Key Takeaways:

• The Towns of Southampton, Riverhead, and Brookhaven filed a joint lawsuit in Albany County Supreme Court on February 6, 2026, challenging the New York State Cannabis Control Board’s advisory opinions that declared their local cannabis zoning laws “unreasonably impracticable” and preempted by state law.
  
  
• At the heart of the dispute is the scope of municipal authority to regulate adult-use cannabis dispensaries under New York’s Marihuana Regulation and Taxation Act (MRTA), specifically whether towns that opted into the cannabis market retain meaningful land use authority beyond narrow “time, place and manner” restrictions.
  
  
• The outcome of this litigation will have far-reaching consequences for municipal home rule, the viability of New York’s adult-use cannabis market on Long Island, and the future of cannabis dispensary siting across the state.
  
  
• Cannabis entrepreneurs, licensees, real estate developers, and investors with interests on Long Island must monitor this litigation closely, as a court ruling in either direction will materially alter the regulatory landscape.
  
  

Long Island has emerged as the epicenter of one of the most consequential legal battles in New York’s nascent adult-use cannabis industry. On February 6, 2026, the Towns of Southampton, Riverhead, and Brookhaven filed a joint lawsuit in Albany County Supreme Court naming the State of New York, the New York State Cannabis Control Board (CCB), and the New York State Office of Cannabis Management (OCM) as defendants. The towns are asking the court to nullify two CCB advisory opinions and to void the provisions of the state Cannabis Law that they argue unlawfully strip municipalities of their home rule rights to determine where adult-use cannabis dispensaries may operate within their borders.

The dispute raises fundamental questions about the balance of power between New York State and its municipalities — questions that will reverberate well beyond Long Island’s town halls and into boardrooms, courtrooms, and planning offices across the state.

The Legal Background: MRTA, Opt-In, and the Limits of Local Authority

When the New York State Legislature passed the Marihuana Regulation and Taxation Act in March 2021, it included a carefully negotiated concession to local governments: municipalities would have a nine-month window — through December 31, 2021 — to opt out of permitting adult-use cannabis dispensaries and on-site consumption businesses within their boundaries. Critically, the MRTA also provided that any municipality that chose not to opt out would be permanently barred from later reversing course and banning cannabis sales.

Southampton and Riverhead were among the only East End towns to allow retail cannabis sales. Brookhaven and Babylon were the only other Suffolk County towns to opt in. Not a single Nassau County municipality opted in. For the towns that chose to participate, the MRTA’s promise was straightforward: opt in, allow the legal cannabis market to take root, and retain the ability to regulate the time, place, and manner of where and how dispensaries operate within your jurisdiction.

The MRTA does permit municipalities to impose time, place, and manner (TPM) restrictions on cannabis businesses. However, those restrictions are expressly limited by the statute and subsequent CCB regulations to: hours of operation; visual or architectural integrity within historic districts; parking; traffic control; odor; noise; and distance requirements from public youth facilities — provided that distance is no greater than 500 feet. Under the law’s framework, any local restriction that falls outside these enumerated categories is preempted by state law.

The CCB Advisory Opinions: What Triggered the Lawsuit

The immediate catalyst for the lawsuit was a pair of advisory opinions issued by the Cannabis Control Board in October 2025. In Advisory Opinion 2025-01, the CCB found that Riverhead’s cannabis zoning ordinances were “unreasonably impracticable” and preempted by state law. Among the Riverhead regulations the CCB found problematic: distance requirements of 1,000 feet from schools (twice the state maximum of 500 feet), distance requirements from libraries, day-care facilities, playgrounds, community centers, and houses of worship that exceeded state parameters, restrictions limiting dispensaries to specific zoning districts not recognized by the MRTA, a one-year moratorium on processing building and land use permits for cannabis businesses, and a requirement that dispensary applicants obtain a municipal opinion letter confirming local code compliance — a requirement the CCB found directly contravened Cannabis Law Section 76, which expressly treats municipal opinions as advisory and non-determinative.

In Advisory Opinion 2025-02, the CCB similarly concluded that Southampton’s cannabis zoning code went beyond permissible TPM restrictions. Southampton had added non-medical cannabis dispensaries as a “special exception use” subject to a multi-step special review process, restricted those businesses to only two of the town’s eight business districts, and imposed architectural review requirements, drive-through window prohibitions, and enhanced signage and security specifications — none of which are enumerated TPM restrictions under the MRTA.

Importantly, the CCB’s own opinions acknowledged a significant procedural flaw: the advisory opinions were issued based solely on the information provided by the dispensary applicants who requested them, without any independent investigation and without affording Riverhead or Southampton any opportunity to contest the facts presented or challenge the CCB’s legal authority to issue such opinions. The towns’ lawsuit squarely highlights this due process concern.

The Litigation: What the Towns Are Arguing

The three towns, represented by Certilman Balin Adler & Hyman — who also represented Riverhead in prior dispensary litigation — are asking the Albany County Supreme Court to do two things: (1) set aside the CCB advisory opinions in their entirety, and (2) declare void the provisions of the state Cannabis Law that purport to limit municipal zoning authority to narrow TPM restrictions.

The towns’ core legal argument rests on the constitutional doctrine of home rule and the position that when they chose not to opt out of the cannabis market in 2021, they did so in reliance on assurances from state officials that they would retain meaningful land use authority over dispensary siting. Southampton Town Attorney James Burke captured the sentiment directly: “We are forced to take this action to protect the towns’ Home Rule authority and our ability to control the regulation of land use within our respective towns.”

The towns further argue that the CCB’s advisory opinions — which do not carry the force of law — have been improperly weaponized in court proceedings, resulting in at least three Suffolk County Supreme Court rulings that struck down local cannabis restrictions. While the CCB readily acknowledges its opinions are advisory and non-binding, the towns contend that courts have, in practice, treated them as determinative, creating an extra-legal regulatory mechanism that bypasses the legislative process and deprives municipalities of their right to be heard.

If the Towns Win: Implications for Municipal Authority and the Cannabis Market

A victory for the three towns would be a landmark affirmation of municipal home rule authority in the cannabis context and would fundamentally reshape how dispensaries are sited across New York State. If a court were to declare the preemption provisions of the MRTA unconstitutionally broad or otherwise invalid, municipalities throughout New York would regain the authority to impose substantive zoning restrictions on cannabis businesses — distance requirements, use district limitations, operational standards — that go well beyond the narrow TPM framework the CCB has sought to enforce.

For Long Island specifically, a towns’ victory would likely result in more restrictive cannabis zoning, fewer viable dispensary locations, and a slower rollout of the legal market in the region. It would also almost certainly discourage other municipalities that have been reluctant to opt in from doing so, as they would once again have more confidence that they could meaningfully control the location and character of cannabis retail in their communities.

From a broader statewide perspective, a ruling in the towns’ favor could embolden other municipalities to revisit, reinstate, or strengthen their own cannabis zoning codes — potentially triggering a wave of additional litigation and regulatory uncertainty for licensees, investors, and real estate developers who have been banking on state preemption to keep local restrictions at bay.

For cannabis entrepreneurs and investors already in the pipeline, the implications would be significant and potentially destabilizing. A site that cleared state OCM requirements could find itself newly out of compliance with reinvigorated local codes. Due diligence on real estate acquisitions and lease agreements would need to become even more rigorous, with greater weight given to local zoning conditions as an independent regulatory layer.

If the State Wins: Implications for the Cannabis Market and Municipal Governance

A State victory — affirming the CCB’s preemption framework and the limited scope of municipal TPM authority — would send an unambiguous signal that New York intends to enforce a uniform statewide regulatory floor for cannabis dispensary siting, and that local governments cannot use zoning as a back-door opt-out or de facto prohibition.

For the legal cannabis market on Long Island and across New York, this outcome would be a meaningful accelerant. With fewer than a dozen state-licensed dispensaries currently open on Long Island — compared to more than 580 statewide — the region has lagged significantly behind the rest of the state. A definitive state court ruling affirming preemption could open a far wider universe of legally compliant dispensary locations, attract new capital and operators to the region, and begin to close the competitive gap between Long Island and the rest of the state’s legal market.

For cannabis licensees currently navigating site selection, this outcome would provide a much-needed measure of certainty. The past eighteen months have been characterized by conflicting court decisions, a shifting regulatory landscape, and a near-total freeze on dispensary openings in the most restrictive Long Island municipalities. A clear preemption ruling would allow licensees, their investors, and their legal counsel to map out site selection strategies with far greater confidence.

That said, a state victory is not without its complications for municipalities. Towns and villages that chose not to opt out specifically because they wanted to prevent cannabis sales — and did so before understanding the full scope of what opting in would mean — will have little recourse. As the MRTA currently stands, opting back out is not an option for municipalities that declined to opt out in the initial window. A court ruling affirming the state’s position would lock those municipalities into the legal cannabis market, with substantially diminished ability to shape where and how it operates within their borders.

There is also the chilling effect on future municipal opt-ins to consider. Critics within the cannabis industry have noted that the uncertainty surrounding local zoning authority has already discouraged municipalities from participating in the legal market. A state win that clearly defines — and limits — what towns can actually regulate may paradoxically encourage more municipalities to opt in by at least providing clarity on the rules of engagement.

What This Means for Cannabis Entrepreneurs, Investors, and Real Estate Stakeholders

The stakes in this litigation extend well beyond the three towns and the OCM. For any person or entity with a financial interest in New York’s adult-use cannabis market — whether as a licensee, investor, real estate developer, or prospective applicant — this case demands attention.

First, the outcome will determine the viability of Long Island as a meaningful cannabis market. With only four Suffolk County towns opted in — and local zoning in each of those towns under active legal challenge — the region’s potential has been severely constrained. A definitive resolution in either direction will allow stakeholders to make more informed strategic decisions about whether and where to invest in Long Island cannabis real estate and operations.

Second, and more broadly, this case will clarify the interplay between state cannabis law and local land use authority in a way that will inform decision-making for cannabis siting across the entire state. The preemption doctrine, as interpreted by the courts, will become a foundational element of cannabis real estate due diligence going forward.

Finally, the procedural issues raised by the towns — particularly the due process concerns around the CCB’s advisory opinion process — may have implications for how the OCM and CCB exercise their regulatory authority going forward, regardless of how the substantive preemption questions are resolved.

Conclusion

The lawsuit filed by Southampton, Riverhead, and Brookhaven is more than a zoning dispute. It is a direct challenge to the foundational framework of New York’s adult-use cannabis regulatory structure and a test of how far state preemption extends into the traditionally local domain of land use law. The resolution of this case will shape the cannabis market — and municipal governance — for years to come.

Cannabis entrepreneurs, licensees, investors, and real estate stakeholders operating in or considering entry into the New York market should closely monitor the progress of this litigation and consult experienced legal counsel to understand how the evolving legal landscape may impact their operations, investments, and strategic planning.

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Disclaimer: This article is for informational purposes only and does not constitute legal advice.