• Joseph F. Berenato

No for now to legal weed

Council votes to prohibit cannabis businesses


Council votes to prohibit cannabis businesses. (Courtesy Photo)

HAMMONTON—On April 26, town council held its regular meeting at 7 p.m. in town hall—the first time the body has met in person since their meeting on October 26, 2020.


During the meeting, town solicitor Michael Malinsky introduced the first reading of Ordinance No. 004-2021.


“It’s an ordinance of the town of Hammonton to prohibit the operation of any class of cannabis businesses within its geographical boundaries, and amends Chapter 175, Article XIII,” Malinsky said.


Specifically, Malinsky said, the ordinance amends Chapter 175, Article XIII, Section 145, adding Subsection M, which is titled “Cannabis,” and states, “All classes of cannabis establishments, cannabis distributors or cannabis delivery systems as said terms are defined in the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act are hereby prohibited within the town of Hammonton, except for the delivery of cannabis items and related supplies by a licensed cannabis delivery service.”


“If you do not prohibit it within the six months—by August 22, 2021—from when the bill was signed into law, then you are forced to permit everything that the act and the regulations allow for cannabis. Those regulations are not done yet; so, in essence, without adopting this, you’d be adopting or approving a moving target without having seen the regulations. By doing this, this puts you in the driver’s seat, and this gives you the option. Now, you have affirmed your ordinances, you are now putting it that it is specifically prohibited in the town, and that gives you the option that, once the regulations come down and you have the opportunity to review them to make an informed decision as to what this council wants to do for the citizens of the town of Hammonton, what they specifically want to allow and don’t want to allow. You can also amend this ordinance at a later date. This gives you that authority to do what you deem is best for the town,” Malinsky said.


Councilman Thomas Gribbin made a motion to approve the first reading of the ordinance, which was seconded by Councilman Joseph Giralo.


Councilman Stephen Furgione reiterated that this was only the first reading of the ordinance.


“The second reading of this ordinance will come up in May; therefore, we’ll have a full public discussion if need be, if anyone wants to talk about it,” Furgione said.


Furgione also said that, because Hammonton is a Pinelands town, there were certain implications that required such an ordinance to be adopted sooner rather than later.


Malinsky explained further.


“Ultimately, because this is an addition, even though it’s an affirmation of currently what’s in our code, because this still is an ordinance in the land development section of our code, after we have our second reading we still would send it up to Pinelands for their review and approval. Their timeframe, I would estimate, is usually at least 30 days in which to look at this. We have a second reading in May; that gives us flexibility to at least provide it to Pinelands and gives them 90 days in which they can review it and get back to us and approve it,” Malinsky said.


Malinsky said that if the process is not completed by August 22, then the town is “stuck with the state’s bill and whatever regulations the state comes down with after that.”


“Like I said, we don’t even know what the regulations are going to be, because the state has yet to put out the regulations,” Malinsky said.


Mayor Stephen DiDonato said that what the issue “comes down to, in layman’s terms, is control.”


“By passing this ordinance, we’ll have control to regulate or allow—if we want to, in certain quadrants or certain locations—so the town maintains control to make sure what—if, if they want it, the town fathers and the town—that we have control over where it’s going to be and what it’s going to be. That’s what the ordinance is for tonight: to protect the town of Hammonton and to buy us some time to see all the regulations,” DiDonato said.


Furgione said he felt the ordinance was a “prudent decision.”


“It makes sense. As Mr. Malinsky said, you can’t hit a moving target. There’s got to be some clarity from the state, whether that comes in August or not, who knows, but this gives us really time to digest it, and we put a stop on it until we see what’s going on. I’m perfectly happy with the way the ordinance is right now, but at least it’s a good, solid step, and we control our own destiny here,” Furgione said.


Gribbin noted the importance of the action, as the prohibition against cannabis codified in the town of Hammonton is no longer valid.


“We need to have this back in the books, as the mayor said, to have our own control. To echo the other statements, I think it’s important, especially since we really can’t look at any other states as an example, because every state is different, and New Jersey is no exception,” Gribbin said.


The first reading was approved.


Malinsky also introduced the first reading of Ordinance No. 005-2021, establishing “a single joint municipal court with Mullica Twp., and amending Chapter 14, Article I of the general ordinances of the town of Hammonton.”


“With the first reading—and hopeful adoption of this ordinance in May—Hammonton’s joint municipal court will include Buena Vista Twp., Folsom, Hammonton, Mullica and Egg Harbor City. We will, in essence, be a western regional municipal court of Atlantic County, which will, in essence, solidify our existence,” Malinsky said.


The first reading was passed.


During his report, Malinsky also updated council on a recent appellate court decision regarding a previous lawsuit brought against the town of Hammonton.


“In 2018, as this council is aware, certain members of the Independent Volunteer Fire Company—Fire Company No. 2—were awarded $80,000, and then $85,000 in attorney’s fees, for a total of $165,000 in a superior court action, which, at all times, the town fought and disagreed with several rulings of the lower court,” Malinsky said.


Malinsky said that, on April 19, 2021, the appellate division of the state of New Jersey “came down and reversed the lower court and vacated the judgement of $80,000 to the individual plaintiffs, including the award of attorney’s fees and costs, and dismissed plaintiff’s complaint, in essence agreeing with the town of Hammonton in its arguments, finding that neither of Hammonton’s prior ordinances—which, since that time, Hammonton has moved forward and eliminated some of the ambiguities in there so that the ordinances are now much clearer—but found that neither of the ordinances relied upon by the lower court allowed for or provided for written charges or a hearing to take place.”


“The appellate division indicated that we disagree with the judge’s apparent conclusion that prior Ordinance 25-5 compelled the referral of the matter to an outside hearing officer. They further indicated that differences in discipline imposed on a volunteer firefighter, whether imposed after procedures within the fire department or imposed in some other fashion by a governing body cannot be the basis for a viable class-of-one equal protection claim,” Malinsky said.


Malinsky said that the appellate division affirmed that, once the due process claims were properly dismissed, plaintiff’s “shape-shifting equal protection claim was dubious at best.”

“They affirmed the lower court’s dismissal of the due process and procedural and substantive due process claims and the equal protection claims filed,” Malinsky said.


Malinsky said that he has contacted the town’s insurance company seeking reimbursement for the costs and fees expended by the town on the appeal.


“I’m still waiting to hear back from the insurance company. Speaking with the adjuster, they were amenable to it, but yet they still have not made a decision yet with regard to that. Just in case they do not do it, I am seeking authorization that, should the insurance company, for some reason, not move forward and reimburse the town, that the mayor and council authorize me to file a declaratory judgement action seeking reimbursement from the insurance company, with the understanding that, under a declaratory judgement action, which basically tells the insurance company to do what they’re contractually obligated to do, the town council would be entitled to attorney’s fees and costs under that action,” Malinsky said.


Malinsky said that the cost of the reimbursement was $15,283.


Councilman Sam Rodio made a motion for the authorization, which Gribbin seconded. The motion was approved.


The next meeting of town council is scheduled for May 24 at 7 p.m.