Dear Scott and Pat,
As you may be aware, the application for the Blue Violets dispensary is controversial with many members of the public reaching out to us and other City Council members about the proximity to two schools including many parents of children who attend those two schools. In April, the City Council and Mayor approved Commonsense Cannabis Regulations that, among other provisions, prohibited dispensaries from being within 600 feet of a school. These laws went into effect on April 28th. Under NJ’s “Time of Application” law as recently interpreted by the NJ Supreme Court, Blue Violets, who submitted their application to the Hoboken Planning Board on April 29th after our laws went into effect, would violate this law as it is closer to 250’ away from both Hoboken Charter and All Saints Day School.
Here is the relevant timeline:
- On April 6th, the City Council passed Common Sense Cannabis Regulations that included, among others Section 196-33.1(I) of our zoning code which says that the location of a dispensary cannot “be located within 600 feet in all directions of any primary or secondary school”. In this instances, 628 Washington St. is approximately 200 feet from each Hoboken Charter School and All Saints Episcopal Day School.
- On April 8th, Mayor Bhalla signed the ordinance into law (see attached).
- On April 28th, the law became effective per NJSA 40:41A-101 and 40:74-4 which says that a law “shall not take effect before 20 days from the time of its final passage”.
- According to responsive documents for a recent OPRA request concerning this matter, it wasn’t until April 29th that the Blue Violets Applicant submitted its MLUL application to the Hoboken Planning Board, one day after Hoboken’s new cannabis laws went into effect. Although it was well within Blue Violets’ control to have submitted their application to the Hoboken Planning Board as early as April 22nd, the day following the Cannabis Review Board hearing.
We know that the Cannabis Review Board, which is just an advisory board, treated the applicant as being “grandfathered” at the time of the hearing which was a week before our new laws came into effect. This should have no bearing on how the Hoboken Planning Board applies the “Time of Application” laws that have specific jurisdiction on what is a separate land use application and process.
This is an important decision. And we hope that our Planning Board will uphold our local laws that were put in place because of public input and supported by the Hoboken governing body, and not continue with this application. If the Board feels differently, we would ask that you provide a legal opinion supporting this position prior to any further action on this application.
For reference, our understanding of NJ’s “time of application” law, 40:55D-10.5 – Development regulations, certain, govern review of application is that it says two things:
1. 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.
2. 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.
It seems clear that the first provision applies given Hoboken’s new regulations were in effect the day before the applicant submitted his application. And also, the second provision seems to apply as well given Section 196-33.1(I) of Hoboken’s ordinance relates to protecting “health and public safety.”
Not only were the new regulations in effect when Blue Violets submitted its application, but additional context from the OPRA responsive documents suggests that the application did not have “all accompanying documents required by ordinance for approval” at the time the application submitted, nor even over a month later. The “all accompanying documents…” being the standard set by the NJ Supreme Court in its ruling on Dunbar Homes vs. ZBA of Franklin Township in 2018. Specifically, for how to interpret “submission of application” and the minimum requirements needed to benefit from NJ’s “Time of Application” state statute.
Here is another timeline that describes how the application has lacked substantive documentation until only recently, well after the new laws became effective on April 28th:
- As of May 2nd, the applicant did not have a NJ licensed lawyer, which is required.
- As of May 9th, the applicant did not have its Flood Plan Review letter, which is required. Actually, they hadn’t even reached out to the Flood Plain Administrator for it.
- As of May 10th, the applicant did not have signage and lighting plans and a traffic report that all were deemed to be important and required. In fact the applicant said at the completion hearing that evening that he “liked to take the process one step at a time.” Nor did the applicant have experienced planning, traffic and legal professionals which are required (and were not identified). As a result, the Planning Board deemed the application incomplete at its completion review hearing.
- As of May 15th, the applicant had still not provided the traffic, signage and lighting plans or identified professional experts.
It wasn’t until May 31st, 33 days after the new cannabis laws were in effect, that the applicant finally hired a NJ licensed lawyer (who would then even later hire the traffic and planning professionals). And it wasn’t until June 3rd, that the applicant submitted its signage plan. As of this writing, it is unclear whether the applicant has submitted all of the remaining necessary “accompanying documents required by ordinance for approval”. Even had Blue Violets submitted in time, following this timeline, its application would still not have met the requirements set by the NJ Supreme Court in order to benefit from the Time of Application.
Whether Blue Violets is a good business or not is not at issue here. Just it’s proposed location and its conflict with Hoboken’s laws. We thank you for addressing this issue. Feel free to reach out to discuss further.
Hoboken City Council
Hoboken City Council
Parent of a Student at All Saints