LEBANON TOWNSHIP – The prospective operator of a medical marijuana cultivation facility has filed suit against the Township Committee and the township Planning Board claiming the board's decision that the facility requires a use variance was "arbitrary, capricious and unreasonable."
The board's decision meant that The NAR Group, owner of the property on Anthony Road, would have to apply to the township Zoning Board of Adjustment for a use variance, a more rigorous and stringent process than receiving site plan approval from the Planning Board.
The Planning Board's Sept. 20 decision that NAR would need a use variance was greeted with applause by residents opposed to the proposal, which has roiled the township in controversy for months.
The 35-page lawsuit with more than 280 pages of documents, was filed Nov. 17 in Superior Court in Hunterdon County by Wilentz, Goldman and Spitzer, one of New Jersey's largest law firms. The suit says the Planning Board members "ignored the advice of their counsel" to arrive at an "unsupported and unsupportable" decision that medical marijuana is not an agricultural crop.
The lawsuit argues the property's Resource Conservation District zone allows farming as a permitted use and that NAR's application was "completely conforming" to the township's zoning with no variances sought or required.
NAR received approval from the state Cannabis Regulatory Commission in October 2021 to operate the cultivation facility and a month later, the Township Committee adopted a resolution confirming that agricultural crops are permitted in the Resource Conservation District. The lawsuit cites that the state had determined that medical marijuana fits the definition of an agricultural crop.
That led to NAR preparing plans for the facility, though discussion of the facility continued monthly at Township Committee meetings as opposition mounted and a social media campaign started.
Rahna Manglani, NAR's CEO, received anonymous telephone threats, the lawsuit said.
In addition, another NAR representative, Nitin Manglani, was told at a public meeting that he does not belong in Lebanon Township and "should move to Linden, where his kind belongs," according to the lawsuit.
Others working with NAR were threatened that their wells would be contaminated "like they have done with other projects in town," the lawsuit alleges.
Despite this opposition, NAR submitted an application in April for site plan approval of the indoor cultivation facility. At its July 19 meeting, the Planning Board ruled NAR's application was complete and John Gallina, the board's attorney, said NAR's application was for a permitted agricultural use with no variances, the lawsuit says.
Under state law, the Planning Board then had 95 days, with a deadline of Oct. 22, to act on the application unless NAR agreed to an extension.
The first public hearing was scheduled for Aug. 16, but NAR asked for an adjournment until Aug. 30. But at the Aug. 16 meeting, the board heard almost two hours of comments from the public without NAR representatives present.
The Aug. 30 hearing was again adjourned, but again the board heard comments about the plan at the meeting.
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The application was scheduled to be heard Sept. 20 but before then, Gary J. Cucchiara, attorney for objector Richard Webb, sent a letter to the board, saying the Planning Board should decline to hear the application and asked for the Board of Adjustment to determine whether it was a permitted use, arguing whether the facility was a "farm" as defined in the township's zoning ordinance.
At the Sept. 20 meeting, instead of hearing testimony on the application, board members discussed Cucchiara's letter.
One board member, Abe Abuchowski, said the marijuana facility, with its air filters, water purification equipment and 24-foot fence does not meet "the general definition of a farm."
Township Committee member Beverly Koehler, who also sits on the Planning Board, said that medical marijuana is not a crop. "I don't care that the State Agricultural Development Commission calls it a crop," because once it is processed, it becomes a "controlled substance," she said, according to a transcript of the meeting included in the lawsuit.
The Planning Board then passed a resolution, declining jurisdiction over the application and that the application should be reviewed by the Zoning Board of Adjustment.
On Nov. 3, NAR sent a letter to the Planning Board saying its application should be approved by default because the board failed to take action on the application by the 95-day deadline.
NAR's state approval for the facility is contingent upon receiving all permits by April 15, 2023.
"Every day of delay compounds the irreparable harm to NAR and its business," the lawsuit charges, adding "NAR is at risk of losing its business and the competitive edge it sought to achieve."
The 40-acre site that formerly housed the Diamond Aerosol manufacturing facility had been operated more than a decade ago as a research and development facility for internal coatings of aerosol cans, according to a 2011 Environmental Protection Agency report.
Before that it was used by the Diamond East Corporation to manufacture cosmetics and personal protection devices containing tear gas, pepper spray and other specialty chemical products, for about three decades.
In 2011, the EPA report said, the site contained an old stone barn which housed the original cosmetics business, a large stone house used as a residence, two warehouses and various out-buildings used for storage, offices and vehicles.
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Mike Deak is a reporter for mycentraljersey.com. To get unlimited access to his articles on Somerset and Hunterdon counties, please subscribe or activate your digital account.
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