ASBURY PARK — After more than three years of trying to open a medical marijuana dispensary, Breakwater Treatment and Wellness will continue its lawsuit against the city after a federal judge ruled the zoning board's unanimous rejection of the project was valid.
U.S. District Court Judge Michael A. Shipp dismissed the lawsuit on April 10, ruling that Breakwater had received a fair hearing and it hadn't provided enough evidence to show city officials had conspired with a potential competitor to stop the project.
Asbury Park litigation attorney Mark Semeraro said the city was "confident with our defenses and we believe the court's dismissal was proper." But Shipp left the door open for an amended complaint, and Breakwater attorney Stephen Edelstein said the company plans to file one by the May 10 deadline.
"We're just disappointed that this is where we are. We would like nothing more than to be a productive and contributing business in the Asbury Park community," Breakwater General Manager James Froehlich said in a statement. "Tens of thousands in tax revenue could have been brought in directly to Asbury Park with only medical sales, in addition to good jobs for the community, not to mention much better access for patients in Monmouth County. We would like nothing more than to come to an amicable resolution that works for everybody."
What little progress there had been toward Asbury Park finally allowing a cannabis dispensary stalled when Breakwater filed suit in July 2023. Breakwater cultivates, manufactures and sells its own cannabis products at its longstanding Cranbury dispensary. It has a satellite location in Roselle Park.
The company has long eyed Asbury Park for expansion. In January 2021, Breakwater publicly announced it would be opening a dispensary in Asbury Park but had yet to discuss its plans with the city. That decision was the foundation of a testy relationship with city officials, which simmered until Breakwater formally filed an application to open a dispensary on Memorial Drive and First Avenue in 2022.
The zoning board unanimously rejected the dispensary plan in April 2023, with members citing legislation that expressly prohibited cannabis businesses within Asbury Park.
"If it is not (zoned), there then why come here to change it? We would set a dangerous precedent for the city council and the citizens of Asbury Park," zoning board member Daniel Harris said at the time.
Breakwater's lawsuit alleged that the company didn't receive a fair hearing, claiming zoning board members were pressured to vote against the plan by members of council. The lawsuit specifically cites statements by the city's attorney, who publicly called for board members to deny the project on behalf of the city council and mayor, and alleges that officials were trying to stack the deck in favor of Asbury Seaweed LLC, which has secured a conditional dispensary license from the state Cannabis Regulatory Commission.
Under state law, Breakwater – which was issued a permit to operate as an alternative treatment center in 2015 –requires local and state approval to expand into recreational cannabis sales.
Asbury Seaweed has yet to file formal plans with the city.
It remains unclear when – or if – Asbury Park officials will ever begin the long-expected process of drawing up regulations for cannabis businesses and issuing licenses.
Cannabis executives, entrepreneurs and investors have long seen Asbury Park as a potential cannabis hub. It seemingly checks off many of the boxes investors look at for a retail cannabis dispensary – a walkable downtown with year-round foot traffic and a bustling arts and nightlife scene. The city also qualifies as an impact zone under state cannabis laws, which give priority to any business looking to open in or hire from communities most impacted by the War on Drugs.
Many were surprised when the city opted out of issuing permits for any cannabis businesses, including not just dispensaries but cultivators, manufacturers, wholesalers, distributors and delivery companies, shortly after the New Jersey legal weed laws were enacted.
Those laws put a six-month deadline on towns to either pass an ordinance regulating cannabis and stay locked in for five years, opt out completely (and opt back in at any time) or stand pat and have their zoning codes unilaterally updated to permit cannabis businesses.
Asbury Park officials, like those in 70% of New Jersey municipalities at the time, chose to opt out until they could figure out a strategy.
Some 40 municipalities have since opted into some facet of the cannabis business – including 19 towns now allowing legal weed dispensaries.
Asbury Park likely won't be one of them as long as the Breakwater lawsuit continues.
While the city was held up in litigation with Breakwater, homegrown cannabis entrepreneurs looking to set up shop in Asbury Park have packed up and left for places like neighboring Neptune.
Last year, Good Feeling Farms owner Chris Chiappetta pleaded with Asbury Park's City Council to approve his plan for a cannabis cultivation facility. The project already had conditional licenses from the state to operate as a cultivator and wholesaler.
Raffetto, the city attorney, said the city's opt-out ordinance will remain in effect.
Asbury Park Mayor John Moor praised Good Feeling Farms, but told the owner he was "caught in the middle of a stupid litigation that has nothing to do with growing marijuana."
Mike Davis has spent the last decade covering New Jersey local news, marijuana legalization, transportation and basically whatever else is going on at any given moment. Contact him at mdavis@gannettnj.com or @byMikeDavis on Twitter.
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