NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1755-22
BIG SMOKE LLC,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v. March 18, 2024
APPELLATE DIVISION
TOWNSHIP OF WEST MILFORD,
COUNCIL OF WEST MILFORD
TOWNSHIP, and SOULFLORA,
INC.,
Defendants-Respondents.
______________________________
Argued on January 31, 2024 – Decided March 18, 2024
Before Judges Firko, Susswein and Vanek.
On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-3052-22.
Seth R. Tipton argued the cause for appellant (Florio
Perrucci Steinhardt Cappelli Tipton & Taylor LLC,
attorneys; Seth R. Tipton, Sarah K. Powell, and Wade
Lawrence Dickey, of counsel and on the briefs).
Edward R. Pasternak argued the cause for respondents
Township of West Milford and Council of West
Milford (Dorsey & Semrau, LLC, attorneys; Fred C.
Semrau, of counsel; Edward R. Pasternak, on the
brief).
Eric D. Reiser argued the cause for respondent
SoulFlora, Inc. (Shapiro, Croland, Reiser, Apfel & Di
Iorio, LLP, attorneys; Eric D. Reiser, on the brief).
The opinion of the court was delivered by
VANEK, J.S.C. (temporarily assigned)
This appeal presents the novel issue of the circumstances under which a
municipality may decline to adopt a Resolution of Support (ROS) for an
applicant seeking to obtain a Class 5 Cannabis Retailer License (CRL) from
the State of New Jersey Cannabis Regulatory Commission (the Commission)
under N.J.S.A. 24:6I-31 to -56, the Cannabis Regulatory, Enforcement
Assistance, and Marketplace Modernization Act (CREAMMA).
Plaintiff Big Smoke LLC filed a verified complaint (complaint) and an
emergent order to show cause (the OTSC) after defendants, the Township of
West Milford and the Council of West Milford Township (collectively, the
Township), effectively denied plaintiff's request for a ROS by not placing it on
a public meeting agenda. The Township maintains that the de facto denial of
plaintiff's request for a ROS was not arbitrary, capricious or unreasonable
since supporting plaintiff's proposed business location would violate the
Township's ordinance requiring licensed cannabis retailers to be not less than
2,500 feet from each other. Plaintiff sought temporary and preliminary
injunctive relief to prevent defendant SoulFlora, Inc. (SoulFlora) from
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establishing a cannabis business; enjoining the Township from issuing a ROS
to any other new cannabis business applicants; revoking SoulFlora's ROS; and
requesting attorneys' fees and costs. The Commission was not named as a
defendant in the lawsuit.
Plaintiff appeals from two January 6, 2023 Law Division orders denying
plaintiff's OTSC and dismissing its complaint with prejudice as to both
SoulFlora and the Township. Based on a careful review of the record and the
applicable law, we affirm the trial court's denial of plaintiff's OTSC and
dismissal of plaintiff's complaint against SoulFlora with prejudice. We vacate
the January 6, 2023 order dismissing the claims against the Township with
prejudice and order a limited remand to the trial court to issue a statement of
reasons pursuant to Rule 1:7-4(a), with an accompanying order.
I.
On May 31, 2019, SoulFlora's majority shareholders formed Demeter
Investment Group (Demeter) in order to apply to the Commission for a CRL.
On June 9, 2021, the Township adopted a ROS for Demeter's CRL application
to the Commission.
On July 14, 2021, the Township adopted a series of ordinances
addressing the sale and use of cannabis to further the Township's goal "[t]o
protect the public health, safety, and general welfare of the residents of the
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Township . . . by establishing strict limits and regulations on the lawful sale
and use of legal cannabis" and "[t]o establish regulations on the time, location
and manner of licensed cannabis establishments and activities." West Milford,
N.J., Ordinance 2021-029 (July 14, 2021); West Milford, N.J., Code § 500-
196(1) and (4).
In September 2021, the Commission informed Demeter that a CRL could
not be issued under a "doing business as" designation. The shareholders began
the process of incorporating SoulFlora. On September 30, 2021, the Township
issued a conditional zoning permit to Demeter for property located on Route
23, designated as Block 14605, Lot 4.04 (the SoulFlora Property) in
Newfoundland, an unincorporated community located within West Milford,
subject to "planning board and site plan approval," as well as any applicable
building permits.
On October 20, 2021, the Township adopted a ROS for SoulFlora's CRL
application to the Commission. On the same day, the Township adopted an
ordinance regulating the number of local CRLs the Township could issue
annually. West Milford, N.J., Ordinance 2021-036 (Oct. 20, 2021). On
October 22, 2021, the Township reissued the conditional zoning permit for the
SoulFlora Property to reflect the newly incorporated business entity with a
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notation that the permit was initially issued for the location on September 30,
2021.
On December 9, 2021, the Township issued a zoning permit to plaintiff
setting forth that the proposed retail cannabis sale use on Block 14605, Lot 2
on Route 23 in Newfoundland (the Big Smoke property) was permitted under
the Township's then-governing zoning ordinance, subject to conditions
including obtaining site plan approval from the planning board and a
conditional use permit.
On April 6, 2022, the Township adopted Ordinance No. 2022-015 (the
Buffer Ordinance), which requires licensed cannabis retail businesses to be
located no less than 2,500 feet away from each other. West Milford, N.J.,
Code § 500-205. The distance between plaintiff's proposed location and
SoulFlora's is less than 500 feet.
On October 18, 2022, plaintiff emailed the Township Administrator
requesting a ROS in order to apply for a CRL from the Commission. On
October 24, 2022, the Township Administrator replied by email, denying the
request to place the item on the Council's agenda. On October 27, 2022,
plaintiff sent a letter request for a ROS to the Mayor, with a copy to the
Township Administrator, asking that the matter be added to the Council's next
meeting agenda. On October 31, 2022, the Commission approved SoulFlora's
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application for a CRL, allowing SoulFlora to schedule the final inspections
required under CREAMMA.
On November 1, 2022, the Township issued a zoning permit for a "Class
5 Cannabis retail and supplies" establishment on the SoulFlora property as
"[p]ermitted by [o]rdinance" and without conditions, setting forth an approval
date of September 30, 2021. On the same date, the Township Attorney
notified plaintiff by telephone that its request to the Mayor was denied, which
plaintiff alleges was predicated on its proposed location violating the Buffer
Ordinance. Plaintiff sent an additional letter to the Mayor and the Township
Attorney dated November 1, 2022, providing additional reasons for its request
for a ROS, but the record does not indicate that the Township responded.
On December 8, 2022, plaintiff filed its OTSC in the Law Division
against the Township and SoulFlora, demanding:
a. Temporary and preliminary injunctive relief
enjoining SoulFlora from relying upon the [ROS]
memorializ[ed] in Resolution 2021-390 pending
the entry of final judgment in this matter;
b. Temporary and preliminary injunctive relief
enjoining the Township from proceeding with the
permitting and licensing process at the municipal
level for Class 5 [CRLs], including the issuance of
additional [ROSs] for other Class 5 cannabis
retailer applicants or State permittees;
c. Revoking SoulFlora's [ROS] memorialized in
Resolution 2021-390 and remanding to the
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Township for reconsider[ation] of Big Smoke's
request for a Resolution of Support;
d. Attorney's fees and costs of suit; and
e. For any other relief the [c]ourt deems just and
proper.
On December 21, 2022, the trial court entered an order granting ex
parte temporary restraints against defendants – enjoining SoulFlora from
relying on the ROS and preventing the Township from issuing a ROS to other
applicants – and setting the OTSC return date for January 5, 2023. After a
hearing on December 22, 2022, the trial court dissolved the temporary
restraints and entered an amended OTSC.
On December 25, 2022, the Township filed an answer and opposed the
injunctive relief sought, asserting it properly exercised its ordinance-based
discretion not to place plaintiff's request for a ROS on the Council's agenda
and contending the de facto denial was appropriate based on the Buffer
Ordinance. On December 28, 2022, SoulFlora filed opposition to the OTSC
and a cross-motion to dismiss plaintiff's complaint for failure to state a claim
under Rule 4:6-2(e). SoulFlora argued that it was only a necessary party to
count one of plaintiff's complaint, through which plaintiff sought the remedy
of injunctive relief, and there was no viable cause of action pleaded against it.
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On January 3, 2023, plaintiff filed a reply brief in support of the OTSC
and in opposition to the cross-motion. The following day, the Township filed
a letter joining SoulFlora's cross-motion to dismiss the complaint and asserting
it opposed plaintiff's request for injunctive relief.
The trial court heard argument on January 6, 2023, and rendered an oral
decision denying plaintiff's request for injunctive relief and dismissing the
complaint against SoulFlora and the Township. Although the trial court
entertained argument from the parties as to the request to dismiss the
complaint with prejudice, the trial court in its oral decision did not definitively
set forth if the dismissal as to the Township was with or without prejudice.
That day, the trial court entered two orders. The first order granted
SoulFlora's cross-motion to dismiss the complaint against it with prejudice.
The second order dismissed plaintiff's complaint against all defendants with
prejudice, denied plaintiff's request for temporary and preliminary injunctive
relief, and denied plaintiff's request to vacate SoulFlora's ROS. On January 9,
2023, the trial court issued a written statement of reasons for the entry of both
orders. This appeal followed.
II.
On appeal, plaintiff asserts that the Township's refusal to add its request
for a ROS to the Council's meeting agenda was arbitrary, capricious and
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unreasonable because it was based on an incorrect application of the Buffer
Ordinance. Plaintiff argues the trial court erred in finding the ROS was not
required to be added to the agenda and asserts the Buffer Ordinance did not
apply since SoulFlora was not "licensed" at the time plaintiff's request for a
ROS was submitted. Plaintiff additionally asserts the trial court applied the
incorrect standard of review and improperly dismissed the complaint with
prejudice as to SoulFlora and the Township rather than allowing plaintiff to
file an amended complaint.
SoulFlora and the Township seek affirmance. We address the parties'
arguments in turn.
III.
"An OTSC may properly be utilized where a party seeks some form of
emergent, temporary, interlocutory or other form of interim relief such as the
preservation of the status quo pending final hearing of the cause." Solondz v.
Kornmehl, 317 N.J. Super. 16, 20 (App. Div. 1998). To be afforded injunctive
relief, plaintiff is required to establish each of the following factors pursuant to
Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982), by clear and convincing
evidence, Brown v. City of Paterson, 424 N.J. Super. 176, 183 (App. Div.
2012):
(1) relief is needed to prevent irreparable harm; (2) the
applicant's claim rests on settled law and has a
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reasonable probability of succeeding on the merits;
and (3) balancing the relative hardships to the parties
reveals that greater harm would occur if a stay is not
granted than if it were.
[Garden State Equal. v. Dow, 216 N.J. 314, 320
(2013) (citation omitted); see Crowe, 90 N.J. at 132-
34.]
The trial court's January 9, 2023 statement of reasons sets forth that
plaintiff failed to establish an entitlement to preliminary injunctive relief
because it did not satisfy any of the Crowe factors. Turning first to the
requirement that plaintiff establish it will suffer immediate, irreparable harm
by clear and convincing evidence, the trial court found plaintiff did not meet
this threshold since it could mitigate its harm by requesting a ROS for a
different location, more than 2,500 feet from SoulFlora. The record before the
trial court also established that any harm to plaintiff could be mitigated or
remedied by monetary damages.
At oral argument before this court, plaintiff posited for the first time that
it is facing irreparable harm because the Township has already issued the
maximum of ten local Class 5 CRLs permitted under West Milford, N.J., Code
§ 500-198(a)(5). Although plaintiff asserts it is unable to request a ROS for a
different location, there is no factual evidence to support this argument in the
record before us and, accordingly, this argument is not appropriate for us to
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consider on appeal absent a motion to expand the record, which was not filed.
See Scott v. Salerno, 297 N.J. Super. 437, 447 (App. Div. 1997) ("[A]ppellate
courts will not consider evidence submitted on appeal that was not in the
record before the trial court.").
Although failure to establish all of the Crowe factors by clear and
convincing evidence typically requires denial of an OTSC, plaintiff argues
there are circumstances where the court has discretion to use a less rigid
approach in order to preserve the status quo. We held in Waste Management
of New Jersey, Inc. v. Morris County Municipal Utilities Authority, 433 N.J.
Super. 445 (App. Div. 2013):
This less rigid approach, for example, permits
injunctive relief preserving the status quo even if the
claim appears doubtful when a balancing of the
relative hardships substantially favors the movant, or
the irreparable injury to be suffered by the movant in
the absence of the injunction would be imminent and
grave, or the subject matter of the suit would be
impaired or destroyed.
[Id. at 454 (quoting Waste Mgmt. of N.J., Inc. v.
Union Cty. Utils. Auth., 399 N.J. Super. 508, 520
(App. Div. 2008)).]
Thus, we proceed to consider the third Crowe factor, balancing the
relative hardships to the parties, which plaintiff argues weighs in its favor.
SoulFlora's application for a CRL was approved by the Commission on
October 31, 2022. Preservation of the status quo at the time of plaintiff's
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OTSC, filed December 8, 2022, would necessarily allow SoulFlora to continue
to operate as a fully licensed cannabis retailer, which it is already permitted to
do.
Even if we accept plaintiff's proffer that the status quo at the time its
complaint was filed was neither plaintiff nor SoulFlora were operational, the
clear and convincing evidence in the record does not establish the balance of
hardships weighs in favor of granting emergent relief. Plaintiff admitted that
SoulFlora is not culpable and plaintiff only added it as a party because of the
potential impact on SoulFlora's rights. We are unconvinced that the balance of
hardships favors depriving a fully licensed business entity, with no liability
alleged against it, from operating during the pendency of this litigation.
IV.
Both the parties and the trial court focused on the second prong of
Crowe: plaintiff's likelihood of success on the merits. Plaintiff asserts that it
is likely to succeed on the merits of its claims against the Township since the
failure to add plaintiff's request for a ROS to the agenda was arbitrary,
capricious or unreasonable, and was tantamount to a denial predicated on an
incorrect application of the Buffer Ordinance.
We apply a deferential standard of review. "[M]unicipal actions enjoy a
presumption of validity." Bryant v. City of Atl. City, 309 N.J. Super. 596, 610
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(App. Div. 1998). Therefore, appellate courts may only disturb a "[m]unicipal
action . . . if it is arbitrary, capricious or unreasonable." Ibid.
First, we consider plaintiff's assertion that the Township improperly
declined to place its request for a ROS on the Council's next public meeting
agenda. The Township code sets forth the following procedure for a member
of the public to request that a matter be included on the Council's public
meeting agenda:
Any member of the public, group or organization
wishing to seek Council discussion or action on any
item must submit a request in writing to the Office of
the Township Clerk during regular business hours.
The Clerk shall cause same to be provided to the
Mayor, Council and Administrator when providing the
agenda for the next regularly scheduled Council
meeting. The Mayor and/or Administrator may cause
such items to be placed on a future workshop agenda
for discussion or a future regular meeting for action.
Failure of the Mayor and/or Administrator to place
such items on a future agenda shall be construed as a
directive to forego the matter. Any Council member
may, at the next meeting after receipt of such requests,
seek consensus from a majority of the Council to have
such matters placed on a future workshop agenda for
discussion or a future regular meeting agenda for
action. Failure [of] any Council member to seek such
consensus shall be construed as Council's directive to
forgo the matter.
[West Milford, N.J., Code § 42-5(b).]
The record establishes that plaintiff asked the Township Administrator
and the Mayor to place its request for a ROS on the Council's next public
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meeting agenda. Under the Township code, if the Mayor or Administrator
declines to put a matter on the Council's agenda, the omission is "construed as
a directive to forego the matter." West Milford, N.J., Code § 42-5(b). There is
no evidence in the record that plaintiff pursued any other course of action to
request the ROS. Nor is there any evidence proffered that the Township failed
to comply with the process set forth in the Township's ordinance.
Plaintiff acknowledges the failure to add its request to the Council's
agenda constituted a denial. Since there was no express denial, rather a de
facto denial predicated on a failure to act, there is no articulable or identifiable
municipal action for us to review beyond failing to place the item on the
agenda. Nonetheless, we address the substantive arguments raised by the
parties on this portion of the Crowe standard.
Accepting that the de facto denial of plaintiff's request for a ROS was
premised on application of the Buffer Ordinance, we conclude, as did the trial
court, plaintiff does not have a likelihood of success on its claim that the
Township's failure to adopt a ROS for plaintiff's CRL application based upon
its proposed geographic location was arbitrary, capricious or unreasonable.
Our conclusion is predicated on well-settled New Jersey municipal law
coupled with the plain language of CREAMMA itself.
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Adopted by the Legislature in 2021, CREAMMA is far-reaching and
intended to reflect "the intent of the people of New Jersey to adopt a new
approach to our marijuana policies" by regulating the manufacturing,
distribution, and usage of cannabis within the State. N.J.S.A. 24:6I-32(a) and
-32(c). The Legislature established and empowered the Commission with "all
powers necessary or proper" to execute its duties, including:
(1) To regulate the purchase, sale, cultivation,
production, manufacturing, transportation, and
delivery of cannabis or cannabis items . . . .
(2) To grant, refuse, suspend, revoke, cancel, or take
actions otherwise limiting licenses or conditional
licenses for the sale . . . of cannabis items, or other
licenses in regard to cannabis items, and to permit, in
the [C]ommission's discretion, the transfer of a license
between persons . . . .
[N.J.S.A. 24:6I-34(b).]
CREAMMA establishes that a prospective business must obtain a CRL
issued by the Commission in order to operate a premises where cannabis is
sold. N.J.S.A. 24:6I-42. CREAMMA's corresponding regulatory framework,
N.J.A.C. 17:30-1.1 to -8.3, sets forth that a CRL applicant must submit the
following to the Commission, among other documentation:
***
7. Evidence of compliance with local codes and
ordinances including, but not limited to:
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i. The distance from the closest church,
synagogue, temple, or other place used
exclusively for religious worship; or
ii. The distance to the closest school,
playground, park, or child daycare facility;
8. Zoning approval, which shall consist of a letter or
affidavit from appropriate officials of the municipality
stating that the location will conform to municipal
zoning requirements allowing for activities related to
the operations of the proposed cannabis business, and
any variances granted concerning the operation of a
cannabis business;
9. Proof of local support, which shall be demonstrated
by a resolution adopted by the municipality's
governing body, or where the municipality has no
governing body, a written letter of support from the
municipality's executive;
[N.J.A.C. 17:30-7.10(b)(7)-(9).]
The requirement set forth in paragraph nine mandates "[p]roof of local
support" embodied in a municipal governing body resolution. Given the
relative infancy of the licensing scheme set forth in CREAMMA, there is no
published decisional law that has thus far addressed municipal discretion to
issue or withhold "local support" for a CRL applicant. N.J.A.C. 17:30-
7.10(b)(9).
CREAMMA itself specifically empowers municipalities to regulate
cannabis establishments within their borders. So long as they are "not in
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conflict with the provisions of" CREAMMA, municipalities may adopt
ordinances or regulations:
(1) governing the number of cannabis establishments,
distributors, or delivery services, as well as the
location, manner, and times of operation of
establishments and distributors, but the time of
operation of delivery services shall be subject only to
regulation by the [C]ommission; and
(2) establishing civil penalties for violation of an
ordinance or regulation governing the number of
cannabis establishments, distributors, or delivery
services that may operate in such municipality, or
their location, manner, or the times of operations.
[N.J.S.A. 24:6I-45(a).]
CREAMMA sets forth that when the Commission "receives an
application for initial licensing or renewal of an existing license for any
cannabis establishment" it is the duty of the Commission to "provide . . . a
copy of the application to the municipality in which the establishment . . . is to
be located," at which time:
(1) . . . . The municipality shall determine whether the
application complies with its local restrictions on the
number of cannabis establishments . . . or their
location, manner, or times of operation, and the
municipality shall inform the [C]ommission whether
the application complies with its local restrictions.
(2) A municipality may impose a separate local
licensing or endorsement requirement as a part of its
restrictions on the number of cannabis establishments
. . . or their location, manner, or times of operation. A
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municipality may decline to impose any local
licensing or endorsement requirements, but a local
jurisdiction shall notify the [C]ommission that it either
approves or denies each application forwarded to it.
[N.J.S.A. 24:6I-45(c).]
We are tasked with looking first to the plain language of a given statute
to derive meaning. Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522
(2004). We conclude that under CREAMMA, municipalities are delegated the
authority to promulgate location and density requirements for cannabis retail
businesses and are statutorily vested with the right to decline approval for
applicants who fail to meet those requirements. In furtherance of this express
regulatory power, the Township adopted an ordinance setting forth the
following goals:
(1) To protect the public health, safety, and general
welfare of the residents of the Township of West
Milford by establishing strict limits and regulations on
the lawful sale and use of legal cannabis.
(2) To regulate the operation of licensed cannabis
establishments to protect against the unlawful
operation and use of cannabis and marijuana.
(3) To establish certain conditions and limitations on
the number of cannabis licenses authorized to be
issued within the Township of West Milford.
(4) To establish regulations on the time, location and
manner of licensed cannabis establishments and
activities.
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(5) To prohibit the operation of any cannabis
establishments and other cannabis marketplace
activities within the Township unless strictly in
conformance with state and local laws.
(6) To establish limitations on the number and types
of cannabis establishment licenses and cannabis
marketplace activities.
(7) To establish local regulations as to the time,
location, and manner of cannabis establishments and
cannabis marketplace operations and activities in
accordance with state law.
[West Milford, N.J., Code § 500-196.]
The Township established a requirement that a cannabis retail business
obtain a "municipal cannabis establishment license[], otherwise known as a
'local annual cannabis license'" in order to operate, with a maximum of ten
Class 5 licenses to be issued annually. West Milford, N.J., Code § 500-198(a).
Consistent with CREAMMA's authorization to allow local geographic
regulation of cannabis businesses, on April 6, 2022, the Township adopted the
Buffer Ordinance, setting forth:
A. There shall be a minimum distance of not less than
2,500 feet between licensed cannabis retail businesses.
B. Such measurement shall be obtained by measuring
the nearest entrance of one location which is licensed,
to the nearest entrance of the second location which
seeks to be licensed.
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C. Such measurement shall be measured on how a
pedestrian would normally walk, and not in a straight
line "as the crow flies."
D. As to distance prohibitions from parks and or
schools and as reflected in this chapter, such distances
shall be measured in the normal way that a pedestrian
would normally walk from the nearest entrance, to
such a park or school and not in a straight line "as the
crow flies."
[West Milford, N.J., Code § 500-205.]
"Although a municipality's informal interpretation of an ordinance is
entitled to deference . . . the meaning of an ordinance's language is a question
of law that we review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005)
(internal citations omitted). This same standard is applied to the interpretation
of a municipal law by the trial court. Dunbar Homes, Inc. v. Zoning Bd. of
Adjustment, 448 N.J. Super. 583, 595 (App. Div. 2017).
The Buffer Ordinance sets forth that "[t]here shall be a minimum
distance of not less than 2,500 feet between licensed cannabis retail
businesses." West Milford, N.J., Code § 500-205(a) (emphasis added). It is
undisputed that at the time plaintiff first requested a ROS from the Township,
SoulFlora had not yet received a CRL from the Commission. Therefore,
plaintiff argues, the Buffer Ordinance could not have served as the predicate
reason for the denial of its request for a ROS since the ordinance only
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regulates licensed businesses and SoulFlora was not licensed at the time of the
request.
Although we agree the Buffer Ordinance would not have been
enforceable against plaintiff for the purposes of levying penalties, we conclude
that, to the extent the Township proffers this ordinance formulated the basis
for the de facto denial, consideration of the ordinance's requirements as they
relate to plaintiff's proposed location was not arbitrary, capricious or
unreasonable. It would be consistent with the spirit of the Buffer Ordinance as
well as CREAMMA for the Township to decline to publicly support a cannabis
business from moving forward with the Commission's licensing process if its
proposed location would be precluded as within 2,500 feet of a previously
supported CRL applicant.
Even if we found the Buffer Ordinance was improperly considered as a
basis for the de facto denial of plaintiff's application for a ROS, plaintiff has
not shown that the Township acted arbitrarily, capriciously or unreasonably in
withholding support for its CRL application. Plaintiff has not presented any
legal authority establishing it was entitled to support from the Township by
way of a ROS. As there are no provisions under CREAMMA, Township
ordinance, or decisional law entitling a CRL applicant the right to a ROS, the
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determination is within the discretion of the municipality so long as its actions
are not arbitrary, capricious or unreasonable.
Under N.J.S.A. 40:48-2, municipalities have discretionary police powers
to "make, amend, repeal and enforce such other ordinances, regulations, rules
and by-laws" that "it may deem necessary and proper for the good government,
order and protection of persons and property, and for the preservation of the
public health, safety and welfare of the municipality and its inhabitants " so
long as those adoptions are "not contrary to the laws of [New Jersey] or of the
United States." A municipality's police powers are not unbridled in nature and
have been tempered through decisional law such that they cannot be exercised
in an arbitrary, capricious or unreasonable manner so as to violate the
standards of due process of law. See Hudson Circle Servicenter, Inc. v.
Kearny, 70 N.J. 289, 301 (1976).
To this end, we construe the application of discretion afforded to a
municipality in context of the "broad 'reservoir of police power,'" Dome
Realty, Inc. v. City of Paterson, 83 N.J. 212, 230 (1980) (quoting Inganamort
v. Borough of Fort Lee, 62 N.J. 521, 530 (1973)), and limit the permissibility
of municipal action only so that "'such action [is not] prohibited by or
inconsistent with the Constitution or the other statutes.'" Ibid. (quoting Fred v.
Mayor of Old Tappan, 10 N.J. 515, 521 (1952)); see also Inganamort, 62 N.J.
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at 528 (1973) (noting that "police power . . . enable[s] local government" to
utilize its authority in order to "meet . . . needs of the community" via
"measures tailored to the local scene").
Viewed through this lens, we are unpersuaded that there is sufficient
evidence in the record to conclude the Township acted arbitrarily, capriciously
or unreasonably. It is sufficient the Township was made aware of SoulFlora's
pending CRL application to the Commission and declined to extend its support
by way of a ROS to another similar business that would, if successfully
licensed by the State, ultimately violate the Township's own Buffer Ordinance.
Although plaintiff proffers the Township's ordinances lack required clarity and
specificity as to the standards for adoption of a ROS, we find no statute or case
law dictating a municipal ordinance must directly address every detail of a
discretionary approval process in order to be valid. The de facto denial of
support for plaintiff's CRL application is just one of the myriad of
discretionary acts the Township can effectuate under our decisional law and
the expansive police powers embedded in our jurisprudence.
V.
We turn next briefly to plaintiff's assertion that by receiving a zoning
permit before SoulFlora did, plaintiff's right to establish a cannabis business in
the Township vested first. Setting aside the documentation in the record
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indicating SoulFlora was issued a conditional zoning permit before plaintiff,
acceptance of plaintiff's argument would require us to conclude that a zoning
permit confers an enforceable right. We decline to draw that conclusion.
Plaintiff offers no authority for its position. Conversely, the Township
code provides guidance on the issue as follows:
The Township Zoning Officer shall issue a zoning
permit where it is determined that:
(1) The structure or use is permitted in the proposed
location; or
(2) The structure or use exists as a nonconforming use
and/or structure, or the structure is permitted under §
500-72, Nonconforming lots, structures and uses, of
this Land Development Ordinance; or
(3) The structure or use is permitted by the terms of a
variance.
[West Milford, N.J., Code § 470-44(c).]
The process by which zoning permits are granted is ministerial and
unlike the discretionary endorsement of a request for a ROS under
CREAMMA. The issuance of a zoning permit is a required ministerial act
should the proposed location meet the ordained requirements based on the
plain language of the Township code. "A ministerial duty is one that 'is
absolutely certain and imperative, involving merely the execution of a set task,
and when the law which imposes it prescribes and defines the time, mode and
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occasion of its performance with such certainty that nothing remains for
judgment or discretion.'" Vas v. Roberts, 418 N.J. Super. 509, 522 (App. Div.
2011) (quoting Ivy Hill Park Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n,
221 N.J. Super. 131, 140 (App. Div. 1987)).
We see no merit in plaintiff's argument that the ministerial act of issuing
a zoning permit vested plaintiff with an enforceable right to a ROS for its
cannabis business in the Township. While a zoning permit is required before
an applicant may "commence the construction, reconstruction, alteration,
conversion or installation of a structure or building," there are no rights
afforded to a recipient solely by being granted such a permit. West Milford,
N.J., Code § 470-44(a)(1). See Harz v. Borough of Spring Lake, 234 N.J. 317,
321 (2018) (clarifying "a zoning officer must issue a zoning permit before a
construction official can issue a permit" to begin construction but that the
zoning permit alone does not give permission for construction to commence).
The record before the trial court establishes that plaintiff failed to show
a likelihood of success on the merits by clear and convincing evidence as
required under the second prong of Crowe. Accordingly, we affirm the trial
court's denial of plaintiff's OTSC.
VI.
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We also affirm the dismissal of plaintiff's complaint against SoulFlora
with prejudice since plaintiff concedes that SoulFlora has "not . . . d[one]
anything wrong." The trial court granted SoulFlora's motion to dismiss with
prejudice because "[p]laintiff does not plead any viable causes of action
against SoulFlora, no additional facts could be plead that would give rise to a
cause of action against SoulFlora, and further proceedings will only be a
fishing expedition."
We review a trial court's decision to grant a motion to dismiss for failure
to state a claim upon which relief can be granted under Rule 4:6-2(e) de novo.
Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021). When
considering a Rule 4:6-2(e) motion, "[a] reviewing court must examine 'the
legal sufficiency of the facts alleged on the face of the complaint,' giving the
plaintiff the benefit of 'every reasonable inference of fact.'" Ibid. (quoting
Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, PC , 237
N.J. 91, 107 (2019)).
In determining the adequacy of the pleadings to sustain the motion, the
court must determine "whether a cause of action is 'suggested' by the facts."
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)
(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)); see
also Wreden v. Twp. of Lafayette, 436 N.J. Super. 117, 124-25 (App. Div.
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2014) ("in determining whether dismissal under Rule 4:6-2(e) is warranted, the
court should not concern itself with plaintiffs' ability to prove their
allegations").
"Dismissals under Rule 4:6-2(e) are ordinarily without prejudice." Mac
Prop. Grp. LLC v. Selective Fire & Cas. Ins. Co., 473 N.J. Super. 1, 17 (App.
Div. 2022). However, there are times when a dismissal with prejudice is
mandated, such as when the facts are "palpably insufficient to support a claim
upon which relief can be granted" and when "discovery will not give rise to" a
successful claim. Ibid. (first quoting Rieder v. State, 221 N.J. Super. 547, 552
(App. Div. 1987); and then quoting Dimitrakopoulos, 237 N.J. at 107).
The only relief that plaintiff validly sought as to SoulFlora was an
injunction. An injunction is a remedy rather than a cause of action. Rule
4:52-1; see Madej v. Maiden, 951 F.3d 364 (6th Cir. 2020); see also Aly v.
Garcia, 333 N.J. Super. 195, 203 (App. Div. 2000) (differentiating when "a
cause of action . . . gives rise to a claim of damages, as opposed to a claim for
injunctive relief"). Plaintiff acknowledges no cause of action against
SoulFlora was pleaded and that it is not a potentially culpable party. On this
basis, we find that the complaint against SoulFlora was properly dismissed
with prejudice.
VII.
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Plaintiff further asserts that the trial court improperly dismissed the
claims against the Township with prejudice both procedurally and
substantively. Although the Township filed a letter with the trial court on
notice to all parties advising it was joining SoulFlora's notice of cross -motion
seeking similar relief without objection, plaintiff now argues that the trial
court erred in considering dismissal of the claims against the Township with
prejudice because the cross-motion was never amended or supplemented to
include this relief.
SoulFlora and the Township argue that plaintiff has improperly raised
this procedural argument for the first time on appeal. We consider arguments
not raised to the trial court or otherwise preserved for appeal under the plain
error standard, reversing only where the error was "clearly capable of
producing an unjust result." R. 2:10-2. "The mere possibility of an unjust
result is not enough." State v. Funderburg, 225 N.J. 66, 79 (2016).
"The minimum requirements of due process of law are notice and an
opportunity to be heard." Klier v. Sordoni Skanska Constr. Co., 337 N.J.
Super. 76, 84 (App. Div. 2001). "The opportunity to be heard contemplated by
the concept of due process means an opportunity to be heard at a meaningful
time and in a meaningful manner" with all parties having sufficient notice of
the scope of motions pursuant to the Rules of Court. Ibid.
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Even if this matter had been raised before the trial court, plaintiff has not
established that allowing the Township to join the cross-motion by way of
letter, rather than formal amendment of the cross-motion, created prejudice or
an unfair result. The trial court heard substantive arguments from all parties
on the matter, without objection from plaintiff. We conclude plaintiff has not
met the plain error standard since there was no due process deprivation
yielding an unjust result.
VIII.
Although we reject plaintiff's newly minted argument that the trial court
erred in dismissing the complaint because the Township did not properly join
SoulFlora's motion, we nonetheless are compelled to note the trial court has
not demonstrated sufficient foundation for a dismissal with prejudice because
its written decision does not articulate a basis for relief granted to the
Township.
It is incumbent on the trial court to state specific reasons when
dismissing a complaint with prejudice. Hoffman v. Hampshire Labs, Inc., 405
N.J. Super. 105, 116 (App. Div. 2009); see also Klajman v. Fair Lawn Ests.,
292 N.J. Super. 54, 61 (App. Div. 1996) ("The point is that a motion for
dismissal with prejudice requires the trial court to make an informed decision
based upon a full record, and express its reasons for that decision before the
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case is dismissed."). A trial court's failure to clearly state all conclusions of
fact and law that support a dismissal with prejudice "constitutes a disservice to
the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J.
563, 569-70 (1980).
A dismissal without prejudice allows a plaintiff to amend and refile a
complaint that addresses and corrects prior deficiencies. See Printing Mart-
Morristown, 116 N.J. at 746. Plaintiff argues that since it was deprived of this
opportunity, the January 6, 2023 order dismissing the complaint with prejudice
as to the Township must be vacated and remanded. We lack the ability to
consider the merits of plaintiff's argument without a statement of reasons from
the trial court.
Therefore, the order dismissing all claims against Township with
prejudice is hereby vacated and remanded with the limited instruction to the
trial court to issue an amended order with a statement of reasons pursuant to
Rule 1:7-4(a). We offer no view on the outcome of the decision.
IX.
Finally, we consider plaintiff's contention that SoulFlora is an
indispensable party and cannot be dismissed from this action until its final
resolution. "Whether a party is indispensable is fact sensitive." Int'l Bhd. of
Elec. Workers Loc. 400 v. Borough of Tinton Falls, 468 N.J. Super. 214, 225
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(App. Div. 2021). "As a general proposition . . . a party is not truly
indispensable unless he has an interest inevitably involved in the subject
matter before the court and a judgment cannot justly be made between the
litigants without either adjudging or necessarily affecting the absentee's
interests." Toll Bros., Inc. v. Twp. of W. Windsor, 334 N.J. Super. 77, 90-91
(App. Div. 2000) (quoting Allen B. Du Mont Labs., Inc. v. Marcalus Mfg. Co.,
30 N.J. 290, 298 (1959)).
Plaintiff contends SoulFlora is an indispensable party because "its rights
were potentially impacted" by the outcome of the litigation. To the extent we
have vacated and remanded plaintiff's claim against the Township to the trial
court, SoulFlora shall remain in the case as an indispensable party for notice
purposes only since there are no allegations of liability against it. See Kent
Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 445 (2011)
(determining that it is left to the discretion of the court to require "notice of the
action be given to any non-party").
Affirmed in part; vacated in part; and remanded for limited proceedings
consistent with this opinion. We do not retain jurisdiction.
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