Authored by: Brian P. Sharkey (Porzio, Bromberg & Newman, P.C.)
In several of our recent updates we have discussed the possibility that New Jersey will enact a law that legalizes marijuana. Although such a law is by no means imminent, that has not prevented some New Jersey counties and municipalities from intervening in this area. Readers who do not reside in the Garden State may be surprised to learn that not only does New Jersey have a long, and strong, tradition of home rule, but it has 21 counties and 565 municipalities. Some of those countries and municipalities have made it clear that they do not support the idea of marijuana legalization by the State or such businesses within their borders.
For example, in January 2018, the Board of Chosen Freeholders of Monmouth County ("Monmouth County Board") adopted a resolution that stated in pertinent part that "this Board does hereby oppose the legalization of recreational marijuana use[.]" The resolution cited the illegality of marijuana under federal law and various data from Colorado in support of the Board's position. The resolution also outlined a variety of law enforcement considerations and declared that "many health care professionals consider marijuana a 'gateway' drug[.]" Similarly, in February 2018, the Board of Chosen Freeholders of Ocean County ("Ocean County Board") adopted a resolution that provided that it "opposes the enactment of legislation to legalize the recreational use and sale of marijuana; and further encourages Ocean County municipalities to join with Ocean County in opposing this issue." In support of that position, the Ocean County Board pointed out that marijuana remains illegal under federal law and that Attorney General Sessions rescinded the Obama-era Cole Memo. The resolution also cited law enforcement concerns and the dangers of recreational marijuana as a basis for why the State should not adopt a legalization law.
Although other counties have not taken similar action, several municipalities have considered, and in some instances passed, ordinances that would, depending on the specific ordinance, ban the growth, processing and/or sale of marijuana within the municipality's borders. According to press reports, Union City became the first municipality in Hudson County to adopt such an ordinance, while Hasbrouck Heights became the first municipality in Bergen County to do so. In its resolution, the Ocean County Board explained that Point Pleasant Beach and Berkeley Township had already passed such ordinances and that Toms River Township, Ocean Gate, and Lavallette were "strongly considering similar ordinances[.]" While the overwhelming majority of municipalities have not taken any action with respect to potential marijuana legalization, Asbury Park and Jersey City are two municipalities that have indicated that they would welcome marijuana businesses in their towns so long as they satisfy State requirements.
Relevant to the issue of home rule, the Asbury Park Press published an article titled, "To put it bluntly, many pot questions lack answers," that featured an exchange with Michael F. Cerra, assistant executive director of governmental affairs for the New Jersey League of Municipalities. In response to a question about whether the League of Municipalities had a specific position on legalization of marijuana, Mr. Cerra responded "[n]ot at the moment. The league has a diverse membership and has convened a task force to review the issue, the proposed legislation, and to develop a series of recommendations which may or may not include a position on legalization." With respect to municipalities banning sales within their borders, Mr. Cerra commented that "[e]very [State legislative] proposal to date has included an opt-out provision for municipalities, meaning that they would be authorized to bar businesses which would manufacture, distribute or sell marijuana. A number of municipalities have already taken such action, or are in the process of doing so. Out of fairness, it is probably premature to describe it as widespread at this point, but it may become more significant." Mr. Cerra further discussed municipal prohibitions on marijuana sales by explaining that "[a] local ban is more than a meaningless gesture. Local residents and business owners might be concerned about the possible impact of legalization on public safety and the quality of life. A municipal ban could provide reassurance to concerned citizens. It could mitigate worries about local law enforcement issues that could arise at marijuana production facilities, warehouses and retail outlets. It could also address uncertainties related to the potential for legalized-marijuana-related street crimes, and disorderly persons offenses."
While it is important for those interested in the status of legalization to remain focused on legislative developments at the State level, they should also monitor whether more municipalities, and which ones, take action to prohibit cannabis businesses in their towns. Such strategic planning could prove beneficial in the long term as stakeholders evaluate where to invest and concentrate their resources if the State eventually adopts a legalization law.