Cannabis Law § 72 School-Setback Is a Statewide Ceiling: Municipalities May Not Expand the Distance or Alter Measurement for Licensed Dispensaries

1. Introduction

In Matter of 1086 OCR, LLC v Town of Riverhead Zoning Bd. of Appeals (2026 NY Slip Op 04763), the Appellate Division, Second Department, addressed the extent to which a town may use zoning to regulate where a state-licensed adult-use cannabis retail dispensary may operate. The petitioners/plaintiffs, 1086 OCR, LLC (property owner) and Brian Stark Enterprises, LLC (licensee), sought to operate a dispensary at property approximately 733 feet from Riverhead High School.

The central issues were:

  • Whether the Town of Riverhead could enforce a local rule requiring cannabis retail establishments to be at least 1,000 feet from a school (measured property-line-to-property-line), notwithstanding Cannabis Law § 72, which sets a 500-foot limit (measured entrance-center-to-entrance-center).
  • Whether certain Town Code spacing and residential-buffer provisions violated the uniformity requirement of Town Law § 262.

Procedurally, the matter came as a hybrid CPLR article 78 proceeding challenging the ZBA’s denial of an area variance and an action for declaratory relief against municipal respondents and state cannabis regulators.

2. Summary of the Opinion

The Second Department affirmed the Supreme Court’s key holding that the Town’s 1,000-foot school setback, and its alternative measurement method, are preempted by state law—but modified the judgment to reject the Supreme Court’s separate conclusion that Town Code § 301-283.20(A)(1), (4), and (5) are invalid under Town Law § 262.

The court held:

  • Preemption: “So much of” Code of the Town of Riverhead § 301-283.20(A)(1) as sets a 1,000-foot school distance (measured from property lines) is preempted by Cannabis Law § 72 and Cannabis Law § 131(2).
  • Uniformity: Town Code § 301-283.20(A)(1), (4), and (5) do not violate the uniformity requirement of Town Law § 262 (relying on the related decision Matter of Tink & E. Co., Inc. v Town of Riverhead).
  • Variance unnecessary: Because the school-setback provision was preempted, the petitioners did not need a variance to proceed at the site (at least as to the school-distance issue).

3. Analysis

A. Precedents Cited

The court’s preemption analysis is built on established New York doctrine distinguishing broad municipal police power from state supremacy where the Legislature has chosen statewide control.

1) Municipal police power limited by inconsistency with State law

  • People v Torres, 37 NY3d 256: quoted for the baseline rule that local governments may legislate for welfare but may not adopt laws “inconsistent with the New York State Constitution or any general law of the state.” The case frames preemption as a primary constraint on local police power.
  • Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372: cited to reinforce that local lawmaking, “albeit broad,” is limited by preemption.

2) Two types of preemption: conflict and field

  • Glen Oaks Vil. Owners, Inc. v City of New York, 44 NY3d 468: supplies the opinion’s operative taxonomy (conflict preemption vs field preemption) and the “additional restrictions on rights granted by State law” formulation the court uses to invalidate Riverhead’s expanded setback.
  • Woodbury Hgts. Estates Water Co., Inc. v Village of Woodbury, 111 AD3d 699: cited consistently with Glen Oaks to support the same preemption framework.

3) Determining legislative intent to occupy a field

  • Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395: provides the classic test for implied preemption—examining “the nature of the subject matter,” the “scope and purpose” of the state scheme, and the need for statewide uniformity; also cited for assessing whether the State has shown “a desire that its regulations should preempt the possibility of discordant local regulations.”

4) Effect of field preemption: local law invalid if it adds restrictions

  • Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91: cited alongside Glen Oaks for the proposition that once the State preempts a field, local laws are inconsistent if they impose additional restrictions or prohibit what state law permits.
  • Matter of Chwick v Mulvey, 81 AD3d 161: cited as an example where local provisions were found preempted for imposing additional restrictions inconsistent with state interests.

5) Uniformity under Town Law § 262 addressed through a related decision

  • Matter of Tink & E. Co., Inc. v Town of Riverhead, ___ AD3d ___: decisive to the uniformity issue; the court adopts its reasoning to conclude Town Code § 301-283.20(A)(5) does not violate Town Law § 262, and extends that conclusion “for similar reasons” to (A)(1) and (A)(4).

B. Legal Reasoning

1) Express statutory preemption and the “time, place and manner” carveout

The opinion turns on Cannabis Law § 131(2), enacted as part of the Marihuana Regulation and Taxation Act of 2021. Section 131(2) expressly provides that local governments are “preempted from adopting any law…pertaining to the operation or licensure” of adult-use cannabis licenses, while allowing local “time, place and manner” regulations—so long as they do not make operation “unreasonably impracticable as determined by the board.”

The court treats this as a strong statement that the Legislature intended statewide control of dispensary operation, with only a limited local role.

2) The State set a specific school-distance rule; Riverhead attempted to rewrite it

The Legislature did not merely authorize dispensaries generally; it set the precise school buffer and measurement method: Cannabis Law § 72 establishes a 500-foot minimum distance from a school and dictates that it be measured from the center of the nearest entrance of the premises to the center of the nearest entrance of the school.

Riverhead’s Town Code § 301-283.20(A)(1) increased the buffer to 1,000 feet and changed the measurement to nearest property line to nearest property line. The court reasons that this is not a permissible “place and manner” detail but an additional restriction that narrows a state-granted siting right, creating inconsistency with the State’s “overriding interest.” Under Glen Oaks Vil. Owners, Inc. v City of New York and Jancyn Mfg. Corp. v County of Suffolk, that inconsistency is enough for preemption.

3) The court avoids broader regulatory questions once statutory preemption resolves the dispute

Having found preemption based on the statutes, the court expressly declines to reach further disputes about whether regulations adopted by the board preempted the Town Code and whether such regulations were properly enacted. This is a standard judicial restraint move: decide no more than necessary to resolve the appeal.

4) Uniformity under Town Law § 262: validity preserved

The Supreme Court had also declared Town Code § 301-283.20(A)(1), (4), and (5) “invalid and void” under the uniformity requirement of Town Law § 262. The Second Department rejected that conclusion, relying on Matter of Tink & E. Co., Inc. v Town of Riverhead (decided the same day) to hold that (A)(5) does not violate uniformity and extending that holding to (A)(1) and (A)(4).

Importantly, this means the Town provisions are not struck down on municipal-law uniformity grounds—even though the school-distance expansion embedded in (A)(1) is unenforceable due to state preemption.

C. Impact

  • Statewide ceiling on school setbacks: Municipalities that attempt to enlarge the Cannabis Law § 72 school buffer (or change the measurement methodology) face a strong preemption challenge. This decision signals that where the Cannabis Law is specific (distance and measurement), local deviation is highly vulnerable.
  • Clarifies scope of “time, place and manner”: The case suggests “time, place and manner” does not allow a town to re-draw the State’s core siting metrics that function as licensing-adjacent eligibility criteria.
  • Litigation framing for licensees: Dispensary applicants confronting restrictive local buffers may pursue declaratory relief and Article 78 review; if the local restriction is preempted, a variance process may be unnecessary.
  • Uniformity challenges may be harder: By affirming compliance with Town Law § 262 (via Matter of Tink & E. Co., Inc. v Town of Riverhead), the court narrows one line of attack against cannabis zoning provisions—pushing future litigation toward preemption and “unreasonably impracticable” theories rather than uniformity.

4. Complex Concepts Simplified

Preemption
A rule that local governments cannot legislate in a way that conflicts with state law, or in a field the State has decided to regulate comprehensively.
Conflict preemption vs field preemption
Conflict: local and state rules cannot both be followed. Field: the State has taken over the subject so extensively that local regulation is generally barred, especially when it adds restrictions.
“Time, place and manner” regulation
A narrow authorization for local rules about how and where an activity occurs (e.g., hours of operation, signage, site layout), but not to re-create or override key statewide eligibility standards—here, the legislatively defined school buffer.
“Unreasonably impracticable”
A statutory limitation in Cannabis Law § 131(2): even permissible local “time, place and manner” rules cannot be so burdensome that they effectively prevent operation; the Cannabis Control Board is assigned a role in determining that.
Area variance
Permission to deviate from dimensional zoning requirements (such as setbacks or spacing). If the underlying local requirement is unenforceable due to preemption, a variance is not needed to avoid it.
Town Law § 262 uniformity requirement
A rule requiring zoning regulations to be uniform within zoning districts. The court held Riverhead’s cited cannabis provisions do not violate this requirement.
Measurement matters (entrance-center vs property line)
Cannabis Law § 72 uses an entrance-center to entrance-center method; Riverhead used property-line measurement. The court treated this change as part of an impermissible effort to tighten the State’s siting rule.

5. Conclusion

Matter of 1086 OCR, LLC v Town of Riverhead Zoning Bd. of Appeals establishes a practical and consequential rule: where the Cannabis Law sets specific dispensary siting standards—here, the 500-foot school buffer and how it is measured—municipalities may not impose a larger distance or a different measurement method through zoning. Such provisions are preempted under Cannabis Law § 131(2) and the broader preemption doctrine articulated in cases such as Glen Oaks Vil. Owners, Inc. v City of New York and Matter of Cohen v Board of Appeals of Vil. of Saddle Rock. At the same time, the court preserved the Town’s provisions against a Town Law § 262 uniformity attack, signaling that future disputes in this area will likely turn less on zoning uniformity and more on statutory preemption and the boundaries of permissible “time, place and manner” regulation.