By Appellate Court Upholds Riverhead Cannabis Zoning Rules
In a 2026 decision, the New York State Appellate Division, Second Department, reversed a lower court ruling that had invalidated key provisions of the Town of Riverhead’s cannabis regulations. The case stemmed from a 2023 lease for commercial property in the Town’s Business Center Zoning Use District. The property was outside one of the Town’s commercial corridors and was located within 50 feet of a single-family residence.
The applicant, Tink & E. Co., sought permits to operate a dispensary at the property, but the Town Planning Department denied the application for failure to comply with applicable regulations. The applicant then sought variance relief from the Zoning Board of Appeals, which denied the variance in February 2025.
The applicant subsequently commenced an Article 78 proceeding to review the denial.
Other parties seeking to operate a cannabis dispensary approximately 1,600 feet from the subject property moved to intervene. They argued that granting the variance would prevent them from operating at their property due to the Town’s 2,500-foot separation requirement under Town Code § 301-283.20(4). The Supreme Court granted the motion to intervene.
The petitioner then filed an amended petition adding a second cause of action. It sought declarations that the 2,500-foot separation requirement was preempted by state law and that the Town’s 1,000-foot and 2,500-foot requirements violated Town Law § 262.
The Supreme Court initially declared the applicable portions of the Town Code invalid, finding the Town’s 2,500-foot distance requirement preempted by 9 NYCRR § 119.4(a), which sets the required distance at 1,000 feet. The Second Department reversed that ruling.
Uniformity Challenge Rejected
However, the court stated the rule is not absolute, noting that an ordinance will be held to uniformity if the record does not disclose any reasonable basis for different treatment among similar parcels within a district. The court found a reasonable basis for the differing treatment existed.
It explained that each commercial corridor includes only properties with frontage and vehicular access along designated portions of certain Suffolk County routes. Accordingly, the court held that Town Code § 301-283.20(A)(5) did not violate Town Law § 262.
The court remitted the matter to the Supreme Court for entry of an amended judgment declaring the provision valid. Because the court upheld the provision and affirmed the Zoning Board’s denial of the variance, the petitioners were not entitled to operate a dispensary at the property regardless of the preemption challenge.
The court dismissed as academic the cause of action seeking a declaration that the 2,500-foot separation requirement was preempted by state law or violated Town Law § 262, and declined to address the merits of those arguments.
