IN RE: 1086 OCR (2026)

Argued—June 2, 2026

DECISION & ORDER

Q/

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Town of Riverhead Zoning Board of Appeals dated June 12, 2025, which, after a hearing, denied the application of the petitioners/plaintiffs 1086 OCR, LLC, and Brian Stark Enterprises, LLC, for an area variance, and action for declaratory relief, the appeal is from a judgment of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated September 16, 2025.  The judgment granted the petition, annulled the determination, declared that so much of Code of the Town of Riverhead § 301–283.20(A)(1) as provides that a cannabis retail establishment may not be located within 1,000 feet of a school is preempted by state law, and declared that Code of the Town of Riverhead § 301–283.20(A)(1), (4), and (5) are invalid and void as violative of Town Law § 262.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof declaring that Code of the Town of Riverhead § 301–283.20(A)(1), (4), and (5) are invalid and void as violative of Town Law § 262;  as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an amended judgment, inter alia, declaring that Code of the Town of Riverhead § 301–283.20(A)(1), (4), and (5) do not violate Town Law § 262.

The petitioner/plaintiff Brian Stark Enterprises, LLC (hereinafter Stark Enterprises), holds a conditional retail dispensary license to operate a cannabis dispensary at certain property owned by the petitioner/plaintiff 1086 OCR, LLC (hereinafter the owner), located in the Town of Riverhead.  The property is located approximately 733 feet from Riverhead High School.  Cannabis Law § 72 prohibits a cannabis retail dispensary from locating within 500 feet of a school (see id. § 72[6][a];  former § 72[6] ), as measured from the center of the nearest entrance of the premises sought to be licensed to the center of the nearest entrance of the school (see id. § 72[6][c] ).  Code of the Town of Riverhead (hereinafter Town Code) § 301–283.20(A)(1) purports to set that minimum distance at 1,000 feet, measured from the nearest property lines of each affected parcel.

The Town of Riverhead Planning Department denied an application for a building and use permit to operate a cannabis retail dispensary at the property because it was located within 1,000 feet of a school, as measured by the Town Code. Stark Enterprises, of which the petitioner/plaintiff Brian Stark is a member, and the owner applied to the Town of Riverhead Zoning Board of Appeals (hereinafter the ZBA) for an area variance for relief from Town Code § 301–283.20(A)(1).  After a hearing, in a determination dated June 12, 2025, the ZBA denied the application.

The petitioners/plaintiffs commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination and action for declaratory relief against the ZBA, the Town, the Town Board of the Town of Riverhead, and certain Town officials in their official capacities (hereinafter collectively the municipal respondents), the New York State Office of Cannabis Management, and the New York State Cannabis Control Board (hereinafter the board).  The petitioners sought declarations that so much of Town Code § 301–283.20(A)(1) as provides that a cannabis retail establishment may not be located within 1,000 feet of a school is preempted by state law and that Town Code § 301–283.20(A)(1), (4), and (5) violate the uniformity requirement of Town Law § 262 and are void.  Town Code § 301–283.20(A)(4) requires 2,500 feet between cannabis establishments and precludes more than one such establishment in certain commercial corridors of the Town. Town Code § 301–283.20(A)(5) prohibits a cannabis establishment from locating within 1,000 feet of an existing residential property, except for properties with frontage along and located within one of five commercial corridors.

In a judgment dated September 16, 2025, the Supreme Court granted the petition, annulled the determination, declared that so much of Town Code § 301–283.20(A)(1) as provides that a cannabis establishment may not be located within 1,000 feet of a school is preempted by state law, and declared that Town Code § 301–283.20(A)(1), (4), and (5) are invalid and void as violative of Town Law § 262.  In light of its declarations, the court determined that no variance was necessary.  The municipal respondents appeal.

“Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the state” (People v. Torres, 37 NY3d 256, 265 [internal quotation marks omitted] ).  Thus, the law-making power conferred upon local governments, albeit broad, is limited by the preemption doctrine (see id.;  Albany Area Bldrs.  Assn. v Town of Guilderland, 74 N.Y.2d 372, 377).  “State law can preempt local law in one of two ways:  either through conflict preemption, which occurs when the local and state laws directly conflict, or field preemption, which occurs when a local government legislates in a field for which the State Legislature has assumed full regulatory responsibility” (Glen Oaks Vil. Owners, Inc. v. City of New York, 44 NY3d 468, 473 [internal quotation marks omitted];  see Woodbury Hgts. Estates Water Co., Inc. v Village of Woodbury, 111 AD3d 699, 700).

“The Legislature may expressly state its intent to preempt, or that intent may be implied from the nature of the subject matter being regulated as well as the scope and purpose of the state legislative scheme, including the need for statewide uniformity in a particular area.  A comprehensive and detailed statutory scheme may be evidence of the Legislature's intent to preempt” (Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d 395, 400;  see Glen Oaks Vil. Owners, Inc. v City of New York, 44 NY3d at 473).  Courts will examine “whether the State has acted upon a subject and whether, in taking action, it has demonstrated a desire that its regulations should preempt the possibility of discordant local regulations” (Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d at 400;  see Glen Oaks Vil. Owners, Inc. v City of New York, 44 NY3d at 473–474).  “Once it has been determined that the State has preempted an entire field, a local law regulating the same subject matter is deemed inconsistent with the State's overriding interests because it either (1) prohibits conduct which the State law, although perhaps not expressly speaking to, considers acceptable or at least does not proscribe or (2) imposes additional restrictions on rights granted by State law” (Glen Oaks Vil. Owners, Inc. v. City of New York, 44 NY3d at 474 [internal quotation marks omitted];  see Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 97).

As part of the Marihuana Regulation and Taxation Act of 2021, the Legislature enacted Cannabis Law § 131(2), which expressly provides that, with an exception not relevant here, “all county, town, city and village governing bodies are hereby preempted from adopting any law, rule, ordinance, regulation or prohibition pertaining to the operation or licensure of ․ adult-use cannabis licenses․  However, towns, cities and villages may pass local laws and regulations governing the time, place and manner of the operation of licensed adult-use cannabis retail dispensaries and/or on-site consumption site, provided such law or regulation does not make the operation of such licensed retail dispensaries or on-site consumption sites unreasonably impracticable as determined by the board.”  Thus, the Legislature has expressly stated its intent to occupy the field of the operation of licensed adult-use cannabis retail dispensaries.  Moreover, although the Legislature allowed for local regulation of time, place, and manner of the operation of such businesses, it has specifically set the distance of such dispensaries from a building containing a school and provided the manner in which to measure that distance (see id. § 72[6][a], [c] ).  So much of Town Code § 301–283.20(A)(1) as purports to set that distance as 1,000 feet as measured from the property line imposes additional restrictions on rights granted by state law, is inconsistent with the State's overriding interest, and is therefore preempted by the state law (see Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 N.Y.2d at 402–403;  Woodbury Hgts. Estates Water Co., Inc. v Village of Woodbury, 111 AD3d at 703;  Matter of Chwick v. Mulvey, 81 AD3d 161, 171–172).  In light of this determination, we need not reach the parties' remaining contentions regarding whether regulations adopted by the board preempt the Town Code and whether such regulations were properly enacted.

As set forth in a related appeal decided herewith, Town Code § 301–283.20(A)(5) does not violate the uniformity requirement of Town Law § 262 (see Matter of Tink & E. Co., Inc. v Town of Riverhead, _ AD3d _ [decided herewith] ).  For similar reasons, we find that Town Code § 301–283.20(A)(1) and (4) comply with the uniformity requirements of Town Law § 262.  Accordingly, the Supreme Court erred in declaring that Town Code § 301–283.20(A)(1), (4), and (5) are invalid and void as violative of Town Law § 262 (see Matter of Tink & E. Co., Inc. v Town of Riverhead, _ AD3d _).

In light of the foregoing, the Supreme Court properly determined that the petitioners did not need a variance to operate a cannabis establishment at the property.

BRATHWAITE NELSON, J.P., WARHIT, HOM and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court