Compromise can be difficult for elected officials. Even more so when the topic is a polarizing issue like whether to allow cannabis businesses to operate in a small town.
Middlesex Borough Council members reached an accommodation in May 2021. All cannabis businesses would be permissible in the town’s industrial zone as conditional uses, except for retailing.
Retailing is the most emotional cannabis commerce topic. Will a town allow direct purchases by customers? It’s sometimes viewed as less problematic to permit a business to grow or package the product.
Some might now wish they’d paid a little bit more attention at that 2021 meeting. The ramifications of the council’s decision to allow certain cannabis businesses is providing a zoning lesson now, more than two years later.
Five Joint Land Use Board (JLUB) members voted down a cannabis cultivation facility proposed by MB1 Industries for Lackland Avenue this past March. The building that would house it sits on a roughly half-acre lot located about 600 feet from residential zones. In late May, the entrepreneurs who proposed the cultivation facility filed suit in state Superior Court.
When zoning allows a specific use, an applicant has the option to challenge a local denial in court. Particularly, if the applicant believes they’ve met the criteria in the municipality’s ordinances. In those cases, it’s automatic that the applicant’s lawsuit will claim the local rejection was “arbitrary and capricious.”
The council that approved the cannabis business zoning was all-Republican. The five JLUB members who rejected the MB1 application were primarily Republicans.
It could be argued that the Middlesex Borough Republican Organization was doing a dance on the cannabis issue all along. Perhaps GOP members thought they could placate some by allowing the zoning, but then rejecting an application, if one ever came forward. If so, maybe they should have put away the ballet shoes and come up with a better strategy.
MB1’s suit paints a picture of JLUB members who don’t completely understand how zoning law works and instead voted on emotion. Maybe that’s true, maybe not. The borough – as of Monday, Sept. 18 – had not filed a response to the lawsuit, according to a court documents portal.
The applicant is scheduled to come backs before the JLUB on Sept. 27, according to the meeting agenda. MB1’s reappearance could be interpreted as a sort-of admission there was a problem with the initial rejection. The agenda includes the words “settlement agreement.”
The lawsuit draws from the JLUB’s two-night public hearing record last spring. During those sessions, the litigation says, no reports or other written analysis from various municipal sources found serious problems with the application. The JLUB “did not receive any contradictory expert testimony refuting the applicant’s experts’ testimony,” the lawsuit reads.
The board’s denial resolution mentions concerns about security and possible odors emitted at the proposed cultivation site. The suit disputes that. It notes that during the hearing, board members referred to problems created by Spray-Tek and cannabis cultivation facilities located elsewhere in New Jersey.
“The board’s consideration of unrelated applications, developments, uses and problems associated therewith to which the applicant has no connection, control or knowledge is devoid of any support in the evidentiary record,” the lawsuit reads.
“The board demanded more from the applicant than the borough code requires,” the suit adds.
If the board backtracks, settles the matter and approves the cultivation facility, does that mean the JLUB was out-of-bounds in its scrutiny of the application?
Perhaps it’s more a matter of borough officials now looking seeking to settle litigation that could drag on in court and run up taxpayer-funded legal bills.
Regardless, whether it was mishandling of the application or new-found pragmatism, there’s one fact the Middlesex Borough Republican Organization can’t deny. If the party’s majority truly did not want cannabis businesses within the municipality, the council should have never adopted the related zoning in 2021.
That zoning opened the door to the cannabis industry, instead of slamming it shut like roughly 2/3 of New Jersey’s municipalities. The Middlesex GOP tried to play it both ways. Those who favor allowing cannabis commerce, however, outmaneuvered those who are opposed.
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