New Jersey, like many other states, allows for the cultivation and sale of marijuana for medicinal purposes. Marijuana is not yet allowed for recreational use in New Jersey. While medical marijuana use and consumption is legal under New Jersey state law, it remains illegal under Federal law, which leads to an interesting and complicated situation when an applicant seeks zoning approvals for a marijuana facility. Planning and/or Zoning Boards are essentially asked to approve a use that is illegal under Federal law.
Several municipalities in New Jersey have already indicated that they will not allow any marijuana facilities within their borders. Some have embraced marijuana businesses and welcome the additional revenue. The vast majority of municipalities are either undecided or not vocal about their position. The proposed legislation that, if passed, will legalize recreational marijuana in New Jersey also provides for a 180-day window from the time of bill signing within which municipalities can prohibit cannabis businesses within their jurisdiction.
To determine if a marijuana related use is permitted on a particular property, one would have to analyze the local zoning ordinance to determine if the use is allowed and whether the applicant can satisfy any relevant requirements. Land use ordinances, however, are oftentimes not regularly updated to include new uses and many will not explicitly mention facilities related to the cannabis industry. In reviewing an ordinance, one should always check to see if the use falls under some general category of allowed uses such as retail or manufacturing. Depending on definitions and interpretations, the use might also be akin to a minute clinic or pharmacy type of use.
If a use variance is required, the applicant would need to demonstrate certain criteria in order to obtain the variance. Issues that regularly come up include traffic, parking, noise, impact to community, whether there is a substantial detriment to the master plan, and other impact factors. An applicant needs to become intimately familiar with the zoning regulations and be able to show that the location could accommodate the proposed use and that the application satisfies all of the requisite legal proofs needed for a use variance.
