IN RE: Tink & E. Co. (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 February 13, 2025, which, after a hearing, denied the application of the petitioners/plaintiffs Tink & E. Co., Inc., and Elizabeth McGrath for a variance, and action for declaratory relief, the Town of Riverhead, the Town of Riverhead Zoning Board of Appeals, and the Town of Riverhead Planning Department appeal from a judgment of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated July 23, 2025.  The judgment, insofar as appealed from, in effect, granted the amended petition, annulled the determination, declared that so much of Code of the Town of Riverhead § 301–283.20(A)(4) as requires 2,500 feet between cannabis retail dispensaries is invalid as preempted by state law, and declared that Code of the Town of Riverhead § 301–283.20(A)(4) and (5) are invalid and void as violative of Town Law § 262.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with one bill of costs payable by the petitioners/plaintiffs to the respondents/defendants appearing separately and filing separate briefs, the amended petition is denied, the proceeding is dismissed, so much of the second cause of action as sought a judgment declaring that so much of Code of the Town of Riverhead § 301–283.20(A)(4) as requires 2,500 feet between cannabis retail dispensaries is invalid as preempted by state law and that Code of the Town of Riverhead § 301–283.20(A)(4) is invalid and void as violative of Town Law § 262 is dismissed, 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)(5) does not violate Town Law § 262.

In 2022, the Town of Riverhead enacted provisions of the Code of the Town of Riverhead (hereinafter Town Code) relating to land use and zoning for cannabis retail establishments.  In 2024, the Town Code was amended to expand the permissible locations for cannabis retail establishments.  As amended, Town Code § 301–283.20(A) provides that cannabis retail establishments shall be permitted only in certain zoning districts, including, as relevant here, the business center zoning district, subject to certain requirements, including that the cannabis establishment not be located within 1,000 feet of a residential use property (hereinafter the 1,000–foot requirement) (see id. § 301–283.20[A][5] ).  The Town Code provides an exception from the 1,000–foot requirement for properties located in one of five commercial corridors (see id. §§ 301–283.19, 301–283.20[A][5] ).  As relevant here, commercial corridor three consists of a certain stretch of Old Country Road and “shall include only those properties with frontage and vehicular access along the commercial corridor and meet the criteria set forth in § 301–283.20” (id. § 301–283.19).

In 2023, the petitioner/plaintiff Elizabeth McGrath, on behalf of the petitioner/plaintiff Tink & E. Co., Inc. (hereinafter Tink), entered into a lease for certain commercial real property located in the Town's business center zoning district and adjacent to, but outside of, commercial corridor three.  The property does not have frontage on Old Country Road and is located within 50 feet of a single-family residence.  McGrath applied for a building and use permit to operate a cannabis retail dispensary at the property.  In October 2024, the Town of Riverhead Planning Department (hereinafter the Town Planning Department) denied the application on the ground that a variance was needed because the property was located within 1,000 feet of an existing residence and it was not within commercial corridor three.  Thereafter, McGrath and Tink applied to the Town of Riverhead Zoning Board of Appeals (hereinafter the ZBA) for a variance.  After a hearing, in a determination dated February 13, 2025, the ZBA denied the application.

The petitioners/plaintiffs, McGrath, Tink, and owners of the property, commenced this proceeding pursuant to CPLR article 78 to review the ZBA's determination.  While this proceeding was pending, 1086 OCR, LLC, Brian Stark Enterprises, LLC, and Brian Stark (hereinafter collectively the interveners) moved for leave to intervene in the proceeding and to compel the addition of the New York State Office of Cannabis Management as a necessary party.  The interveners asserted an interest in operating a cannabis retail dispensary at a property located approximately 1,607 feet from the location where Tink and McGrath sought to operate a cannabis retail dispensary.  Town Code § 301–283.20(A)(4) restricts cannabis retail dispensaries from operating within 2,500 feet from one another.  The interveners asserted that if the petition were granted and the petitioners/plaintiffs received a variance to operate a cannabis retail dispensary, the interveners would be harmed because Town Code § 301–283.20(A)(4) would restrict them from operating a cannabis retail dispensary at their property.  The Supreme Court granted the interveners' motion.

The petitioners/plaintiffs then filed an amended petition/complaint, which included a second cause of action, seeking a judgment declaring, inter alia, that so much of Town Code § 301–283.20(A)(4) as requires 2,500 feet between cannabis retail dispensaries is preempted by state law and that Town Code §§ 301–283.20(A)(4) and (5) are invalid and void as violative of Town Law § 262.  In a judgment dated July 23, 2025, the Supreme Court, among other things, in effect, granted the amended petition, annulled the ZBA's determination, declared that so much of Town Code § 301–283.20(A)(4) as requires 2,500 feet between cannabis retail dispensaries is preempted by state law, and declared that Town Code § 301–283.20(A)(4) and (5) are invalid and void as violative of Town Law § 262.  The court determined that no variance was necessary in light of its declarations and, in any event, that the denial of the variance was arbitrary and capricious.  The Town, the ZBA, and the Town Planning Department (hereinafter collectively the municipal respondents) appeal.

Town Law § 262 authorizes town boards to enact zoning regulations, but requires that “[a]ll such regulations shall be uniform for each class or kind of buildings, throughout such district.”  “The uniformity requirement is intended to assure property holders that all owners in the same district will be treated alike and that there will be no improper discrimination” (Matter of Augenblick v. Town of Cortlandt, 104 A.D.2d 806, 814 [Lazer, J.P., dissenting], revd for reasons stated in dissent 66 N.Y.2d 775;  see Tupper v. City of Syracuse, 93 AD3d 1277, 1281).  “The likelihood of overreaching is thus reduced because the legislative body preapproves the uses permitted in a district without reference to particular owners” (Matter of Augenblick v. Town of Cortlandt, 104 A.D.2d at 814).  This rule is not absolute, however, as “the uniformity rule may be bent” where “specialized circumstances exist for certain property within a district” (id.).  Thus, “[a]n ordinance will be held to uniformity if the record does not disclose any reasonable basis for different treatment among similar parcels within a district” (id. at 814;  see Matter of Tampone v. Town of Red Hook Town Bd., 215 AD3d 863, 865).

Contrary to the Supreme Court's determination, Town Code § 301–283.20(A)(5) does not violate the uniformity requirement, as this subsection is uniform for each class or kind of buildings throughout each zoning district.  Town Code § 301–283.20(A)(5) does treat parcels in the same zoning district differently, as those parcels that are located in a commercial corridor are exempt from the requirement that cannabis establishments may not be operated within 1,000 feet of a residential use property.  However, the record discloses that the Town had a reasonable basis for the differential treatment of these parcels, as each commercial corridor includes only properties with frontage and vehicular access along designated portions of certain Suffolk County routes (see id. § 301–283.19).  Since there is a reasonable basis for differing treatment among the parcels within the business center zoning district, Town Code § 301–283.20(A)(5) does not violate Town Law § 262 (see Matter of Tampone v. Town of Red Hook Town Bd., 215 AD3d at 866;  Matter of Augenblick v. Town of Cortlandt, 104 A.D.2d at 814).

Since Town Code § 301–283.20(A)(5) is valid, a variance is needed for the operation of a cannabis retail dispensary at the subject property.  Contrary to the petitioners'/plaintiffs' contention, the ZBA's determination denying the application of Tink and McGrath for a variance was not 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” (Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308;  see Matter of 790 Holdings Corp. v Board of Appeals of the Town of Hempstead, 237 AD3d 924, 925).  “In applying the arbitrary and capricious standard, a court inquires whether the determination under review had a rational basis.  Under this standard, a determination should not be disturbed unless the record shows that the agency's action was arbitrary, unreasonable, irrational or indicative of bad faith” (Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d 1118, 1119 [internal quotation marks omitted];  see Matter of Cowan v. Kern, 41 N.Y.2d 591, 599).

The ZBA analyzed the application for a variance as one for a use variance, and the petitioners/plaintiffs contend that they have met their burden under such an analysis.  Thus, we assume without deciding that this is the proper standard for analyzing the subject application for a variance.  In order to qualify for a use variance, the proponent of the variance must establish that the use of the property as zoned creates an “unnecessary hardship” (Town Law § 267–b[2][b] ).  An unnecessary hardship exists where (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship results from the unique characteristics of the property, (3) the proposed use would not alter the essential character of the neighborhood, and (4) the alleged hardship was not self-created (see id.;  Matter of Brennan v. Hobbs, 193 AD3d 725, 726).

Here, contrary to the Supreme Court's determination, the petitioners/plaintiffs failed to establish that the alleged hardship was not self-created, as the Town Code did not permit the operation of a cannabis retail dispensary without a variance when McGrath entered into the lease for the property.  The petitioners'/plaintiffs' reliance on McGrath's belief that the Town Code was in the process of being amended and could permit such use at the property when she entered into the lease is unavailing.  Further, the ZBA's determination that the proposed use would alter the character of the neighborhood was rational in light of the property's close proximity to a single-family home and residential neighborhood, together with the property's lack of frontage on a commercial corridor.

Accordingly, the ZBA's determination denying the application for a use variance was not illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Hammer v. Town of Bedford N.Y., 242 AD3d 747, 749;  Matter of Gasparini v Zoning Bd. of Appeals of the Town of Newburgh, 222 AD3d 644, 646).

Since the petitioners/plaintiffs are not entitled to operate a cannabis retail dispensary at the property without regard to application of Town Code § 301–283.20(A)(4), so much of the second cause of action as sought a judgment declaring that so much of Town Code § 301–283.20(A)(4) as requires 2,500 feet between cannabis retail dispensaries is invalid as preempted by state law and that Town Code § 301–283.20(A)(4) is invalid and void as violative of Town Law § 262 is academic, and we do not reach the merits of the parties' contentions with respect to those issues.

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

ENTER:

Darrell M. Joseph

Clerk of the Court