Matter of Tink & E. Co., Inc. v Town of Riverhead
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Brief Summary
This case concerns municipal zoning limits on cannabis retail dispensaries, including Riverhead's 1,000-foot separation from residential use properties and corridor-based exceptions, and whether those rules comply with Town Law § 262 [authorizes town boards to enact zoning regulations and requires that such regulations be uniform for each class or kind of buildings throughout the district].
The Supreme Court annulled the Town of Riverhead Zoning Board of Appeals (ZBA) denial of a variance, declared Town Code § 301-283.20(A)(4)'s 2,500-foot dispensary-to-dispensary spacing requirement preempted by state law, and declared Town Code § 301-283.20(A)(4) and (5) invalid under Town Law § 262.
The Appellate Division reversed the judgment insofar as appealed from, denied the amended petition, dismissed the CPLR article 78 proceeding, dismissed as academic the claims attacking Town Code § 301-283.20(A)(4), and directed entry of an amended judgment declaring that Town Code § 301-283.20(A)(5) does not violate Town Law § 262.
The court held that the commercial-corridor exception in Town Code § 301-283.20(A)(5) had a reasonable basis and therefore satisfied the uniformity requirement, and that the ZBA rationally denied the variance because the hardship was self-created and the proposed dispensary could alter the neighborhood's character.
Background
In 2022, Riverhead adopted zoning rules for cannabis retail establishments, later amending them in 2024 to expand permissible locations. Under Town Code § 301-283.20(A), dispensaries are allowed only in specified zoning districts and, as relevant here, may not be located within 1,000 feet of a residential use property unless the parcel is within one of five defined commercial corridors. Commercial corridor three includes only properties with frontage and vehicular access along a designated stretch of Old Country Road. In 2023, Elizabeth McGrath, on behalf of Tink & E. Co., Inc., leased a property in the business center zoning district that was adjacent to but outside commercial corridor three, lacked frontage on Old Country Road, and sat within 50 feet of a single-family residence. The Town Planning Department denied the permit application in October 2024, stating a variance was required. After a hearing, the ZBA denied the variance on February 13, 2025. During the resulting CPLR article 78 proceeding [special proceeding to review administrative action], nearby competing dispensary applicants intervened because Town Code § 301-283.20(A)(4) imposed a 2,500-foot separation requirement between dispensaries, and they argued that a variance for Tink could affect their own ability to operate.
Lower Court Decision
The Supreme Court, Suffolk County, effectively granted the amended petition, annulled the ZBA determination, and ruled that no variance was necessary because it declared the 2,500-foot spacing provision preempted by state law and declared Town Code § 301-283.20(A)(4) and (5) invalid under Town Law § 262. The court further held that, even if a variance were required, the ZBA's denial was arbitrary and capricious.
Appellate Division Reversal
The Appellate Division held that Town Code § 301-283.20(A)(5) is not invalid under Town Law § 262 because, although parcels in the same zoning district are treated differently, the record showed a reasonable basis for the distinction: the exempt commercial-corridor parcels are limited to properties with frontage and vehicular access along designated county routes. Because § 301-283.20(A)(5) is valid, the petitioners needed a variance. Assuming without deciding that the application was properly analyzed as a use variance under Town Law § 267-b(2)(b) [use variance requires proof of unnecessary hardship], the court found the ZBA's denial rational. The hardship was self-created because the code did not permit a dispensary at the leased property without a variance when McGrath signed the lease, and her belief that future amendments might help was insufficient. The ZBA also rationally found that the proposed use could alter neighborhood character due to the site's proximity to a single-family home and residential neighborhood and its lack of frontage on a commercial corridor. Because the petitioners were not entitled to operate at the site regardless of Town Code § 301-283.20(A)(4), the challenges to that subsection were academic, so the court did not reach the preemption or uniformity arguments regarding the 2,500-foot rule.
Legal Significance
The decision reinforces that Town Law § 262's uniformity requirement does not prohibit all differential treatment within a zoning district; it allows distinctions supported by a reasonable, record-based land-use rationale. It also confirms the deference appellate courts give local zoning boards in variance matters and underscores that a cannabis applicant who leases property knowing a variance is required may face a finding of self-created hardship. The ruling leaves unresolved, because academic here, whether Riverhead's 2,500-foot dispensary separation rule is preempted by state cannabis law.
A municipality may create corridor-based exceptions for cannabis dispensaries without violating Town Law § 262 if the distinction has a reasonable zoning basis, and a dispensary applicant cannot overturn a variance denial where the hardship was self-created and the board had a rational basis to find neighborhood impacts.