On March 31, 2021, the State of New York signed into law the Marijuana Regulation and Taxation Act. In its Preamble, the statute notes, “it is in the best interest of the state to regulate medical cannabis, adult-use cannabis, cannabinoid hemp and hemp extracts under independent entities…” Cannabis Law § 2.
Under Cannabis Law § 131(2), all counties, towns, cities, and villages are “preempted from adopting any law, rule, ordinance, regulation or prohibition pertaining to the operation or licensure of registered organizations, adult-use cannabis licenses or cannabinoid hemp licenses.” Cannabis Law § 131(2).
Cannabis Law § 131(2) also provides, however, that local municipalities are permitted to pass local laws and regulations governing the time, place and manner of licensed adult-use cannabis retail dispensaries, “provided such law or regulation does not make the operation of such licensed retail dispensaries or on-site consumption sites unreasonably impracticable as determined by the board.” Id.
With the state declaring its intent to regulate the industry, municipalities on Long Island are left with difficult questions about whether they can regulate marijuana sales and, if so, how.
Some municipalities, including the Village of Massapequa Park and the Village of Islandia, amended their zoning ordinances to prohibit dispensaries outright. Other municipalities, including the Town of Riverhead, amended its zoning ordinance to permit retail cannabis dispensaries subject to specific regulations and requirements.
In a 2026 decision, the Second Department reversed a lower court ruling that had invalidated key provisions of the Town of Riverhead’s cannabis regulations.
Factual Background
In 2023, petitioner/plaintiff entered into a lease for commercial property located in the Town’s Business Center Zoning Use District. The property, however, was outside of one of the Town’s commercial corridors and was located within 50 feet of a single-family residence. Tink & E. Co. v. Town of Riverhead, 251 A.D.3d 1085, 1086 (N.Y. App. Div. 2026)
After applying for the necessary permits to operate a dispensary at the property, the Town Planning Department denied the application for its failure to comply with the applicable regulations. Id. Petitioner/plaintiff was then required to seek variance relief from the Zoning Board of Appeals. In February of 2025, the Zoning Board of Appeals denied the variance application. Id.
After commencing an Article 78 proceeding to review the Zoning Board’s denial, other parties seeking to operate a cannabis dispensary approximately 1,600 feet from the subject property moved to intervene. Id. at 1087. The intervening parties argued that the granting of the requested variance would prevent them from operating at their property due to the Town’s 2,500-foot separation requirement under Town Code § 301-283.20(4). Id.
After the Supreme Court granted the motion to intervene, the petitioner/plaintiff filed an amended petition/complaint adding a second cause of action seekingto declare that: (i) the Town’s 2,500-foot separation requirement was preempted by state law, and (ii) the Town’s 1,000-foot and 2,500-foot requirements violated Town Law § 262. Id.
The Supreme Court initially declared the applicable portions of the Town Code invalid. The Supreme Court found:
“As the State of New York has directly addressed the issue, the Town of Riverhead’s attempt to address the distance between cannabis dispensaries at 2,500 feet under Town Code § 301-283.20 (A) (4) is preempted by State Law 9 NYCRR § 119.4 (a) which sets the required distance at 1,000 feet.”
Uniformity Under Town Law § 262
Town Law § 262 requires that zoning regulations “shall be uniform for each class or kind of buildings, throughout such district but the regulations in one district may differ from those in other districts.” Town Law § 262. The Second Department noted that the uniformity requirement under Town Law “is intended to ensure that all property owners in the same district are treated alike and that there is no improper discrimination.” Tink & E. Co. v. Town of Riverhead, 251 A.D.3d 1085, 1087 (N.Y. App. Div. 2026).
However, the court noted that this rule is not absolute, stating:
“Thus, ‘[a]n ordinance will be held to uniformity if the record does not disclose any reasonable basis for different treatment among similar parcels within a district.'”
Id. at 1088.
In the case at bar, the court found that there was a reasonable basis for the differing treatment, “as each commercial corridor includes only properties with frontage and vehicular access along designated portions of certain Suffolk County routes. Id.
Accordingly, the court held that Town Code § 301-283.20 (A)(5) did not violate Town Law § 262, and the court remitted the matter to the Supreme Court for entry of an amended judgment declaring the provision valid. Id. at 1087.
State Preemption
Given that the court upheld Town Code § 301–283.20(A)(5) as valid and affirmed the Zoning Board’s denial of the variance application, the petitioners were not entitled to operate a cannabis dispensary at the property regardless of the preemption challenge. Id. at 1089.
The court dismissed as academic the cause of action seeking a declaration that the 2,500-foot separation requirement was preempted by state law or violated Town Law § 262 and, therefore, declined to address the merits of those arguments. Id. at 1090.
Conclusion
Although the court’s decision confirms that certain zoning regulations can survive uniformity challenges so long as a rational basis exists for the distinction, it leaves open the question of state preemption for municipalities seeking to impose additional regulations on the retail sale of cannabis.
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