board of Trustees’ purview and structure, it is more likely that some will continue to participate in board meetings, whether they are virtual or in-person. As the Rockefeller Institute’s Trela said about her time tracking which municipalities opted out and why, “This has been a great crash course on local government, how decisions are made, and their impact on community.”

This article was also published in the March 2022 issue of Chronogram.