On July 29, 2026, the New York State Appellate Division, Second Department issued an important decision addressing the relationship between New York’s statewide cannabis licensing framework and municipal zoning authority.
In Matter of 1086 OCR, LLC v. Town of Riverhead Zoning Board of Appeals, the Court affirmed a key victory for 1086 OCR LLC, Brian Stark Enterprises LLC, and Brian Stark. The petitioners/plaintiffs were represented by Twomey, Latham, Shea, Kelley, Dubin & Quartararo LLP attorney Martha F. Reichert, together with co-counsel Jason Klimek of Harris Beach Murtha and Benjamin R. Zakarin of Barclay Damon LLP.
The Second Department held that the Town of Riverhead’s local 1,000-foot school-buffer requirement for cannabis retail establishments is preempted by State law. Most importantly for the client, the Court agreed that no variance was required for the proposed adult-use retail dispensary at 1086 Old Country Road.
Background
Brian Stark Enterprises LLC holds a conditional retail dispensary license for a proposed adult-use cannabis dispensary at property owned by 1086 OCR LLC in Riverhead, NY that is located approximately 733 feet from Riverhead High School.
Under New York’s Cannabis Law, a cannabis retail dispensary may not be located within 500 feet of a school, with the distance measured from the center of the nearest entrance of the proposed licensed premises to the center of the nearest entrance of the school. Riverhead’s Town Code, however, imposed a more restrictive local requirement that prohibits cannabis retail establishments within 1,000 feet of a school, measured from the nearest property lines of the affected parcels.
The Riverhead Planning Department denied the application for a building and use permit based on the Town’s 1,000-foot requirement. Martha F. Reichert represented the petitioners before the Town of Riverhead Zoning Board of Appeals in connection with the variance application seeking relief from that requirement. The ZBA denied the variance application, and Twomey Latham thereafter commenced a hybrid Article 78 proceeding and declaratory judgment action challenging the denial and the local restriction.
The Supreme Court, Suffolk County, granted the petition, annulled the ZBA’s determination, declared Riverhead’s 1,000-foot school-buffer requirement preempted by State law, and held that no variance was required. Riverhead appealed.
The Second Department’s Ruling
The Second Department affirmed the Suffolk County Supreme Court’s the core preemption ruling. The Court explained that although local governments have broad police powers, those powers are limited by the preemption doctrine. Cannabis Law § 131(2) expressly preempts municipalities from adopting local laws pertaining to the operation or licensure of adult-use cannabis licenses, while preserving limited authority over time, place, and manner regulations that do not make the operation of licensed dispensaries unreasonably impracticable.
The Court held that the Legislature expressly stated its intent to occupy the field of operation of licensed adult-use retail dispensaries. It further held that the Cannabis Law specifically sets the school-distance requirement and how that distance must be measured. Because Riverhead’s 1,000-foot property-line buffer imposed additional restrictions on rights granted by State law, the Court held that Riverhead’s local requirement is preempted.
The practical result is significant: 1086 OCR LLC and Brian Stark Enterprises LLC do not need a variance from Riverhead’s local 1,000-foot school-buffer requirement to operate a cannabis retail dispensary at the property.
The Court did modify the Supreme Court’s judgment in one respect. It held that the challenged Riverhead Code provisions do not violate Town Law § 262’s uniformity requirement. That modification did not change the result for 1086 OCR and Stark because the Court affirmed on State-law preemption grounds.
The Related Tink Appeal
The Second Department issued a related decision the same day in Matter of Tink & E. Co., Inc. v. Town of Riverhead. In that case, Tink sought to operate a cannabis retail dispensary at a property located in Riverhead’s business center zoning district, adjacent to but outside Commercial Corridor Three. The property did not have frontage on Old Country Road and was located within 50 feet of a single-family residence. Riverhead denied Tink’s building and use permit application on the ground that a variance was required because the property was within 1,000 feet of an existing residence and was not located within Commercial Corridor Three.
The Supreme Court had previously ruled in favor of Tink, but the Second Department reversed. The Court held that Riverhead’s commercial-corridor and residential-setback structure did not violate Town Law § 262 because the Town had a reasonable basis for treating commercial-corridor parcels differently, including frontage and vehicular access along designated Suffolk County routes.
The Court further held that Tink needed a variance and that the ZBA’s denial of Tink’s variance application was not arbitrary and capricious. The Court found that Tink’s alleged hardship
was self-created because the Town Code did not permit operation of a cannabis retail dispensary without a variance when the lease was entered. The Court also found that the ZBA rationally concluded that the proposed use would alter neighborhood character given the property’s proximity to a single-family home and residential neighborhood and its lack of frontage on a commercial corridor.
Because Tink was not entitled to operate at its proposed location, the Second Department held that Tink’s challenge to Riverhead’s 2,500-foot dispensary-separation rule was academic and did not reach that issue.
Why the 1086 OCR Decision Matters
The 1086 OCR decision is an important ruling for cannabis licensees, property owners, landlords, investors, municipalities, and land-use practitioners.
First, the decision confirms that Cannabis Law § 131(2) has real preemptive force. Municipalities may retain limited authority to regulate certain local time, place, and manner issues, but they may not impose cannabis-specific siting restrictions that conflict with State law or add local barriers to State-approved dispensary locations.
Second, the decision distinguishes between ordinary zoning authority and local laws that function as additional cannabis licensing restrictions. A municipality may continue to enforce generally applicable zoning, building, fire, safety, site-plan, and land-use regulations. But where a local cannabis-specific rule imposes a stricter distance requirement than the Cannabis Law and prevents a State-approved dispensary from operating, that local rule may be preempted.
Third, the decision provides practical guidance for applicants facing local resistance. Where a municipality denies a building permit or requires a variance based on a local cannabis specific restriction that conflicts with State law, licensees and property owners may have a basis to challenge the restriction and seek declaratory relief.
Twomey Latham’s Role
Partner Martha F. Reichert and Co-Chair of Twomey Latham’s Land Use and Zoning Practice Group represented 1086 OCR LLC, Brian Stark Enterprises LLC, and Brian Stark before the Town of Riverhead Zoning Board of Appeals in connection with the underlying variance application. She continued to represent the petitioners/plaintiffs in the Supreme Court Article 78/declaratory judgment proceeding and in the Second Department appeal, working with co-counsel Jason Klimek of Harris Beach Murtha and Benjamin R. Zakarin of Barclay Damon LLP.
The matter required coordination of land-use, municipal, Article 78, appellate, and cannabis regulatory issues, including the interplay between Riverhead’s local zoning code and New York’s statewide adult-use cannabis licensing scheme.
Ms. Reichert’s work in the matter reflects Twomey Latham’s longstanding experience in complex land-use disputes, municipal litigation, Article 78 proceedings, appellate practice, and emerging issues involving the limits of local authority over State-regulated industries.
Conclusion
The Second Department’s decision in 1086 OCR provides an important clarification on state cannabis preemption of certain local laws in New York. For State-licensed cannabis businesses and property owners, the ruling confirms that local governments that participate in the State’s cannabis program may not use cannabis-specific school-buffer requirements to impose additional restrictions beyond those established by the Cannabis Law.
For municipalities, the decision is a reminder that local cannabis zoning provisions should be carefully reviewed against the Cannabis Law’s express preemption language and the State’s licensing framework.
For questions concerning cannabis licensing, municipal approvals, zoning, Article 78 proceedings, or land-use litigation, please contact Martha F. Reichert at Twomey, Latham, Shea, Kelley, Dubin & Quartararo LLP.
Prior results do not guarantee a similar outcome. This article is for informational purposes only and does not constitute legal advice.
