On November 3, 2025, the New York State Cannabis Control Board issued Advisory Opinion 2025-03, concluding that key provisions of the Town of Tuxedo’s proposed cannabis dispensary law were “unreasonably impracticable” and therefore preempted by Cannabis Law §131(2).
Seligson Law P.C. represented Augusta Properties, Inc., a commercial property owner in Tuxedo, in challenging the proposed ordinance under 9 NYCRR Part 119’s “unreasonably impracticable” standard. Augusta joined Uncle Joe’s Joint Venture (a CAURD licensee) and BWell Holdings NY Inc. (an adult-use retail licensee) in asking the Office of Cannabis Management (OCM) and the Cannabis Control Board (CCB) to review the local law.
The result: a published advisory opinion that strikes at the heart of overly restrictive municipal cannabis zoning in New York.
What Tuxedo Tried to Do
The Town of Tuxedo’s proposed law attempted to heavily restrict cannabis retail dispensaries by:
- Excluding cannabis retail from ordinary “retail use” and confining dispensaries to a Cannabis Retail Dispensary Overlay District (CRD);
- Limiting dispensaries to a small cluster of parcels in a single tax map section, far from much of the town’s commercial activity;
- Imposing a 2,000-foot buffer between dispensaries, effectively restricting the town to at most a single operator;
- Requiring a 500-foot buffer from a long list of “sensitive uses,” including libraries, places of worship, addiction treatment centers, and daycares—far beyond what state law permits;
- Layering on special use permits, annual inspections, and discretionary revocation powers at the local level; and
- Dictating detailed operational requirements, including armed security guards, 4K surveillance systems, cash storage rules, advance disclosure of delivery protocols to police, and warrantless inspections.
In short, the law attempted to use zoning, buffers, permitting, and operational mandates to do what the town was not permitted to do directly: make legal participation in New York’s licensed cannabis market effectively impossible.
The Legal Framework: Cannabis Law §131(2) and 9 NYCRR Part 119
Under Cannabis Law §131(2), New York has preempted municipalities from regulating the “operation or licensure” of cannabis businesses, with one narrow exception: local governments may adopt time, place, and manner regulations for adult-use cannabis retail dispensaries and on-site consumption sites—but only if those restrictions do not make operation “unreasonably impracticable.”
OCM’s regulations at 9 NYCRR §119.2(a) spell out what counts as a permissible time, place, and manner regulation. It is a short, closed list, including:
- Hours of operation;
- Architectural/visual requirements in historic districts;
- Parking and traffic;
- Odor and noise; and
- Distance of up to 500 feet from a public youth facility as that term is defined in 9 NYCRR §118.1(89).
Anything outside that list—like rewriting land-use categories just for cannabis, adding special use permit schemes, or dictating internal security protocols—is not a permissible time, place, and manner regulation and is preempted by state law.
What Advisory Opinion 2025-03 Actually Holds
The CCB agreed with Augusta and the other requestors and held that multiple sections of Tuxedo’s proposed law are unreasonably impracticable and therefore subject to preemption under Cannabis Law §131(2). Specifically, the Advisory Opinion concludes that:
- Redefining cannabis retail as “not retail” and confining dispensaries to a remote overlay district (Sections 2, 3, and 7) is improper and unreasonably impracticable;
- Requiring a special use permit and annual local inspections for dispensaries (Section 98-28(B)) is beyond permissible time, place, and manner regulation;
- Imposing a 500-foot buffer from schools, playgrounds, daycares, libraries, public pools, places of worship, addiction treatment providers, and youth facilities—and a 2,000-foot buffer between dispensaries (Sections 98-28(A)(1) and (2)) exceeds what §119.2 allows and unlawfully expands the definition of “public youth facility”;
- Requiring 100 feet of State or County road frontage, armed, certified security, 4K cameras, on-site cash storage rules, advance disclosure of delivery protocols, and warrantless local inspections (Sections 98-28(C)(12), (F)(1)–(4), and (G)) are operational mandates squarely within the exclusive jurisdiction of the Cannabis Control Board—not municipalities; and
- The Town’s attempt to use a “superseding” Municipal Home Rule clause (Section 8) to override state preemption simply does not work, given the Legislature has clearly occupied the field of cannabis regulation statewide.
The CCB therefore found these provisions “unreasonably impracticable” and subject to preemption, and expressly declined to give effect to them.
Why This Matters for Cannabis Operators and Landlords Across New York
This advisory opinion is bigger than one town:
- It confirms that municipalities cannot use clever zoning or overlay tricks to box out cannabis retailers from areas where other retail is allowed.
- It clarifies that “public youth facility” is a narrow, state-defined term—towns cannot simply label every church, library, or private facility as a youth buffer and then deny sites.
- It reaffirms that internal operations—security, cameras, cash handling, delivery protocols—belong to OCM and the CCB, not local boards.
- It gives licensees, landlords, and developers a concrete, written roadmap for challenging local cannabis laws that cross the line from regulation into de facto prohibition.
If you are a license applicant, property owner, or investor facing restrictive local cannabis ordinances in New York, Advisory Opinion 2025-03 is a powerful precedent for arguing that those laws are preempted and unreasonably impracticable.
What Municipalities Should Take Away
For towns, cities, and villages that opted in to adult-use cannabis, this opinion is a warning shot:
- You may regulate time, place, and manner—but only in the narrow, enumerated ways listed in 9 NYCRR §119.2(a).
- You may not create elaborate overlay districts, special permitting regimes, or operational micromanagement that “impose an additional layer of regulation in an area where the Legislature has evidenced its intent to preempt the field.” Cannabis Official Site
- You cannot use Municipal Home Rule as a back door around Cannabis Law §131(2).
The message from OCM and the CCB is clear: local control has limits, and those limits will be enforced when municipalities make the legal cannabis market unreasonably impracticable.
How Seligson Law P.C. Can Help
Seligson Law P.C. represents Augusta Properties, Inc. in this matter and regularly advises:
- License applicants and operators on New York cannabis zoning and siting strategy;
- Landlords and developers on cannabis-friendly leasing and land-use planning; and
- Municipalities seeking to align local ordinances with MRTA, Cannabis Law §131(2), and 9 NYCRR Part 119.
