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Opinion: Don't Let NIMBY Derail NJ's Medical Marijuana Law

Not in my backyard is inherently opposed to what makes citizens out of individuals

R. William Potter wrote the following opinion piece for NJSpotlight.com. Potter is a partner in Potter & Dickson, a Princeton-based law firm. His views are his own and not necessarily those of the firm or of any client.

Question: What does a little-noted 30-year-old state Supreme Court case dealing with public access to beachfront have to do with whether New Jersey's medical marijuana program -- hailed as the nation's strictest -- ever gets off the ground?

Answer: Maybe everything.

In 1981, in a case called Lusardi v. Curtis Point, the Court held that municipal zoning codes have a duty to promote "statewide policies" in their regulation of land use. In so holding, the justices struck down a Brick Township law banning "recreational uses" of certain oceanfront property.

The ordinance was an obvious effort to reserve valuable property for upscale residential development and thus to thwart the state's "public trust doctrine," which upholds the right of public access to New Jersey's beaches.

In effect, Lusardi established a lasting legal principle, one repeated in many cases since: NIMBY, from "not in my backyard."

NIMBY is inherently suspect as contrary to what makes us all New Jerseyans and not simply residents of 565 separate local governments, where each town or hamlet is free to go its own way, thumbing its collective nose at the greater public good.

Yet NIMBY was on full display recently in semirural Upper Freehold Township. On December 2, elected officials of this largely farming community voted to block the state's first -- and so far, only -- application for approval to grow marijuana destined for medical use in state-licensed dispensaries.

Unless the township reconsiders its hasty rejection or a court acts to overturn the NIMBY ordinance, other townships may quickly follow suit, enacting their own versions of Upper Freehold's law.

On the face of it, Upper Freehold's ordinance could not be simpler, but many a "facially neutral" law has an underlying NIMBY purpose.

"Ordinance 248-11" says the Township "hereby prohibits ... any actions ... which require any decision of the Township which is in violation of federal law."

What's wrong with that? Only that it's a disguised form of "local veto" of state law. It's a direct challenge to New Jersey's system for licensing a very few sites for growing marijuana that can be sold only in a few dispensaries to those deemed sufficiently in need of marijuana's medical benefits -- such as restoring appetite to AIDS patients, or easing the pain of cancer, or slowing the spread of sight-robbing glaucoma.

This local law has only one real purpose: To stop the nonprofit Breakwater Alternative Treatment Center from growing marijuana anyplace within this sprawling township -- even if Breakwater complies with New Jersey's strictest-in-the nation licensing procedures, because marijuana remains classified at the federal level as an illegal drug.

So why not go elsewhere? Let Breakwater decamp to another township where many farmers are eager to sell or lease? Two reasons, as a principal of Breakwater points out.

First, Upper Freehold has "several ideal sites" for cultivating a limited number of marijuana plants. The leading candidate is "several hundred acres," and only "five or six" acres near the center (far from public view) are needed for the heavily screened greenhouses. 

Second, and this is where the Lusardi case comes into focus: if Upper Freehold can get away with its creative brand of NIMBY, then every other locale may erect similar barriers. "Already Howell and Plumstead Townships are considering the same ordinance," the Breakwater executive told me.

And without in-state cultivation, there will be no marijuana for the five state-licensed dispensaries called for in the Compassionate Use Medical Marijuana Act, signed into law by former Governor Corzine at the end of his term, making New Jersey the sixteenth state to approve of medical marijuana.

And without medical marijuana, thousands of Garden Staters suffering from Lou Gehrig's disease, multiple sclerosis, terminal cancer, muscular dystrophy, epilepsy, and so on will forgo its oft-cited medical benefits.

Or they will be relegated to buying from criminal elements.

But why should Upper Freehold officials risk federal prosecution for aiding and abetting criminal conduct? Good question, and there's a good answer: The feds won't touch them. In October 2009, the U.S. Department of Justice issued guidance to federal crime fighters nationwide. The DOJ memo tells U.S. Attorneys that they should not "focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with state laws providing for the medical use of marijuana."

To clarify the federal role further, the DOJ memo identifies where the feds should focus: "unlawful use of firearms; violence; sales to minors; marketing activities inconsistent with state law; possession of other controlled substances; or ties to organized crime."

In short, Upper Freehold officials have little, if anything, to fear from federal authorities by complying with state medical marijuana law and allowing Breakwater's application to proceed to approval.

Which brings us back to the Lusardi case and what it says about NIMBY, clothed in the guise of obedience to the rule of law but purposely frustrating it instead.

Read more on NJSpotlight.com.

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