1086 OCR LLC LLC BRIAN STARK v. THE TOWN OF RIVERHEAD THE TOWN BOARD OF THE TOWN OF RIVERHEAD COMPRISING OF TIMOTHY HUBBARD IN HIS CAPACITY AS TOWN SUPERVISOR KENNETH ROTHWELL IN HIS CAPACITY AS COUNCILMAN BOB KERN IN HIS CAPACITY AS AS COUNCILMAN DENISE MERRIFIELD IN HER CAPACITY AS COUNCILWOMAN JOANN WASKI IN HER CAPACITY AS COUNCILWOMAN GREG BERGMAN IN HIS CAPACITY AS SENIOR PLANNER FOR THE TOWN OF RIVERHEAD GREG BERGMAN IN HIS CAPACITY AS ZONING OFFICER FOR THE TOWN OF RIVERHEAD ANDREAS SOFOKLIS IN HIS CAPACITY AS CHIEF BUILDING INSPECTOR FOR THE TOWN OF RIVERHEAD INTERESTED PARTY THE NEW YORK STATE OFFICE OF CANNABIS MANAGEMENT INTERESTED PARTY THE NEW YORK STATE CANNABIS CONTROL BOARD (2025)

Upon the following papers read on plaintiffs-petitioners motion for a declaratory judgment and for a judgment pursuant to Article 78: NYSCEF documents 1 thru 36; it is hereby

ORDEREDthat the Riverhead Town Code § 301-283.20 A (1)'s 1000-foot buffer between any cannabis retail business and any school is legally invalid as preempted by New York State Law 9 NYCRR § 119.1 (A) (2) and Cannabis Law §§ 131 (2), and 72 (6) which sets the distance as 500 feet. The distance shall be measured pursuant to the Office of Cannabis Management July 28, 2025, recent guidance as measured from the school's property line not the entrance of a building (see Cannabis Law § 72 (6); and it is

ORDERED that the Riverhead Town Code § 301-283.20 (1), (4), and (5) are legally invalid and void in violation of Town Law § 262; and it is

ORDERED that petitioner's application to vacate the Riverhead Town Zoning Board's decision of June 12, 2025, is granted as no variance is required for property 735 feet from the property line of a school; and it is

Petitioners bring a hybrid Article 78 and declaratory judgment action seeking to set aside a denial of a variance application by the respondent Riverhead Zoning Board of Appeals, dated June 12, 2025, and to allow the subject property located at 1086 Old Country Road, Riverhead, New York to be used as a retail cannabis dispensary. Significantly, the subject property has a license from the New York State Office of Cannabis Management to operate an adult-use dispensary at that location. That is to say, the State of New York has granted petitioner proximity protection for the subject property located at 1086 Old Country Road, Riverhead, New York 11901 (Attorney General's verified answer at page 5, paragraph 18). Moreover, the subject property is within the Town of Riverhead's Commercial Corridor Three, in which a retail cannabis dispensary is permitted.

In November of 2022, the Town of Riverhead revised its zoning to allow for retail cannabis in the Town. Thereafter, the 2022 zoning was found to be too restrictive as there were only five properties that might qualify for a dispensary site. In 2024 the zoning code was revised with the adoption of Town Code § 301-283.20 (A) (1), (4) and Town Code § 301-283.20 (A) (5), which apply to all five commercial zoning corridors in the Town. (A) (1) of the Code set a 1000-foot distance requirement between retail cannabis dispensary locations and any school. While New York's constitutional home rule provision (NY Const., art. IX, § 2 [c]) "confers broad police powers upon local governments relating to the welfare of its citizens" (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96, 524 NYS2d 8 [1987]), it is well established that a Town cannot adopt laws that are inconsistent with the Constitution or with any general law of the State (Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500, 577 NYS2d 215 [1991]; NY Const. art. IX, § 2[c]). The power of local governments to enact laws is subject to the fundamental limitation of the preemption doctrine. State preemption occurs in one of two ways-first when a local government adopts a law that directly conflicts with a New York State statute and second, when a local government legislates in a field for which the State legislature has assumed full responsibility (DJL Rest. Corp. v City of New York, 96 NY2d 91, 725 NYS2d 622 [2001]).

Here, the Town of Riverhead did not "opt out" of the Marihuana Regulation & Taxation Act, Chapter 92 of the Laws of 2021, which is now known as Cannabis Law § 1. In other words, the Town of Riverhead expressly permitted the establishment and operation of cannabis businesses within the Town of Riverhead. Those businesses are governed by the rules and regulations created by the Office of Cannabis Management. Under the Cannabis Law and State regulations, a Town's lawmaking and regulatory authority with respect to New York State licensed businesses is expressly preempted to eight specific items listed in 9 NYCRR § 119.2. These time, place, and manner restriction contained in Cannabis Law § 131 permit restrictions of:

(i) Retail dispensary hours of operation (§ 119.2 (a) (1)-(2);

(ii) On-site consumption hours (§ 119.2 (a) (3)-(4);

(iii) The visual or architectural integrity of the building if located within historic districts (§ 119.2 (a) (5);

(iv) Parking (§ 119.2 (a) (6);

(v) Traffic control, including, but not limited to, pedestrian and vehicular traffic (§ 119.2 (a) (7);

(vi) Odor, except as preempted by 119.1 (b) (119.2 (a) (8);

(vii) Noise (§ 119.2 (a) (9);

(viii) Distance requirements between the retain dispensary, microbusiness, or ROD and public youth facility, provided that such distance is no greater than 500 feet from the retail dispensary, microbusiness, or ROD (§ 119.2 (a) (10).

(ix)

The State of New York has directly addressed the distance requirement of any retail cannabis business prohibiting it from being within 500 feet of any school. The Town of Riverhead's attempt to address the distance between cannabis dispensaries and schools at 1000 feet under Town Code § 301-283.20 (A) (1) is preempted by State Law 9 NYCRR § 119.1 and § 119.4 which sets the required distance at 500 feet (Sunrise Check Cashing and Payroll services, Inc., v Town of Hempstead, 91 AD3d 126, 933 NYS2d 388 [2d Dept 2011], aff'd sub nom. Sunrise Check Cashing v Town of Hempstead, 20 NY3d 481, 964 NYS2d 64 [2013]).

On March 31, 2021, the State of New York signed into law The Marijuana Regulation and Taxation Act and declared in its Preamble "it is in the best interest of the state to regulate the legal cannabis industry" expressing a specific intent of the State of New York to regulate this industry. Rules and regulations were drafted under the Office of Cannabis Management and expressly provide that local governments are "preempted from adopting any law, rule, ordinance, regulation, or prohibition pertaining to the operation or licensure of . . . ..adult-use cannabis licenses." Accordingly, it is the State of New York which regulates this industry, not the Town of Riverhead.

Riverhead Town Code § 301-283.20 (A) is also invalid as it is in direct conflict with Town Law § 262, which requires that zoning measures and ordinances be applied uniformly within the same zoning district. Owners of property in the same district should be treated alike and without discrimination (Tuxedo Land Trust, Inc. v Town of Tuxedo, 34 Misc 3d 1235 (A), 950 NYS2d 611 [Sup 2012] aff'd 112 AD3d 726, 977 NYS2d 272 [2d Dept 2013]). Town Law § 262 requires that "zoning regulations shall be uniform for each class or kind of buildings throughout each zoning district." Here, the Town of Riverhead established five commercial corridors where commercial property may pursue licensure for a cannabis dispensary as of right even when there is a zero-foot distance between it and a residential lot line. That Code allowance must be applied to all properties within the commercial corridor equally. The separation distances and other setback requirements of Riverhead Town Code §§ 301-283.20 (A) (1), (4), and (5) violate the uniformity requirements in Town Law § 262. They both lack uniformity and are discriminatory. As such, Riverhead Town Code § 301-283.20 (A) (1), (4), and (5) are invalid as a matter of law. All property within the zoning district must be treated uniformly.

This Court holds that no variance is required by petitioners and that they may proceed with the process of obtaining a building permit and a certificate of occupancy. Accordingly, this Court need not reach the issue of whether the denial of the variance was arbitrary and capricious.

Local zoning boards have broad discretion in considering applications for variances, and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion (see Matter of Ifrah v Ultschig, 98 NY2d 304, 746 NYS2d 667 [2005]; Matter of Fuhst v Foley, 45 NY2d 441, 410 NYS2d 56 [1978]; Matter of Miller v Town of Brookhaven Zoning Board of Appeals, 74 AD3d 1343, 904 NYS2d 199 [2d Dept 2010]). Thus, the determination of a zoning board will be upheld if it is rational and not arbitrary and capricious (see Matter of Sasso v Osgood, 86 NY2d 374, 633 NYS2d 259 [1995]; Matter of JSB Enterprises v Wright, 8l AD3d 955, 917 NYS2d 302 [2d Dept]; Matter of Caspian v Zoning Board of Appeals, 68 AD3d 62, 67, 886 N YS2d 442 [2d Dept 2009]). A determination is rational "if it has some objective factual basis, as opposed to resting entirely on subjective considerations such as general community opposition" (Matter of Caspian v Zoning Board of Appeals, supra quoting Matter of Halperin v City of New Rochelle, 24 AD3d768, 772, 809 NYS2d 98 [2d Dept 2005]; see Matter of JSB Enterprises v Wright, supra). Where a rational basis for the determination exists, "a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record" (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190, 196, 746 NYS2d 662 [2002]; see Matter of Gebbie v Mammina, 13 NY3d 728, 885 NYS2d 450 [2009]; Matter of Roberts v Wright, 70 AD3d 1041, 896 NYS2d 124 [2010]; Matter of Monroe Beach Inc v Zoning Bd of Appeals of City of Long Beach, 71 AD3d 1150, 898 NYS2d 194 [2d Dept 2010]).

While not reaching the issue, the Court makes no finding that the Riverhead Zoning Board of Appeals demonstrated a fundamental bias against cannabis or engaged in subjective consideration based upon personal feelings and generalized opposition, as opposed to a careful review of the Town Law § 267-b (3) factors. The Court has considered the late opposition and answer by respondents filed at 11:26 p.m. on the return date of the parties' stipulation, had the Court not considered the late answer, the defaulting respondent Town and individual members of the board would have been deemed admitting to the allegations of the petition (21st Mtge. Corp. v Raghu, 197 AD3d 1212, 154 NYS3d 84 [2d Dept 2021]).

Accordingly, the petition herein is granted.

E N T E R :

Hon. Paul M. Hensley

Justice of the Supreme Court

Date: September 16, 2025

Riverhead, New York

Paul M. Hensley, J.