Hoboken for Responsible Cannabis, Inc. v. City of Hoboken Planning Bd., ___ N.J. Super. ____ (App. Div. 2024). This land use decision, written by Judge Firko, is the final published opinion of the Appellate Division for 2024. The defendant Board had granted a conditional use application by defendant Blue Violets LLC to operate an adult “micro” cannabis retail business at an existing mixed-use building, and exempted it from a newly enacted Ordinance B-446 that restricted any cannabis retailer from being located within 600 feet of a primary or secondary school. Plaintiff (“HFRC”) and one of its members filed a complaint in lieu of prerogative writ that challenged that approval and won a ruling in the Law Division vacating that approval. The Appellate Division, however, reversed and reinstated the approval.
Judge Firko’s opinion addressed two legal issues. First, there was the question whether HFRC had standing to attack the approval as an interested party under the Municipal Land Use Law, N.J.S.A 40:55D-1 et seq. (“MLUL”). The Law Division had found that HFRC had standing. Judge Firko agreed.
The MLUL defines an “interested party” as “any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under [this act], or whose rights to use, acquire, or enjoy property under [this act], or under any other law of this State or of the United States have been denied,violated or infringed by an action or a failure to act under [the MLUL.” N.J.S.A. 40:55D-4. Applying that definition, and evaluating that legal issue de novo, the panel concluded that both plaintiffs had standing. HFRC was composed of Hoboken citizens, including the other plaintiff, one of its members. And both plaintiffs “inherently have standing to challenge the Planning Board’s ‘Approval of Conditional Use,’ which may impact [the two plaintiffs’] rights of use and enjoyment of their properties by virtue of the potential impact on Hoboken’s zoning plan or the community welfare.”
The second issue was whether the “Time of Application” rule contained in the MLUL, N.J.S.A. 40:55D-10.5. That provision states: “Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.”
The City had a Cannabis Review Board (“CRB”), to which Blue Violet had originally submitted its application, at great expense. The CRB, established as an “arm” of the Planning Board, deemed Blue Violet’s application complete before Ordinance B-446 was adopted. Judge Firko found that the CRB was a “municipal agency” under the MLUL and held that the CRB’s completeness determination triggered the “time of application” rule and its protection of Blue Violet’s application from ordinance changes. The panel thus upheld the Board’s ruling that Blue Violet’s application was not subject to the new ordinance, reversed the Law Division’s vacation of the conditional use approval, and reinstated the approval.
Happy new year to all!