[co-author: Terran Cooper]
A recent decision in the New York State Supreme Court has significant implications for the local regulation of adult-use cannabis dispensaries in New York. Tink & E. Co. (hereafter, “Tink”), an adult-use retail dispensary applicant, and others, filed suit against the Town of Riverhead and various governmental authorities in connection with the Town of Riverhead’s local zoning restrictions. In a landmark decision, the court invalidated a number of local zoning rules placed upon retail cannabis dispensaries paving the way for Tink to move forward.
The dispute focused on the property at 1201 Ostrander Avenue in Riverhead, which Tink intended to use as an adult-use retail dispensary. Tink applied for and was denied a variance by the Town of Riverhead, under its local zoning rules which imposed a 2,500-foot buffer for certain properties lacking direct frontage on particular roads. However, the court found that the Town of Riverhead’s 2,500-foot buffer rule was preempted by NYS law. The court found that the Marijuana Regulation and Taxation Act (“MRTA”) and corresponding regulations by the Office of Cannabis Management (“OCM”) set the 1,000-foot buffer requirement between dispensaries and, further, that the State has reserved the right to regulate the legal cannabis industry. Consequently, local governments are thus prohibited from enacting conflicting rules.
Additionally, the court struck down the Town of Riverhead’s local rule prohibiting dispensaries from being within 1,000 feet of any existing residential use, except those properties with frontage along and located within Commercial Corridors One, Two, Three, Four and Five. Regarding this local restriction, the court found it to be invalid in that under Town Law Sec. 262, zoning measures and ordinances must be applied uniformly within the same zoning district. The Town of Riverhead established five commercial corridors where commercial property may pursue licensure for a cannabis dispensary even where there is no distance between it and a residential lot line. According to the court, this restriction must be applied equally to all properties within the commercial corridor. With the subject property lacking direct frontage on Old Country Road, the Town of Riverhead required a variance where it would otherwise not have (if the subject property included direct frontage).
This case is quite significant for the adult-use cannabis industry, particularly those in regions with significant local zoning restrictions such as Long Island. The Court in this case reiterates the power of New York State in regulating the adult-use cannabis market and is likely to be cited in many cases to come. For local municipalities, this case emphasizes the importance of equal application of zoning rules across zoning districts and the limits of local zoning requirements. It is also a reminder that a municipality must be mindful in building their time, place, and manner restrictions relating to retail cannabis locations so as not to have them deemed unreasonably improvident. And for cannabis dispensaries, this decision may further clarify the buffer requirements and lead to a greater availability of sites in the future. As New York’s legal cannabis market continues to develop, this case sets an important precedent in the balance of state and local authority.
