RIVERHEAD, NEW YORK — Twomey, Latham, Shea, Kelley, Dubin & Quartararo LLP is pleased to announce a significant appellate victory on behalf of 1086 OCR LLC, Brian Stark Enterprises LLC, and Brian Stark in a closely watched cannabis land-use and preemption dispute before the New York State Appellate Division, Second Department.

In Matter of 1086 OCR, LLC v. Town of Riverhead Zoning Board of Appeals, the Second Department affirmed that the Town of Riverhead could not enforce its local 1,000-foot school-buffer requirement against the proposed adult-use retail cannabis dispensary at 1086 Old Country Road. The Court held that the Town’s local requirement was preempted by State law because the Cannabis Law establishes the applicable school-distance standard and measurement methodology for licensed adult-use retail dispensaries.

As a result, the Appellate Division agreed that petitioners 1086 OCR LLC and Brian Stark Enterprises LLC do not need a variance from Riverhead’s local 1,000-foot school-buffer requirement to proceed with the dispensary at the State-approved location.

The decision is important for New York’s emerging adult-use cannabis industry because it confirms that municipalities that did not opt out of the State cannabis program may not impose cannabis-specific local restrictions that conflict with rights granted under the Cannabis Law.

Martha F. Reichert, a partner at Twomey Latham and Co-Chair of its 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 and continued to represent the petitioners/plaintiffs in the subsequent Article 78/declaratory judgment litigation and appeal.

“This decision provides needed clarity for State-licensed cannabis operators and property owners navigating local land-use approvals,” said Martha F. Reichert. “The Second Department recognized that Riverhead’s local 1,000-foot school-buffer requirement imposed an additional restriction on a State-approved dispensary location. The ruling confirms that local zoning authority has limits where the Legislature has created a comprehensive State licensing framework.”

The appeal arose after the Town of Riverhead denied a building and use permit application for a proposed adult-use retail cannabis dispensary at 1086 Old Country Road on the ground that the property was located within 1,000 feet of a school under the Town Code. The applicants sought relief from the Riverhead Zoning Board of Appeals, which denied the variance application. Twomey Latham then challenged the determination in a hybrid Article 78 proceeding and declaratory judgment action.

The Supreme Court, Suffolk County, granted the petition and annulled the ZBA’s determination. On appeal, the Second Department affirmed the core preemption ruling and held that no variance was required.

The Second Department issued a related decision the same day in Matter of Tink & E. Co., Inc. v. Town of Riverhead. In that case, the Court reversed the Supreme Court’s ruling in favor of Tink, upheld the ZBA’s denial of Tink’s variance application, and held that Tink was not entitled to operate a cannabis retail dispensary at its proposed location. The Court, therefore, did not reach the merits of the challenge to Riverhead’s 2,500-foot dispensary separation requirement.

Ms. Reichert’s role in the matter spanned the local zoning board proceedings, Supreme Court litigation, and appellate proceedings, reflecting Twomey Latham’s continued work at the intersection of municipal law, land use, zoning, Article 78 practice, appellate advocacy, and New York’s developing cannabis regulatory framework.

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About Twomey Latham
Twomey, Latham, Shea, Kelley, Dubin & Quartararo LLP is a full-service law firm based on Long Island, representing businesses, individuals, municipalities, property owners, developers, and regulated entities in litigation, land use, zoning, real estate, corporate, estate planning, and related matters.