Montclair has until Aug. 21 to implement laws regulating cannabis establishments.
Photo by Add Weed on Unsplash

By JAIMIE JULIA WINTERS
winters@montclairlocal.news

Now that recreational marijuana use is legal in New Jersey, Montclair has until Aug. 21 to implement laws regulating establishments that sell it. 

Although smoking marijuana for those 21 years of age and older and on private property has been legal since February, municipalities are now dealing with their end of regulating sales — setting local zoning for where establishments can be located and how many there can be, creating taxes on the product, establishing registration fees for retailers and setting civil penalties for violation of ordinances. 

In December 2012, Montclair was the first town in the state to welcome an alternative treatment center — then Greenleaf Compassion Center — in which cannabis could be sold for medical uses only; however, the town never created any ordinances zoning the establishments or collecting taxes on sales. 




But since the passage of three bills signed by Gov. Phil Murphy in February that legalize adult use of cannabis, decriminalize marijuana possession in small amounts, drop all pending cases for possession of marijuana and create a regulated cannabis marketplace, all existing municipal ordinances regulating or prohibiting cannabis are null and void anyway. 

Any prior local ordinances must be readopted to be effective, Lori Buckelew, assistant executive director of the League of Municipalities, told local officials at a recent briefing on the cannabis law.

Ascend is Montclair’s medical marijuana dispensary. It was the first in the state to open, as Greenleaf Compassion Center, in 2012.
KATE ALBRIGHT/ FOR MONTCLAIR LOCAL

In response, Montclair has created a cannabis committee, with Mayor Sean Spiller, Councilman Peter Yacobellis and Councilwoman Robin Schlager to start working on regulations.

Township Attorney Ira Karasick told the council in a memo dated March 31 that if it doesn’t take action by Aug. 21, cannabis businesses and services could automatically be considered permitted uses in all industrial zones, and conditional uses in commercial and retail zones. The township also wouldn’t be able to prohibit licensees from moving into town for five years.

Under the new laws, the state’s newly created Cannabis Regulatory Commission is charged with adopting rules including those for licensing applications and eligibility; the number of permissible licenses of each type; security requirements for licensees; labeling and packaging requirements; retailer employee eligibility criteria; and advertising and marketing limitations.

The state will allow six kinds of licenses: for cannabis farmers and growers, manufacturers of cannabis products, wholesalers, distributors, retailers and delivery services.

But municipalities can take local action to either prohibit or limit the number of cannabis establishments, distributors or delivery services; dictate the location, manner and times of operation; and establish civil penalties for violation of those ordinances, according to the League of Municipalities.

Once the commission approves an application, it then refers the application to the municipality where the applicant is located, for confirmation that the application complies with any locally enacted requirements, Karasick said.

In March, Bayonne created an ordinance allowing for no more than two retailers, one cultivation center and one processing center, and zoning them to certain parts of town. It sets a 2% local tax on the top of the state’s 6.625% sales tax, application fees of $5,000 to $10,000, and annual registration fees of $10,000 for retail to $40,000 for cultivators.

While some towns have opted out of having dispensaries in their towns, such North Caldwell and West Caldwell in Essex County, they will have to pass new ordinances banning them by Aug. 21 or have to wait five years to do so.

Montclair will be looking at a local cannabis tax, which by state law cannot exceed 2% for a cultivator, retailer and manufacturer, or 1% for a wholesaler. The town can also limit the number of licenses and can prohibit any of the six license classes. 

The township currently has one alternative treatment center on Bloomfield Avenue — Ascend, the former Greenleaf center. Another center application is expected to be presented to the Zoning Board in May, by Lightshade. Both businesses told Montclair Local in February that, at least for now, they’ll remain focused on medical marijuana, not recreational sales.

How much tax revenue Montclair could take in remains to be seen, but with more dispensaries permitted in town and at current cannabis prices set at $50 to $60 for an eighth of an ounce, the town could benefit financially. 

Zoning will also be a consideration for Montclair, but under state rules sale of cannabis is already not allowed at grocery stores, delis, indoor food markets, stores engaging in retail food, or premises licensed for retail alcoholic beverage sales.

Another issue for zoning: Federal and state drug-free school zones for years have made distributing, dispensing or possessing a controlled dangerous substance within 1,000 feet of a school a third-degree crime. According to the League of Municipalities, however, the recently adopted cannabis law changed the state’s definition of “controlled dangerous substance” to preclude legalized cannabis. This change means that a licensed and authorized cannabis facility could operate within the 1,000-foot drug-free school zone.

But federal law continues to identify all forms of marijuana as a Schedule 1 controlled substance. Its distribution or possession “within 1,000 feet of a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 1,000 feet of a public or private youth center, public swimming pool, or video arcade facility, remains a federal criminal offense,” according to the League.

Other issues the committee will consider will be the issuance or prohibition of consumption area licenses and delivery licenses. The state will grant the delivery licenses — allowing for something like a Doordash for cannabis— and the town cannot prohibit deliveries to Montclair addresses or the time of operation of delivery services. 

Det. Sgt. Charles Cunningham, who heads the Montclair Police Department’s Narcotics Division, said the department has not seen an increase in public use of cannabis or DUIs involving marijuana since its use became legal in February. 

Regulated recreational marijuana will not be available for months, and all forms of the substance that are not regulated cannabis or medical cannabis are treated as “marijuana,” which is still defined as a “controlled dangerous substance” but is now largely decriminalized. Carrying 6 ounces or less is no longer a crime. A person found to be distributing 1 ounce or less of marijuana will be given a written warning on the first offense.

In 2016, the department began shifting from punishment to getting residents treatment in drug-related incidents, Cunningham said. 

However, Cunningham warned that operating a motor vehicle under the influence is still against the law, and he is concerned with an increase in DUIs.  

Although the odor of marijuana or hashish, either burnt or raw, no longer establishes reasonable articulable suspicion to initiate a stop or search, if the driver seems under the influence, police will call on Montclair’s drug recognition officer, Elisa Arnaldy.

Because drug testing done through urine analysis takes days, Arnaldy is called to the scene of a motor vehicle stop or accident if a driver seems under the influence of drugs. Through a 12-step process testing eye reflexes, attention span, blood pressure, heart rate and more, Arnaldy can assess impairment.

Cunningham said regulating cannabis sales in a safe environment is one positive to the new law.

“Both sellers and purchasers [on the streets] could become victims of crimes. Purchasing it off the street is less of a risk. It could lower crime,” he said, adding that MPD has seen no crimes in connection with the dispensary in town since 2012.