Reasoned Commercial-Corridor Zoning Exceptions for Cannabis Disensaries Satisfy Town Law § 262 Uniformity; Preemption Challenges Are Academic Absent Entitlement

1. Introduction

Matter of Tink & E. Co., Inc. v Town of Riverhead (2026 NY Slip Op 04775) is a Second Department decision arising from a hybrid CPLR article 78 proceeding and declaratory judgment action challenging the Town of Riverhead’s cannabis-retail zoning scheme and a variance denial.

The petitioners/plaintiffs (Tink & E. Co., Inc. and Elizabeth McGrath, along with the property owners) sought to operate a cannabis retail dispensary on a leased parcel in the Town’s business center zoning district. The parcel sat within roughly 50 feet of a single-family residence and lacked frontage/vehicular access along a designated “commercial corridor,” conditions that triggered a local rule barring cannabis retail establishments within 1,000 feet of a residential use property—unless the parcel qualified for the corridor exemption.

After the Town Planning Department required a variance and the Town of Riverhead Zoning Board of Appeals (ZBA) denied it, petitioners sued. Interveners (1086 OCR, LLC, Brian Stark Enterprises, LLC, and Brian Stark) entered the case based on a separate Town rule requiring 2,500 feet between dispensaries, and petitioners added claims that the 2,500-foot spacing rule was state-law preempted and that both the 2,500-foot and 1,000-foot provisions violated Town Law § 262’s uniformity requirement.

The Supreme Court annulled the ZBA denial and declared both provisions invalid (including a finding of preemption). The Second Department reversed, upheld the corridor exemption against the uniformity challenge, reinstated the need for a variance, upheld the ZBA’s denial, and dismissed the preemption and related uniformity challenge to the 2,500-foot rule as academic.

2. Summary of the Opinion

  • Town Code § 301-283.20(A)(5) upheld: The 1,000-foot residential-buffer requirement, with an exemption for properties within specified commercial corridors, does not violate Town Law § 262 where the record shows a reasonable basis for distinguishing corridor parcels (frontage and vehicular access along designated county routes).
  • Variance required and denial affirmed: Because § 301-283.20(A)(5) is valid, the petitioners needed a variance; the ZBA’s denial was not arbitrary and capricious (notably due to self-created hardship and neighborhood character concerns).
  • Challenges to § 301-283.20(A)(4) not reached: The claims that the 2,500-foot dispensary-to-dispensary spacing requirement was preempted and/or violated Town Law § 262 were dismissed as academic because petitioners lacked entitlement to operate at the site regardless of that provision.
  • Remittal: The matter was remitted for entry of an amended judgment declaring, among other things, that § 301-283.20(A)(5) does not violate Town Law § 262.

3. Analysis

3.1 Precedents Cited

A. Town Law § 262 uniformity

The court anchored its uniformity analysis in the Town Law § 262 principle that zoning regulations must be “uniform for each class or kind of buildings, throughout such district,” a safeguard against discriminatory zoning.

  • Matter of Augenblick v Town of Cortlandt, 104 AD2d 806, 814 (Lazer, J.P., dissenting), revd for reasons stated in dissent 66 NY2d 775: The decision relies on Augenblick’s articulation of the uniformity purpose (equal treatment in-district; reduced risk of owner-specific overreaching) and its flexible caveat that “the uniformity rule may be bent” where specialized circumstances justify different treatment. The Second Department effectively applies Augenblick as the governing framework: differential treatment is permissible if the record shows a reasonable basis.
  • Tupper v City of Syracuse, 93 AD3d 1277, 1281: Cited to reinforce the anti-discrimination purpose of uniformity—property holders should be treated alike within the same district absent justification.
  • Matter of Tampone v Town of Red Hook Town Bd., 215 AD3d 863, 865–866: Used for the operative test: an ordinance satisfies uniformity where the record discloses a reasonable basis for different treatment among similar parcels within a district. Tampone supplies the doctrinal “bridge” allowing corridor-based differentiation when rationally supported.

B. Deference to zoning boards; arbitrary-and-capricious review

  • Matter of Ifrah v Utschig, 98 NY2d 304, 308: Establishes the broad discretion of local zoning boards in variance decisions and the narrow scope of judicial review (illegality, arbitrariness, abuse of discretion).
  • Matter of 790 Holdings Corp. v Board of Appeals of the Town of Hempstead, 237 AD3d 924, 925: Reinforces Ifrah in the Second Department context, emphasizing restraint in second-guessing variance determinations.
  • Matter of Kabro Assoc., LLC v Town of Islip Zoning Bd. of Appeals, 95 AD3d 1118, 1119: Supplies the “rational basis” formulation: courts disturb determinations only if arbitrary, unreasonable, irrational, or in bad faith.
  • Matter of Cowan v Kern, 41 NY2d 591, 599: A foundational Court of Appeals citation for the rational-basis approach under arbitrary-and-capricious review.

C. Use variance and “unnecessary hardship”

  • Matter of Brennan v Hobbs, 193 AD3d 725, 726: Cited for the four-part Town Law § 267-b(2)(b) “unnecessary hardship” test, including the requirement that the hardship not be self-created.
  • Matter of Hammer v Town of Bedford N.Y., 242 AD3d 747, 749, and Matter of Gasparini v Zoning Bd. of Appeals of the Town of Newburgh, 222 AD3d 644, 646: Both are used to support the conclusion that the ZBA’s denial had a rational basis and should not be judicially disturbed given the record.

3.2 Legal Reasoning

A. The “commercial corridor” exemption survives Town Law § 262

The Supreme Court had invalidated § 301-283.20(A)(5) on the theory that exempting corridor parcels from the 1,000-foot residential buffer created non-uniform regulation within the business center district. The Second Department reversed by applying the Augenblick/Tampone standard: differential treatment does not violate uniformity if there is a reasonable basis grounded in the record.

The key factual/legal hinge is how the Town defined the corridors: “only those properties with frontage and vehicular access along the commercial corridor” (Town Code § 301-283.19). The court treated frontage/vehicular access along designated county routes as a legitimate land-use distinction—functionally separating higher-intensity roadway-commercial parcels from other parcels in the same district that abut or lie near residential uses.

In effect, the decision clarifies that Town Law § 262 uniformity is not a “no line-drawing within a district” rule; it is a “no unjustified discrimination” rule. The corridor carve-out is sustained because it is tied to objective access/frontage criteria, not to favored owners or ad hoc site selection.

B. Validity of § 301-283.20(A)(5) restores the variance requirement

Once § 301-283.20(A)(5) stands, the petitioners’ site—within 50 feet of a single-family residence and outside the corridor—cannot host a dispensary without relief. This mooted the Supreme Court’s view that “no variance was necessary.”

C. Deference to the ZBA; denial upheld under use-variance principles

The ZBA treated the application as one for a use variance. The Second Department “assume[d] without deciding” that this was the correct characterization, and then held petitioners failed at least one essential prong of the “unnecessary hardship” test: the hardship was self-created.

The court’s self-created-hardship finding was straightforward: when McGrath entered into the lease (2023), Town Code did not permit a dispensary at the property without a variance. Her belief that amendments were underway did not convert the risk of future legislative change into a non-self-created hardship. This reasoning signals a cautionary rule for regulated industries: business planning premised on anticipated zoning amendments does not establish entitlement or mitigate self-created hardship.

Separately, the court held the ZBA rationally concluded the proposed dispensary would alter neighborhood character, emphasizing (i) the site’s close proximity to a single-family home/residential neighborhood and (ii) the lack of frontage on a commercial corridor. Under Ifrah/Kabro/Cowan, that rational basis ends the inquiry.

D. Preemption challenge to the 2,500-foot spacing rule deemed academic

Petitioners sought a declaration that § 301-283.20(A)(4) (2,500 feet between dispensaries) was preempted by state law and violated Town Law § 262. The Second Department did not reach the merits because, regardless of § (A)(4), petitioners could not lawfully operate at the chosen site without a variance—and they lost the variance challenge. Thus, the § (A)(4) dispute would not affect petitioners’ rights in this case, rendering it academic.

Practically, the decision underscores a sequencing principle in land-use litigation: courts may decline to decide broader declaratory/preemption issues where the challenger lacks a pathway to actual approval even if the challenged provision fell.

3.3 Impact

  • Municipal cannabis zoning: Towns can structure cannabis siting rules with corridor-based exemptions (or similar sub-area criteria) without automatically violating Town Law § 262, provided they can articulate and document an objective, planning-based rationale (here: frontage/vehicular access on designated routes).
  • Uniformity litigation focus: Challenges will likely turn less on whether parcels are treated differently (often true) and more on whether the municipality built a record showing a reasonable basis tied to land-use characteristics rather than owner-specific preferences.
  • Variance strategy for applicants: Cannabis applicants leasing property before permissive zoning is in place face a heightened risk that “self-created hardship” will defeat a use variance—especially where the site is near residences and outside designated commercial corridors.
  • Preemption cases may be harder to tee up: Litigants seeking statewide cannabis-law preemption rulings may need a posture where the challenged local restriction is the true barrier to operation; otherwise, courts may dismiss as academic.

4. Complex Concepts Simplified

Town Law § 262 “uniformity”
A rule that zoning within the same district must not improperly discriminate among properties. It does not forbid all distinctions; it forbids distinctions lacking a reasonable planning basis.
Commercial corridor exemption
A legislative choice to treat parcels with specific objective features (here, frontage and vehicular access along designated routes) differently from other parcels in the same zoning district.
CPLR article 78
A special proceeding used to challenge administrative actions (like a ZBA variance denial). Courts review for legality and rationality, not whether they would have decided differently.
Arbitrary and capricious / rational basis
A deferential standard: if the agency’s decision has a plausible, reasoned basis in the record, courts uphold it even if another outcome was possible.
Use variance; “unnecessary hardship” (Town Law § 267-b[2][b])
Permission to use property in a way the zoning code otherwise forbids. The applicant must satisfy a demanding four-part test, including that the problem is not self-created.
Academic claim
A claim courts decline to decide because the answer would not change the parties’ rights in the case (i.e., it would be an advisory opinion).

5. Conclusion

Matter of Tink & E. Co., Inc. v Town of Riverhead solidifies two practical rules in New York land-use disputes involving cannabis retailing: (1) Town Law § 262 uniformity permits intra-district distinctions when the municipality can show a reasonable, objective land-use basis—such as corridor frontage and vehicular access—and (2) courts will uphold variance denials where applicants cannot overcome self-created hardship and where the board rationally finds neighborhood-character impacts. The decision also demonstrates that broad preemption attacks on local cannabis regulations may be dismissed as academic when the challenger cannot obtain approval even under the challenger’s preferred legal landscape.