Riverhead loses key cannabis setback fight, but zoning law survives broader challenge

Two appellate court decisions handed down last week reshaped, but did not dismantle, Riverhead’s local cannabis zoning rules, striking down the town’s stricter school-buffer requirement while upholding other parts of its regulatory scheme.

In a decision issued Wednesday, July 29, the Appellate Division, Second Department ruled that Riverhead may not enforce its local 1,000-foot school-buffer requirement against a proposed adult-use cannabis dispensary at 1086 Old Country Road. The court held that the local rule is preempted by state law because New York’s Cannabis Law already sets the applicable school-distance standard and specifies how that distance must be measured,  affirming the September 2025 decision of the trial court.  

See prior coverage: Riverhead’s key cannabis code restrictions are pre-empted by state law, a Suffolk judge and state regulators agree (Oct. 14)

In a separate but related decision handed down the same day, the Appellate Division upheld the town’s residential setback rules and also upheld the Riverhead Zoning Board of Appeals’ denial of a variance application by Tink & E. Co., finding that the ZBA had a rational basis for its decision, reversing a lower court ruling. 

See prior coverage: Judge strikes down Riverhead cannabis zoning (July 29, 2025) https://riverheadlocal.com/2025/07/29/judge-strikes-down-riverhead-cannabis-zoning-limits-clears-way-for-ostrander-ave-

The status of Riverhead’s 2,500-foot separation rule between cannabis dispensaries, another contested issue, remains unresolved by the appellate court.

Riverhead cannot expand state’s 500-foot school setback

Last week’s ruling is a significant win for 1086 OCR LLC, Brian Stark Enterprises LLC and Brian Stark, who have been seeking to operate a state-licensed cannabis retail dispensary at the Old Country Road building formerly occupied by Aboff’s Paints.  

Under state law, cannabis retail dispensaries may not be located within 500 feet of a school, measured from the center of the nearest entrance of the proposed dispensary to the center of the nearest entrance of the school. Riverhead’s code imposed a stricter 1,000-foot buffer, measured from property line to property line.

The Appellate Division found that Riverhead’s rule improperly added local restrictions to rights granted under state law. As a result, the court agreed that 1086 OCR and Stark do not need a variance from Riverhead’s local school-buffer requirement to proceed at the Old Country Road property.

Martha Reichert, a partner at Twomey, Latham, Shea, Kelley, Dubin & Quartararo who represents 1086 OCR LLC, Brian Stark Enterprises LLC and Stark, said the court “came out on the right side of the law” by holding that Riverhead was preempted from changing the school-distance rule set by the Cannabis Law.

In a phone interview Friday, Reichert called the 1086 OCR decision “a huge landmark decision” for preemption law, but said she wished the court had reached the unresolved issue of Riverhead’s 2,500-foot separation requirement between cannabis dispensaries.

“I think that there’s probably going to be future litigation on some of the unresolved issues,” Reichert said. “They’ll come up again.”

Reichert said the 1086 OCR/Stark applicants are now positioned to seek their building permit. She said a stay had been in place while the appeal was pending, but that the stay is no longer in effect and a building permit application has been submitted.

Town’s cannabis law doesn’t violate zoning uniformity rule

But the appellate court did not invalidate Riverhead’s cannabis zoning law wholesale.

It rejected the argument that several of Riverhead’s cannabis provisions violate Town Law §262, which requires zoning regulations to be uniform within a zoning district.

That part of the ruling is important for the town’s broader regulatory scheme. While Riverhead lost the ability to enforce its local school-buffer rule where it conflicts with the state Cannabis Law, the Appellate Division did not strike down the town’s cannabis zoning provisions as improperly non-uniform.

Town Attorney Erik Howard said in an email Friday the town agrees with the Appellate Division’s ruling that Riverhead’s cannabis provisions do not violate Town Law §262’s zoning uniformity requirement. But he said the town sees a potential conflict in the court’s reasoning on preemption.

Town attorney disputes preemption of local rules by Cannabis Law

Howard said the Cannabis Law provision relied on by the court for its preemption conclusion does not state that municipalities are barred from establishing a greater distance requirement, while another section of the same law specifically allows municipalities to adopt reasonable time, place and manner regulations for retail dispensaries. 

The law could reasonably be read as establishing a minimum restriction, rather than preventing municipalities from adopting greater distance requirements, Howard said. That reading would be more consistent with the provision of the law that specifically allows those time, place and manner restrictions.

Howard said he is exploring the town’s options with special counsel in response to the decision. 

He also said the town continues to believe the state Office of Cannabis Management and Cannabis Control Board are adopting regulations and issuing determinations beyond their legislative authority.

Residential setback rule and exemption upheld

The town is “very pleased” with the outcome in the Tink case, Howard said. The ruling means Tink is not entitled to operate a cannabis dispensary at the Ostrander Avenue location.

The Appellate Division held that the town’s residential setback rule, including the commercial-corridor exception, does not violate Town Law §262. The court found that Riverhead had a reasonable basis for treating properties in the commercial corridors differently because those corridors include properties with frontage and vehicular access along designated county routes.

Riverhead’s code generally prohibits cannabis retail establishments within 1,000 feet of residential-use property, unless the site is located within one of five designated commercial corridors — essentially Riverhead’s business areas, excluding downtown. Under town code, each corridor is limited to one dispensary, except for Route 58 (Old Country Road), which has no cap but mandates a 2,500-foot buffer between shops.

Town’s 2,500-foot separation between cannabis shops left untouched

The appellate decisions did not resolve whether Riverhead’s 2,500-foot separation requirement between dispensaries is preempted by state cannabis law.

The trial court in Tink ruled that 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. But the Appellate Division did not reach that issue. Because it found Tink could not operate at its proposed site without a variance, and upheld the ZBA’s denial of that variance, it deemed the 2,500-foot challenge academic.

The trial court held that Tink & E. Co. received “proximity protection” from the state Office of Cannabis Management, which would prevent Moutafis Motors from opening a dispensary at the nearby corner of Route 58 and Ostrander Avenue. Moutafis in June 2025 received preliminary site plan approval for a dispensary at the former auto sales and repair shop site.

Taken together, last week’s two appellate court decisions leave Riverhead’s cannabis regulations in a mixed position.

The town cannot enforce its 1,000-foot school-buffer requirement where it conflicts with the state Cannabis Law’s 500-foot rule and measurement method. But the town’s residential setback and commercial-corridor framework remains intact, and the appellate court rejected the broader claim that those provisions violate zoning uniformity requirements. The fate of the town’s 2,500-foot separation requirement between cannabis dispensaries remains unresolved.

“The gist of it is, it’s a huge blow to Riverhead in terms of their arguments,” Reichert said Friday. “But the court left enough unanswered that the story continues.”

In response to the trial court’s 2025 decisions, Riverhead held a public hearing last August on a proposed one-year moratorium on new recreational cannabis businesses, but never adopted it.