Sussex council feels heat to amend marijuana shop rules

Sussex County Council plans to quickly consider changes to its marijuana retail shop law to stave off a potential second attempt by the state General Assembly to overrule a law the county created last year.  

Gov. Matt Meyer vetoed Senate Bill No. 75 Aug. 28. That bill would have limited the county’s ability to control marijuana shops. Meyer said those decisions are best made at the county level.

“The governor’s staff contacted the county and asked Sussex if they would consider changing the ordinance the county currently has related to marijuana establishments,” said County Administrator Todd Lawson said at the Sept. 9 council meeting.

The state in 2023 passed legislation to authorize cultivation, distribution and sale of marijuana. It allowed municipalities to prohibit operation of marijuana cultivation facilities, marijuana production and manufacturing facilities, marijuana testing facilities and retail marijuana stores.

Many municipalities adopted prohibitions, but counties were only allowed to set the time, place, manner and number of marijuana establishments.

In 2024, council passed an ordinance to set rules for retail marijuana stores. It required conditional-use approval and set a three-mile separation from municipal boundaries, another retail marijuana store, or a church, school, college or substance abuse treatment facility. Such businesses were allowed in a C-3 commercial area with approval of a conditional use. 

The rules banned retail marijuana shops from vast areas of the county and prompted the General Assembly to pass Senate Bill 75 to overrule the county’s apparent subversion of the legislature’s intent to make such businesses legal.

Lawson and Vincent Robertson, a county attorney, defended the county rules at the Sept. 9 council meeting, saying they were primarily based on the state’s own regulations for siting liquor stores, with some revisions.

“When we were drafting this, we were looking at what measurement to use so we weren’t creating one arbitrarily,” Robertson said, “So we looked to what is in Title IV regarding liquor stores, retail liquor stores in the state of Delaware. That state law has a three-mile separation requirement from liquor store to liquor store.”

The distance was increased in 2020 from one mile to three miles, he said.

The county law also considered wishes of municipalities that did not want liquor stores, banning them within three miles of municipalities, Robertson said.

The state liquor law does not include a minimum distance between a liquor store and municipal boundary, church, school, college or substance abuse treatment facility, but the state allows some discretion concerning those distances, he said.

“It seems like it’s subjective,” Robertson said.

To eliminate the inconsistency, the county applied the state minimum distances between liquor stores to the distance between a marijuana retail store and a church, school, college or substance abuse treatment facility, Robertson said.

Council Vice President John Rieley said he has heard complaints that the county law effectively bans marijuana retail stores.

“I don’t believe that’s true,” Rieley said.

Robertson agreed, saying he knows of some potential store locations.

Councilwoman Jane Gruenebaum said restricting marijuana retail shops to certain commercial sites in the county code goes beyond the state liquor law restrictions. 

The county limited marijuana retail stores to C-3 areas, which the council could expand, Robertson said.

Rieley said he believes the governor’s veto was intended to allow council to set its own rules.

“I suspect in return he would want some concessions, negotiations to meet somewhere in the middle,” Rieley said. “What would that look like?”

Councilmen Steve McCarron and Matt Lloyd said they have a libertarian perspective on the issue and were hesitant to support regulations. 

“I’m not one to tell someone what they can do with their body and their time, especially outside of work,” McCarron said.

“I personally want to discuss it more and review the implications more,” Lloyd said.

If council is open to revisions, an ordinance would be drafted and public hearings held before a vote, which could take several weeks, Lawson said.

Senate Bill 75 would have set the minimum distance of a half-mile between marijuana retail stores and 500 feet from schools and colleges, a licensed child care facility, residential treatment facility and a park or library. 

“That honestly goes way too far in the other direction,” Rieley said.

“I appreciate the governor vetoing this and sending it back to us so it becomes again our decision,” Gruenebaum said.

Lawson said there is pressure to act soon.

“There are whispers of a special session and perhaps overriding the veto,” he said, adding a proposal should be considered within weeks, if council wishes.

“The sooner, the better,” council President Doug Hudson said.