HIGHLANDS –

In a 22 page resolution with numerous attachments, the Land Use Board unanimously approved the memorialization which would allow for The Honorable Plant, LLC to be approved for  a cannabis retail store at 123 Bay Ave.. The site  is the former Food Basket supermarket of half a century ago, more recently  a pizzeria.

Operator of the The Honorable Plant for the applicant is Elizabeth Stavola, who has extensive credentials and experience in the cannabis business and is considered a nationally recognized  cannabis retailer for ten years.

   The Vote

Chairman Robert Knox made the motion, seconded by Vice-Chairman Ann Marie Tierney, and approved by members Mayor Carolyn Broullon, Councilwoman Joann Olszewski, Police Chief Robert Burton,  Bruce Kutash, Laurie La Russo,  Mark Zill, with members  Helen Chang and Dennis Zienda absent.  Montecalvo, who was in attendance at the meeting, recused himself from any action because of a possible conflict of interest.

Under terms of the resolution, the Honorable Plant was approved for minor site plan approval with ancillary variance relief and conditional use approval subject to a number of conditions.

State Approval

The application for the Honorable Plant can now be forwarded to the state Cannabis Commission for consideration of its recommendation and approval for one cannabis retail business in the borough. The next meeting of that Commission is March 9, however, it is not known what applications will be considered at that time.

  Sea Grass

A second resolution on the agenda, for consideration of Sea Grass for a similar cannabis retail business, could not be completed due to time constraints and will be conducted at the March 9 meeting of the Land Use Board without the necessity for a second formal notice of the action.

 The Honorable Plant

Before granting approval to the Honorable Plant Plan application, the board heard and saw extensive testimony and displays and included in the resolution that all agreements and specifications must be carried out in the detail in which they were presented at the meeting.

  The Property

The property, which is in the Central Business District and the Redevelopment area,  contains 18,000 square feet and is on the street level floor of a two-story building which also has two residential apartments on the second floor in the mixed-use building which are expected to remain..

The property has dual frontage along the main street, Bay Avenue, a county road, and South Second St.

 The Variances

The variances requested include a minimum side yard setback of five feet where 0.46 feet currently exists,  relief from a maximum of lot coverage at 80 percent to permit 90 percent. Currently, the coverage is 86.1 percent.

In presenting the application for the applicant, Red Bank attorney Edward J. McKenna, Jr., noted the applicant has complied with all conditional use requirements.

The applicant’s engineer, Andrew Stockton, P.E. also testified during the hearing, and noted the adjacent parking lot is in need of repair and will be resurfaced by the applicant to provide for 29 parking spaces, including two which would be ADA compliant. Currently, no more than 14 parking spaces are required for the site and the applicant would be providing at least one (1) EV charging parking space. The Board Engineer indicated there would also be at least one EV charger but did not indicate whether the borough engineer’s recommendation for two would be followed. There would also be a bike rack and a green island.

Consumption of cannabis would not be allowed either inside or outside the building on the property, and the building is not located within 1,000 feet of a school. The applicant made no mention of location within 500 feet of a public park.  (See related story on school discussion and a public park.)

With the board engineer assenting, Stockton indicated the  applicant meets all the requirements for utilities, parking,  and other regulations including fencing plans, and  access for emergency vehicles.

The Architect

Architect Catherine Franco, AIA, for the applicant explained the interior of the first floor would be gutted, customers would enter to a waiting area with 15 seats and she is proposing a 25 person capacity showroom. The rear of the first floor would include a manager’s office, security room, receiving and loading area, and employee breakroom.  Another  two ADA compliant bathrooms would also be located within the building.    Franco said they would have a full security system, including cameras, monitors, and alarms.

The Owner

Stavola testified before the board that her credentials include numerous awards, operation of 65 dispensaries in 12 states, including 18 cultivation and manufacturing facilities. Keeping it a family owned operation, she said the Bay Avenue facility would be operated by her and her daughter, permission she said which was also given by Middletown, where she lives for operating a retail facility there.

The Store

The store would be operated from 10am to 7pm Monday through Saturday and noon to 5pm on Sunday. The average length of time a customer would be on site would be fifteen  to twenty minutes,  six to eight  employees would be on site, but would be adjusted as needed.  The waiting area would accommodate overflow within the building rather than outside and should overflow be greater than what the waiting area could accommodate, a security guard would manage the line outside to keep the line around the building and remain on the subject Property.

 The Assurances

Stavola indicated she did not believe, since the products would be  pre-packaged and vacuum sealed, and a HVAC system on the roof would purify the air of any potential unexpected odor, there would be any problems in that area.

The operator listed a series of other assurances about managers, receptionist, deliveries, trash removal  and security, all of which are included in the resolution.

Building owner Michael Salerno spoke on upgrading the building’s exterior

And Stavola’s planner, Andrew Janiw, P.P., AICP, noted a conditionally permitted use includes no consumption of cannabis on premises,  and reiterated there is no school within the near location but did not mention parks.

The applicant’s traffic engineer, John McCormack, PE, PTOE, said studies  show the business would generate approximately 40 customers an hour, in an average flow, as opposed to all at one time. The business would  generate less traffic than the gas station and liquor street across Bay avenue, and the traffic would be similar to what the pizza restaurant had when it was open. He said he relied on NJDOT traffic data from four and five years ago, but did not appear to indicate what time of year that data was collected.

In response to Steve Solop, one of the residents at the meeting, Stavola said there would be no profile of a cannabis retail customer and the board indicated it would be inappropriate to consider a profile, stressing its decision would be based on testimony.

Last week’s Land Use Board meeting reminded me of something when Diane McCoy, a resident speaking during the public portion of the hearing for a Pot business, asked about the meaning of the word School which had been mentioned no fewer than three times during the expert testimony.

Remember back in the late 1990s when President Bill Clinton explained to a Grand Jury investigating the Monica Lewinsky affair “It depends on what the meaning of the word ‘is’ is. If the—if he—if ‘is’ means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement. “

No problem for the Highlands Land Use Board, they resolved any definitions easily and quickly enough after some discussion.

Problem

But they never addressed the word: Park.

That could prove to be a bigger problem with the approval of the variance requests for a Pot retail store.

At the meeting last week  the Honorable Plant testified its wish to open at 123 Bay Avenue property adjacent to the former St. Andrew’s Episcopal Church, now New Life Christian Church.

1,000 Feet

One of the experts noted in his testimony the proposed retail business is not located within 1,000 feet of a school. One questions whether attending church services isn’t a learning experience on its own. But aside from that, Sunday School classes and sessions before regular church services have been taught at New Life. Covid restrictions switched those classes to virtual, but they are still  a part of the church program.

All agreed conditions to permit a Pot retailer include it cannot be within 1,000 feet of a school. The expert pointed out the term “school” was not defined in the Ordinance. But he added that the ordinance was rooted in the State criminal code N.J.S.A. 2C:35-7 (Distribution on or within 1,000 feet of a school property). He further stated that N.J.S.A. 2C:35-7 defined “school” as “any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board.” The expert continued that the criminal statute mimicked the Federal statute. He stated that the Redevelopment Plan also made a distinction between “school” and uses that may use the word “school”, such as a dance school which were not schools.

He concluded that the Redevelopment Plan intended the term “school” to be defined similarly to the criminal code and not a colloquial meaning of “school.”

So it was settled at that point until Ms. McCoy asked if Catholic schools were considered “schools” under the definition of the criminal statute because they were run by the Catholic Diocese, not a board of education.

    Resolution

The adopted resolution says though neither the conditional use ordinance nor the Borough Code define “school”, this  board defines the term in this context as an institution for the teaching of children and would certainly include both public and private Schools.

Still,  the Board found  that the instruction provided at the nearby church falls outside the scope of the term regardless. The board made it clear this distinction “ should not diminish the value of such instruction, but it is not contemplated within the term as used in this Ordinance.”

And so the issue was settled.

Park

However, not addressed was the location, approximately 500 feet of the proposed cannabis facility, a beautiful pocket park , Cornwall Square, on the corner of Cornwall St.

This is a park lovingly created by and cared for by the Highlands Garden Club. There are a few benches there, some attractive signs promoting local business, paved walkways, and pots and gardens being prepared for spring plantings and more beauty.

And the borough has an ordinance which was not addressed at the meeting.

That is the Drug-Free School Zone and a Drug-Free Public Zone Map. It was paid for and  created  April 27, 1998, by Schoor DePalma, the municipal engineer at the time. That map shows the Cornwall Square Park and identifies it clearly as such.

Can the Council amend the code and eliminate Drug-free Public Zone? Most assuredly. Will they? One does not know.

But in the meantime, the Land Use Board took unanimous action opening a door for a cannabis retail license in violation of what certainly appears to be the borough’s definition of a Park located  within 500 feet of the planned location of a cannabis facility.