Judge strikes down Riverhead cannabis zoning limits, clears way for Ostrander Ave. dispensary

A Suffolk County Supreme Court judge last week struck down three key provisions of Riverhead Town’s cannabis zoning code — clearing the way for a dispensary in the long-vacant former bank building at 1201 Ostrander Avenue.

Justice Paul Hensley ruled on July 23 that the town’s 1,000-foot buffer from any residential use, and its exemption for properties fronting five designated “commercial corridors,” conflict with New York State law, which mandates that zoning regulations must be applied uniformly. The judge also rules the town code’s 2,500-foot minimum distance between dispensaries is pre-empted by state rules, which set a minimum distance of 1,000 feet between dispensaries.

Hensley’s July 23 decision was filed in court Tuesday.

Riverhead Town Attorney Erik Howard said the town plans to appeal the decision. The town will likely change its zoning for dispensary businesses to “address the impact of the decision” going forward, he said.

“I obviously disagree with the conclusions,” Howard said. “Taking the judge’s rationale that the state’s adoption of the [state] cannabis law, gives the state essentially universal power to regulate where these can and can’t go, really undermines the entire concept or local zoning — but also sort of contradicts the language of the law, which defers time, place and manner to the municipalities that opt in.”

Riverhead Town denied a building permit for the proposed Ostrander Avenue dispensary on the grounds that the site did not meet local cannabis zoning criteria. The Riverhead Zoning Board of Appeals then denied the company’s variance request. Tink & E. Co., a company owned by cannabis license applicant Elizabeth McGrath of Cutchogue, and GM Realty Riverhead, the property owner, filed suit against the town in March.

Hensley said in his ruling that the zoning board’s denial of the variance was “arbitrary and capricious.”

The decision also says that Moutafis Motors Ltd, which last month received preliminary site plan approval for a dispensary at the nearby corner of Route 58 and Ostrander Avenue, does not have priority over Tink & E. Co. According to the ruling, Tink & E. Co. received “proximity protection” from the state Office of Cannabis Management over Moutafis Motors.

Moutafis Motors principal Pete Moutafis did not immediately return a call requesting comment.

“We’re extremely pleased for our client,” said Andrew Schriever of Holland Schriever LLP, who represented Tink & E. Co. in the case.

Schriever said the ruling has broader implications for cannabis business zoning across New York State.

“It establishes very, very clearly where the boundary lines are between where municipal powers are and regulation of the cannabis businesses, and that’s really been kind of an area that I think has been gray in a lot of towns and villages and cities,” Schriever said in an interview. “I think that this really brings home and clarifies exactly where those lines are. And in that respect, I think it’s going to be very, very beneficial for the cannabis market as a whole.”

Riverhead is one of only four towns on Long Island that allow recreational marijuana dispensaries. After a 2021 effort to opt-out of cannabis sales failed, the Town Board passed restrictive zoning laws that effectively prevented most commercial properties from qualifying as dispensary sites, delaying the industry’s local rollout.

Early in 2024, the board eased those restrictions somewhat by establishing five “commercial corridors.” Under the revised law, dispensaries proposed on properties fronting these corridors — essentially Riverhead’s business areas, excluding downtown — could receive approval even if within 1,000 feet of a residential use. Each corridor was limited to one dispensary, except for Route 58, which has no cap but mandates a 2,500-foot buffer between shops.

Dispensaries would still need to meet other distance restrictions in the code, including a minimum of 1,000 feet from schools, libraries or day-care facilities, and 500 feet from houses of worship, town beaches, playgrounds and community centers, and children’s amusement parks. 

Cannabis licensee Brian Stark Enterprises LLC wants to set up a dispensary at a former paint store at 1086 Old Country Road, next to the Roanoke Plaza Shopping Center. However, the site is located 735 feet of the property line of Riverhead High School and does not meet the code’s standards. 

Like Tink & E. Co., Brian Stark Enterprises was denied a zoning variance and subsequently filed a lawsuit last month. The suit argues that the town’s zoning law is inconsistent with state regulations.

That case has also been assigned to Justice Hensley. Attorney Martha Reichert of Twomey, Latham, Shea, Kelley, Dubin & Quartararo LLP, who represents the plaintiffs, expressed optimism about a favorable outcome.

“We’re just feeling confident about our legal grounds in challenging Riverhead regulations,” she said in an interview.

There are currently two recreational dispensaries in Riverhead Town: Beleaf on Middle Country Road in Calverton and Strain Stars on Route 58 in Riverhead. Another dispensary by the owner of Planet Nugg in Farmingdale is planned for Main Road in Aquebogue.