NYS sides with cannabis shop seeking to open within 1,000 feet of Riverhead High School

State appeals court judges have ruled that Riverhead Town went too far when it blocked a cannabis shop from opening because it was too close to a school.

The Second Appellate Division in Brooklyn last week upheld a lower court decision that found Riverhead's Zoning Board of Appeals was wrong last year when it rejected an application by Brian Stark for a variance to open a pot shop on Old Country Road.

The ZBA said the store would be too close to Riverhead High School, about 733 feet away on Harrison Avenue. The board cited a town law barring cannabis dispensaries within 1,000 feet of schools.

Appeals court judges said the town law improperly supersedes state law, which allows municipalities to block pot stores only if they are within 500 feet of a school.

The court noted that while state law grants municipalities the ability to impose certain regulations on pot shops, such as hours of operation, the state "has specifically set the distance of such dispensaries from a building containing a school" and Riverhead's statute "is therefore preempted by the state law."

Riverhead Supervisor Jerome Halpin did not return a call and email seeking comment.

Stark is seeking to open a pot shop in a shuttered paint store at 1086 Old Country Rd. Stark could not be reached for comment.

His lawyer, Martha F. Reichert of Riverhead, said Stark applied for a building permit late last week after the appeals court issued its ruling, which happened Wednesday. It's not clear when he will be able to open, she said Monday in a phone interview.

“It’s clear that we don’t need a variance” from the zoning board, Reichert said. “There’s no reasons for the town to not act on it now."

She said Stark could open the store soon after receiving a town building permit. "This is a long time coming,” Reichert said.

The appeals court ruling is the latest in a string of legal defeats for Riverhead as it has sought to limit where cannabis dispensaries may open.

Last year, a Suffolk County judge struck down a town law requiring dispensaries to be 2,500 feet apart because it, too, conflicted with state regulations.

Also last year, the state's Cannabis Control Board ruled that pot shop restrictions in Riverhead and Southampton were "unreasonably impracticable" following complaints from shop owners whose proposals had been rejected by those towns.