Meeting on Issues: Marijuana & “City of YES” – January 18, 2024

Against “City of YES” and legalization of marijuana.

Speaker Vic Starsky’s warning on “City of YES” zoning changes.

NEW YORK – Department of City Planning (DCP) Director Dan Garodnick today announced that DCP will hold monthly public information sessions on components of the City of Yes for Housing Opportunity proposal, highlighting how they will benefit New Yorkers and address the city’s housing crisis. Held once a month from January to April via Zoom, the info sessions will offer the public opportunities to learn and ask questions about the Universal Affordability Preference (UAP), diverse housing types (ADUs, conversions, and shared and small homes), “Missing Middle” housing types, and the proposal as a whole, respectively.

  • Tuesday, January 30: The Universal Affordability Preference – register here
  • Tuesday, February 27: Diverse Housing Types (ADUs, Conversions, & Shared/Small Homes) – register here
  • Wednesday, March 27: “Missing Middle” Housing Types (transit-oriented development and “town center” zoning) – register here
  • Wednesday, April 17: Overview of the City of Yes for Housing Opportunity Proposal – register here

Each of the info sessions will take place from 6:30-8:30 PM.

WHEREAS, the Department of City Planning under Mayor Eric Adams has filed a legislative package under the banner of citywide zoning changes, called “City of Yes – Housing Opportunity”, proposing vast changes to land use, particularly for exponential increases in residential housing in lower-density zoning districts, and

WHEREAS, the subject Scope of Work document makes several conclusions that are not supported by accurate or complete data, which conclusions could have significant and lasting negative implications on communities throughout the city, and

WHEREAS, misleading and irrelevant comparisons are made in the document to other municipalities related to both housing starts and lower-density residential communities in New York City, and

WHEREAS, certain incorrect assessments are presented in the document regarding rezoning actions by the city in recent years showing, contrary to facts, that contextual zonings, lower-density communities and the Zoning Resolution itself are the main cause of the “housing crisis” in New York City, and

WHEREAS, contrary to the document’s intimations, the adoption of this plan would even further limit input from neighborhoods, Community Boards and elected officials in terms of planning and zoning among other issues raised due to dramatically increased “as-of-right” development scenarios, and

WHEREAS, contrary to the document’s assumptions, creating new upzoning mandates through transit-oriented development (TODs), accessory dwelling units (ADUs), “Town Center” zoning and drastic changes to the framework of basic zoning regulations, specifically in lower-density (R1-R5) zoning districts and particularly in one- and two-family zones (all R1 and R2 districts and R3A, R3X, R3-1, R4A, R4B, R4-1 and R5A zones) as well as elimination of all off-street parking requirements for all new residential development among other proposals within the “City of Yes – Housing Opportunity” overall package, will have an overwhelmingly negative effect on lower-density communities, and

WHEREAS, contrary to the report’s conclusions, the elimination of single- and two-family zoning, parking requirements and proposed legalization of basement/cellar, attic, garage units and new apartments in backyards would, in fact, disproportionately negatively affect minority communities across the city, and

WHEREAS, Queens Community District 9 believes that single- and two-family housing provides an affordable housing alternative in the city for middle class families who might otherwise leave the city.

THEREFORE, Queens Community District 9 stands in opposition to the “City of Yes – Housing Opportunity” proposed zoning changes issued by the Department of City Planning under Mayor Eric Adams in its entirety, particularly in opposition to A) lessening input from neighborhoods, Community Boards and elected officials in the planning, zoning and land use process through enabling increased “as-of-right” development; B) the imposition of mandated upzonings which would exponentially increase development in lower-density areas of the city, including TODs, ADUs and “Town Center” zoning; and C) radical changes to the basic zoning framework of all R1 through R5 zones, elimination of parking requirements in all new residential construction and other proposed changes that would deregulate residential zoning and drastically change the character of our neighborhoods.

Speaker George Hritz’s (seated) memorandum on Cannabis Impact Prevention Coalition, et al vs. Kathy Hochul et al.  Published with permission.

“THC (the principal psychoactive constituent of cannabis) was 2% (in smoking marijuana plant).  Today, up to 95% THC could be found in cannabis products!”  George Hritz

New York State’s motion to dismiss seeks to deny review by the courts of the State’s unlawful promulgation of regulations contrary to federal law that make marijuana a controlled substance and therefore illegal. As set forth below, the adoption of New York’s “medical cannabis”, “Adult-Use” packaging and labeling, and “Adult-Use” marketing and advertising regulations are in conflict with federal law of great public interest. The State, in carrying out its duties, must do so in accord with federal law. New York State, in its motion to dismiss, failed to recognize that the plaintiffs have “public interest” standing and that at least one of the individual Plaintiffs also does (and will be joined by others).

           “A party may amend a pleading or supplement it by setting forth additional or subsequent transactions or occurrences. On such a motion . . . the movant need not establish the merits of the proposed amendment. In the absence of prejudice or surprise resulting directly from the delay, such applications should be freely granted unless the proposed amendment is clearly insufficient or devoid of merit.

This proceeding is in its beginning stages and discovery has not even commenced.

The State has not and cannot have incurred any change in position or hindrance in defending this action/proceeding. Moreover, there is no surprise that results in prejudice to the State.

Complaint pleads further factual allegations sufficient to confer standing upon the Plaintiffs

and clarifies the causes of action, but does not necessarily add new causes of action.

Plaintiffs also have public interest standing.

As a general rule, “a party challenging governmental action must meet the threshold burden of establishing that it has [1] suffered an ‘injury in fact’ and [2] that the injury it asserts ‘fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted’”

However, such “[s]tanding principles, which are in the end matters of policy, should not be heavy-handed . . .” and should not be applied “in an overly restrictive manner where the result would be to completely shield a particular action from judicial review”.

Here, “where a citizen, in common with all other citizens, is interested in having some act of a general public nature done, devolving as a duty upon a public body or officer refusing to perform it, the performance of such act may be compelled by a proceeding brought by such citizen against a body or officer’

“Every citizen has an interest in matters which concern the public and in the enforcement of constitutional provisions in connection with designations in which the public is interested”

“It follows that [the] doctrines governing standing must be sensitive to claims of institutional harm” and proceedings “of this type can serve as a means for citizens to ensure the continued vitality of the constraints on power that lie at the heart of our constitutional scheme”

Petitioners have “public interest” standing to maintain its proceeding. In substance, the Petition states a cause of action in the nature Mandamus to Compel. To apply standing principles in the restrictive manner Respondents urge would be to block the Plaintiffs from the courthouse

In effect, the challenged regulations at issue in this proceeding would indefinitely remain not subject to scrutiny and the institutional harms set forth at length in the petition would continue.

The individual Plaintiff also has standing to maintain all claims in this proceeding-action and so will others who can be added.

In the context of Article 78 claims, standing requires that the petitioner “has [1] suffered an ‘injury in fact’ and [2] that the injury it asserts ‘fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted’”

“The injury-in-fact requirement necessitates a showing that the party has ‘an actual legal stake in the matter being adjudicated” and has suffered a cognizable harm’ that is not ‘tenuous,’ ‘ephemeral,’ or ‘conjectural’ but is sufficiently concrete and particularized to warrant judicial intervention”.

The individual Plaintiff has suffered injury in fact in that he has been directly harmed and injured by the States adoption of the regulations. After the adoption of these rules, the individual plaintiff purchased marijuana many times from retail marijuana stores, and marijuana displayed no labelling or warnings whatsoever. Especially with one who had already struggled with addiction, the marijuana he purchased legally under New York State law and after the promulgation of the regulations worsened his. As a result, he suffered from impulsiveness, irrational and impaired behavior, memory loss, hallucinations, and anxiety, among other things.

Moreover, marijuana marketing and advertising and the prevalence of marijuana smoke and odor have caused him to suffer urges related to his addiction to marijuana. These harms are personal to him and due to the promulgation of the regulations. Accordingly, the individual Plaintiff has an actual legal stake in the matter as since he has suffered cognizable harm sufficient to maintain this proceeding-action.

Moreover, his injuries fall within the zone of interests or concerns sought to be promoted or protected by the regulations in that these rules concern protecting the health, safety and welfare of the people of the state. Sections 13 and 43 of legislation, enacted, specifically granted the State the authority to promulgate regulations pertaining to the medical use of cannabis in New York and the State promulgated Parts 128 and Part 129 in response to that. Those regulations had to fully effectuate the provision law, including its legislative findings and intent. Importantly, the intent of the law, includes, among other things, “protecting the public health, safety and welfare of the people of the state” because previously existing laws were ineffective in reducing or curbing marihuana use. As set forth above, considering the many harms and injuries to plaintiff, his health, safety and welfare has not been protected by the challenged regulations.

A.    The organizational Plaintiffs also have standing.

As a general rule, “[a]ssociations have standing to challenge administrative acts which adversely affect their members”. In the context of an Article 78 proceeding, organizational standing requires that “one or more of its members would have standing to sue[,] . . . that the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests . . . [and] that neither the asserted claim nor the appropriate relief requires the participation of the individual members”.

As set forth above, the individual Plaintiffs, in particular, have public interest standing, and have standing in the traditional sense. Accordingly, one or more members of CIPC and CIVSJ have standing to sue. Further, from the Amended Petition-Complaint and the proposed Second Amended and Supplement Petition-Complaint that “[t]he mission of CIPC is to prevent the negative social, health, public safety and environmental impacts of marijuana” (Amended Petition-Complaint at ¶12) and that “CIVSJ provides advocacy services to the many victims of the cannabis industry” and its “mission is make the marijuana industry legally accountable to their victims” (Amended Petition-Complaint at ¶13). Given the well-known missions of these organizations, challenging certain promulgating regulations in connection with New York’s legalization of marijuana is directly consistent and germane to CIPC’s and CIVSJ’s purposes and thus they are each appropriate representatives of those interests. Finally, the appropriate relief in this proceeding/action clearly does not require the participation of the individuals as the relief sought is for a judgment annulling and vacating the regulation and for a declaratory judgment declaring the foregoing regulations are preempted and in conflict with federal law. The relief also does not necessarily require the participation of the particular individuals of CIPC and CIVSJ as these are primarily legal questions for the court and not primarily fact or individual inquiries concerning the unique personal knowledge of the individual members.

I.         The Petition-Complaint States a Cause of Action

“On a motion to dismiss, a pleading must be afforded a liberal construction”. The court must “accept the facts as alleged in the complaint as true, accord [petitioners-]plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”. “In so doing, affidavits and other proof submitted by petitioners may be considered to remedy any deficiencies in the petition/complaint, and ‘the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one’”

Here the Complaint states causes of action pursuant to CPLR § 7803 and for a declaratory judgment. Thus, in substance, even absent the amendment and supplementation of Plaintiffs have causes of action in the nature of mandamus to compel, in the nature of prohibition, mandamus to review, and for a declaratory judgment. As set forth at length in the Complaint, generally, each respective Defendant, as a body or officer, failed to perform a duty enjoined upon it by law; proceeded, is proceeding, and is about to proceed in excess of jurisdiction; and adopted the instant rules by errors of law, in that each and every Defendant is required to adhere to Federal laws in carrying out their respective duties and failed to do so, and as such, a justiciable controversy exists for which a declaration is warranted. In accepting the allegations of the Complaint as true and according the Plaintiffs every possible favorable inference, the facts as alleged fit within cognizable legal theories to compel the State to perform its duties not in contravention to controlling federal law and for a declaration with respect to the challenged regulations.

Other speakers included Sophia Worrell on getting young Republicans involved; Eric Vineski on Eagle Scout and him earning all 139 patches; John Feltman on his experience with gun ownership in NY; welcoming first time attendee, Johnathan Morpurgo; Tom Sullivan, candidate for State Assembly 23; Steven Wang, State Assembly 25; Juan Pagan, State Assembly 26; and Joseph Chiu, candidate for Congress 6.

The next meeting is February 15, 2024 at Grace Lutheran Church, 103-15 Union Turnpike in Forest Hills.

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