A retail cannabis business Riverhead Town officials have so far prevented from opening in a former bank building on Ostrander Avenue is asking a court to exempt the property from the town’s restrictive marijuana zoning code.

Tink & E. Co., owned by cannabis license candidate Elizabeth McGrath of Cutchogue, as well as the landlords of the site, GM Riverhead Realty, have filed an Article 78 petition in Suffolk County Supreme Court in an attempt to overturn the Riverhead Zoning Board of Appeals ruling last month that denied McGrath’s request to allow her business on the site. The petition was filed on Wednesday against the town, the ZBA and the town’s planning department.

The property, located at 1201 Ostrander Avenue, is a former bank branch that has been vacant nearly eight years; it is commercially zoned and is located right off Route 58. However, the property does not have frontage on the commercial corridor, which means it fails to qualify for an exemption from the town code provision that requires recreational cannabis businesses be at least 1,000 feet from a residence. The town has denied Tink & E. Co.’s building permit for that reason.

Most surrounding properties have frontage on Route 58 and, therefore, qualify for the exemption, which was created to allow recreational cannabis businesses to open after the Riverhead Town Board imposed what officials admitted was an overly restrictive law. The petition notes that dispensaries are permitted on all but one of nearby commercial properties; the site is “indistinguishable from a zoning perspective compared” to the surrounding properties, the petition says.

The site is “uniquely tailored for a cannabis store,” the petition argues. The property “has not proven to be rentable for other commercial uses despite landlord’s efforts,” and has been vacant since 2017, it states.

Tink & E. Co, became a tenant for the property and has been paying rent since the Fall 2023, causing her to lose a six-figure investment, the petition states. It says McGrath signed the lease for the building because state law requires cannabis license applicants to have land either owned or rented “reasonably expecting” the Ostrander Avenue property would be allowed under zoning amendments being discussed by the town.

The ZBA’s denial also “places the landlord in a situation where having finally pulled itself out of a financial hole from the property being unrentable, it is now being put right back into that hole, with real, six-figure financial consequences. Unless reversed, the Denial will thus materially and directly financially injure this landlord,“ it says.

The Zoning Board of Appeals ruled on Feb. 13 that Tink & E. Co. “failed to prove unnecessary hardship” and did not meet the criteria for a use variance. The petition claims the ZBA’s denial is “disturbingly misleading for what it leaves out — material facts which, if properly addressed, would have compelled the issuance of the variance.”

In March 2024, McGrath’s attorneys, David Holland and Andrew Schriever of the firm Prince Lobel Tye, wrote to the New York State Office of Cannabis Management asking it to issue an opinion on whether the town’s cannabis zoning is “unreasonably impracticable” and violates state law. The petition states that the Office of Cannabis Management never responded to the letter. 

Deputy Town Attorney Annemarie Prudenti, the ZBA’s counsel and an architect of the town zoning code regulating the siting of marijuana businesses, declined to comment on the petition. She said the town had not yet been served with the lawsuit.

While McGrath has been fighting with the town to allow her pot store on Ostrander Avenue, two dispensaries have opened in Riverhead Town: Strain Stars, on the western part of Route 58 in Riverhead and Beleaf, in a shopping center on Middle Country Road in Calverton.