Motion for Consolidation in Mcr 54 Rt 440 Lot 6 Llc Vs The City Of Bayonne| Trellis.Law

On November 07, 2022 a Motion,Ex Parte was filed involving a dispute between Mcr 54 Rt 440 Lot 6Llc, The L Group, Llc, and The City Council Ofthe Cityo, The City Of Bayonne, for Actions In Lieu Of Prerogative Writs in the District Court of Hudson County.

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Matthew P. Posada, Esq. (#068522013)
Joshua J. Koodray, Esq. (#242662017)
SILLS CUMMIS & GROSS P.C.
One Riverfront Plaza
Newark, New Jersey 07102
Telephone: 973.643.5548
Facsimile: 973.643.6500
MPosada@sillscummis.com
JKoodray@sillscummis.com
Attorneys for Plaintiffs, MCR 54 RT 440 LOT 6 LLC
and The L Group, LLC

MCR 54 RT 440 LOT 6 LLC; and SUPERIOR COURT OF NEW JERSEY
THE L GROUP, LLC, HUDSON COUNTY: LAW DIVISION

Plaintiffs, Docket No.: HUD-L-3711-22

v. CIVIL ACTION

THE CITY OF BAYONNE; and PROPOSED ORDER TO
CITY COUNCIL OF THE CITY OF CONSOLIDATE
BAYONNE,

Defendants.

SUPERIOR COURT OF NEW JERSEY
THE L GROUP, LLC, HUDSON COUNTY: LAW DIVISION

Plaintiff, Docket No.: HUD-L-4064-22

THE CITY OF BAYONNE ZONING
BOARD OF ADJUSTMENT,

Defendant.

THIS MATTER, having been opened to the Court by the law firm of Sills Cummis &

Gross, P.C. (Matthew P. Posada, Esq. and Joshua J. Koodray, Esq. appearing), attorneys for

Plaintiffs, MCR 54 RT 440 Lot 6 LLC and The L Group, LLC (“Plaintiffs”), as motion to

consolidate; and the law firm of Inglesino, Webster, Wyciskala & Talyor, LLC (Alyssa E. Spector,

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Esq.) appearing on behalf of Defendants, the City of Bayonne and the City Council of the City of

Bayonne (“Defendants”); and the Court having considered the written submissions and the

arguments of counsel, if any; and for good cause shown,

IT IS on this ________ day of August, 2023

ORDERED that Plaintiffs’ Motion to Consolidate Docket No. HUD-L-3711-22 and HUD-

L04064-22 is granted; and it is further

ORDERED that pursuant to the Rules of Court, these matters shall be consolidated under

Docket No. HUD-L-3711-22; and it is further

ORDERED that a copy of this Order shall be deemed served upon all Parties via eCourts

electronic filing.

___________________________
Hon. Christine M. Vanek, J.S.C.

The Parties hereby consent to the form and entry of the above Order to Consolidate.

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MCR 54 RT 440 LOT 6 LLC; and SUPERIOR COURT OF NEW JERSEY
THE L GROUP, LLC, HUDSON COUNTY: LAW DIVISION

Plaintiffs, Docket No.: HUD-L-3711-22

v. CIVIL ACTION

THE CITY OF BAYONNE; and CERTIFICATION OF SERVICE
CITY COUNCIL OF THE CITY OF
BAYONNE,

Defendants.

SUPERIOR COURT OF NEW JERSEY
THE L GROUP, LLC, HUDSON COUNTY: LAW DIVISION

Plaintiff, Docket No.: HUD-L-4064-22

THE CITY OF BAYONNE ZONING
BOARD OF ADJUSTMENT,

Defendant.

JOSHUA J. KOODRAY, ESQ., of full age, hereby certify to the following:

1. I am an attorney at law in the State of New Jersey and an Associate of the law firm

of Sills Cummis & Gross P.C. This office represents Plaintiffs, MCR 54 RT 440 Lot 6 LLC

(“MCR”) and The L Group, LLC (“L Group”) in the above-referenced matters. I am over 18 ears

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of age, and I have no connection with any party to this proceeding.

2. I certified that on August 4, 2023, I served the following documents on behalf of

MCR and L Group:

a. Notice of Motion to Consolidate (Filed on Short Notice with Permission of the
Court);

b. Certification of Joshua J. Koodray, Esq. in Support of Plaintiffs’ Motion to
Consolidate, with Exhibits A through B; and

c. Proposed Form of Order to Consolidate.

Via Email upon the following:

Alyssa E. Spector, Esq.
Inglesino Taylor
600 Parsippany Road, Suite 204
Parsippany, New Jersey 07054
ASpector@itfirm.law
Attorneys for Defendants, The City of Bayonne,
City Council of the City of Bayonne,
and the City of Bayonne Zoning Board of Adjustment

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing

statements made by me are willfully false, I am subject to punishment.

SILLS CUMMIS & GROSS P.C.
Attorneys for Plaintiffs, MCR 54 RT 440 LOT 6 LLC
and The L Group, LLC

By: /s/ Joshua J. Koodray
Dated: August 4, 2023 Joshua J. Koodray, Esq.

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MCR 54 RT 440 LOT 6 LLC; and SUPERIOR COURT OF NEW JERSEY
THE L GROUP, LLC, HUDSON COUNTY: LAW DIVISION

Plaintiffs, Docket No.: HUD-L-3711-22

v. CIVIL ACTION

THE CITY OF BAYONNE; and CERTIFICATION OF
CITY COUNCIL OF THE CITY OF JOSHUA J. KOODRAY, ESQ.
BAYONNE, IN SUPPORT OF PLAINTIFFS’
MOTION TO CONSOLIDATE
Defendants.

SUPERIOR COURT OF NEW JERSEY
THE L GROUP, LLC, HUDSON COUNTY: LAW DIVISION

Plaintiff, Docket No.: HUD-L-4064-22

THE CITY OF BAYONNE ZONING
BOARD OF ADJUSTMENT,

Defendant.

I, JOSHUA J. KOODRAY, ESQ., of full age, hereby certify to the following:

1. I am an attorney at law in the State of New Jersey and an associate with the law

firm of Sills Cummis & Gross P.C. This office represents Plaintiffs, MCR 54 RT 440 Lot 6 LLC

(“MCR”) and The L Group, LLC (“L Group”) (hereinafter, collectively referred to as “Plaintiffs”)

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in connection with HUD-L-3711-22 and HUD-L-4064-22. As such, I am fully familiar with the

statements set forth herein.

2. On November 7, 2022, Plaintiffs filed an Action in Lieu of Prerogative Writs and

Complaint seeking Declaratory Judgement and other relief (Trans ID: LCV20223888097) to

invalidate Ordinance No. 22-31 and Ordinance No. 22-32, which were adopted by the City of

Bayonne (“City”) and the City Council of the City of Bayonne (“City Council”) on September 21,

2022 (the “Cannabis Ordinance Challenge”). A true and accurate copy of the complaint filed in

the Cannabis Ordinance Challenge is attached hereto as Exhibit A.

3. MCR is the owner of real property located at East 23rd Street and identified as

Block 452.02, Lot 6 (formerly known as Lots 6, 7, 8, 9, and 11) on the Official Tax Map of the

City of Bayonne (the “IMTT Tanks Site”).

4. The IMTT Tanks Site is comprised of nearly seven acres and is currently improved

with three above-ground bulk liquid storage tanks, most recently utilized by International-Matex

Tank Terminals (IMTT).

5. L Group is the contract purchaser of real property located at New Hook Road &

East 22nd Street and identified as Block 452.02, Lot 5.01 on the Official Tax Map of the City of

Bayonne (the “Clayton Blocks Site”).

6. The Clayton Blocks Site is comprised of more than seven acres and was previously

owned and utilized by Clayton Block, a manufacturer and distributor of concrete blocks,

landscaping pavers, and other masonry products.

7. L Group intends to develop the Property as one cohesive development.

8. According to the City’s Zoning Map, prepared by CME Associates and dated

September 2020, the Property is located wholly within the City’s H-C (Highway

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Commercial/Selected Light Industrial) Zone District (the “H-C Zone”).

9. The Clayton Blocks Site is also in the “West Rt. 440 Redevelopment Area (the

“Redevelopment Area”) and is governed by the “Scattered Site Redevelopment Project: Phase II

Site 14: Rt. 440 West Redevelopment Plan” (the “Redevelopment Plan”).

10. On March 17, 2021, the City adopted Ordinance No. 21-131 (the “City’s Cannabis

Ordinance”) which, amongst other things, expressly amended the Revised General Ordinances of

the City of Bayonne, Chapter 33 Planning and Development Regulations and Chapter 35, Zoning

Regulations (the “Zoning Code”) to permit and/or prohibit cannabis establishments in certain zone

districts.

11. In relevant part, the City’s Cannabis Ordinance amended the Zoning Code to add

“Cannabis suppliers or cannabis retailers licensed by the State of New Jersey and the City of

Bayonne” as principally permitted uses in the H-C Zone. As a result, cannabis establishments were

permitted on the IMTT Tanks Site and the Clayton Blocks Site.

12. However, after Ordinance No. 22-31 and Ordinance No. 22-32 were adopted,

cannabis related uses were prohibited on the IMTT Tanks Site and the Clayton Blocks Site.

13. Therefore, Plaintiffs are currently precluded from marketing, developing, utilizing,

leasing and/or conveying the Property for cannabis related uses without obtaining a d(1) use

variance from the City of Bayonne Zoning Board of Adjustment (the “Zoning Board”).

14. On December 9, 2022, L Group filed an Action in Lieu of Prerogative Writs and

1
Ordinance No. 21-13 is officially entitled “An Ordinance of the City of Bayonne, New Jersey Amending and
Supplementing the General Ordinances of the City, Chapter 33, Planning and Development Regulations, Section 33-
2.2 Definitions; Chapter 35, Zoning Regulations, Section 35-4.22 Reserved, Section 35-5.8 C-1 Neighborhood
Commercial District, Section 35-5.10 CBD Central Business District (Broadway Corridor), Section 35-5.12 ORS
Office/Retail Service District (Broadway Corridor), Section 35-5.13 H-C Highway Commercial/Selected Light
Industrial District, Section 35-5.16 IL-A and IL-B Light Industrial Districts; and Chapter 4, Licensing, Registration
and Business Regulations, Section 4-30 Reserved; Establishing Zoning and Licensing Requirements for Regulated
Cannabis Establishments”

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Complaint seeking Declaratory Judgement and other relief (Trans ID: LCV20224179281) to

overturn the Zoning Board’s decision to uphold City Zoning Officer Tuohy’s (the “Zoning

Officer”) erroneous determination that commercial parking facilities, which are conditionally

permitted in the Redevelopment Area, only allows for the parking of automobiles, not

“commercial” vehicles (the “Zoning Determination Appeal”). A true and accurate copy of the

complaint filed in the Zoning Determination Appeal is attached hereto as Exhibit B.

15. The Zoning Officer denied L Group’s Zoning Verification Request because, in her

opinion, the Zoning Code “implied” that the use of a commercial parking facility is limited to

“automobile parking” and not for the “parking of commercial vehicles.”

16. However, in reaching that determination, the Zoning Officer ignored, amongst

other things, that the term “commercial parking facilities” is not defined in the Zoning Code and

that other provisions in the municipal code, unlike the Zoning Code, distinguish between

“passenger” and “commercial” vehicles.

17. The Zoning Board improperly upheld the Zoning Officer’s determination over the

unrefuted testimony of L Group’s professional planner that its intended use of the Property is

wholly consistent with the statutory intent and is permitted on the Property.

18. “The entire controversy doctrine ‘seeks to impel litigants to consolidate their claims

arising from a single controversy whenever possible.’ The doctrine serves ‘to encourage complete

and final dispositions through the avoidance of piecemeal decisions and to promote judicial

efficiency and the reduction of delay.’” Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,

Hyman & Stahl, P.C., 237 N.J. 91, 98 (2019).

19. Authority to consolidate actions is found in Rule 4:38-1, which states that: “When

actions involving a common question of law or fact arising out of the same transaction or series of

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transactions are pending in the Superior Court, the court on a party's or its own motion may order

the actions consolidated.” Rule 4:38-1(a). “A trial court’s decision to grant or deny a party's motion

to consolidate actions is discretionary.” Moraes v. Wesler, 439 N.J. Super. 375, 378 (App. Div.

2015).

20. Courts grant motions to consolidate where issues of liability are straightforward

and will not confuse a jury. Id. at 378−79. Rule 4:38-1(a) should be “construed to secure a just

determination, simplicity in procedure, fairness in administration and the elimination of

unjustifiable expense and delay.” Robert T. Winzinger, Inc. v. Brennan Bros, Inc., 191 N.J. Super.

114, 118 (Law Div. 1983).

21. The Cannabis Ordinance Challenge and the Zoning Determination Appeal involve

the same plaintiffs and real property.

22. The Cannabis Ordinance Challenge and the Zoning Determination Appeal present

common questions of fact and law. Specifically, both matters involve the adoption and/or

interpretation of zoning ordinances that regulate and govern the Property. In filing suit, Plaintiffs

are seeking to vindicate their respective property rights and ensure that the Property can be

developed with the “highest and best” use. The result of these pending actions will determine the

way Plaintiffs will be permitted to develop, utilize, market, and/or lease the Property.

23. Additionally, the Cannabis Ordinance Challenge and the Zoning Determination

Appeal arise out of the same transaction or series of transactions (i.e, Plaintiffs’ attempts to acquire,

develop, market, utilize, and/or lease the Property). Defendants’ wrongful actions and erroneous

determinations, if upheld, will limit the development potential of the Property and interfere with

Plaintiffs’ acquisition, use, and/or enjoyment of the Property.

24. Consolidation of these matters will promote judicial economy as substantial

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relevant facts will not have to be repeated. Consolidation will also prevent an incomplete or

piecemeal determination as to what uses are permitted on the Property.

25. There is no risk of prejudice to any parties granting consolidation. Defendants are

represented by the Inglesino Taylor law firm in the Cannabis Ordinance Challenge and the Zoning

Determination Appeal. In fact, Defense Counsel has consented to the filing of the instant motion.

26. Judicial economy and the public policy of ensuring completeness and consistency

favor consolidation. Moreover, consolidation is consistent with the goals and requirements of the

Entire Controversy Doctrine.

27. For the reasons set forth herein and based on the above-cited authorities, it is

respectfully submitted that this Court should consolidate Docket No. HUD-L-3711-22 with Docket

No. HUD-L-4064-22. Pursuant to the Rule of Court, this matter, under Docket No. HUD-L-3711-

22, should be designated as the lead case.

28. This Motion to Consolidate is made with the consent of Defendants, The City of

Bayonne, the City Council of the City of Bayonne, and the City of Bayonne Zoning Board of

Adjustment (hereinafter, collectively referred to as “Defendants”).

29. I certify that the foregoing statements made by me are true. I am aware that if any

of the foregoing statements made by me are willfully false, I am subject to punishment.

SILLS CUMMIS & GROSS P.C.
Attorneys for Plaintiffs, MCR 54 RT 440 LOT 6 LLC
and The L Group, LLC

By: /s/ Joshua J. Koodray
Dated: August 4, 2023 Joshua J. Koodray, Esq.

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EXHIBIT A
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MCR 54 RT 440 LOT 6 LLC; and SUPERIOR COURT OF NEW JERSEY
THE L GROUP, LLC, HUDSON COUNTY: LAW DIVISION

Plaintiffs, Docket No.: HUD-L-

v. CIVIL ACTION

THE CITY OF BAYONNE; and ACTION IN LIEU OF PREROGATIVE
CITY COUNCIL OF THE CITY OF WRITS & COMPLAINT SEEKING
BAYONNE, DECLARATORY JUDGEMENT AND
OTHER RELIEF
Defendants.

Plaintiffs, MCR 54 RT 440 LOT 6 LLC (“MCR”) and The L Group, LLC (“L Group”)

(referred to herein, collectively, as “Plaintiffs”), by their attorneys, Sills Cummis & Gross P.C.,

and for their Complaint in Lieu of Prerogative Writs against defendants the City of Bayonne

(“City”) and the City Council of the City of Bayonne (“City Council”) (referred to herein,

collectively, as “Defendants”) alleges as follows:

INTRODUCTION

1. This is an Action in Lieu of Prerogative Writs, together with other claims as stated,

seeking an Order of the Court rescinding and declaring void certain improper and ultra vires

actions taken by Defendants to prohibit cannabis uses on Plaintiffs’ respective properties.

Although Defendants are permitted certain rights to zone and regulate City properties, those

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powers are circumscribed by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”),

which encourages a comprehensive and measured approach to adopting zoning regulations. The

MLUL requires municipalities to strictly adhere to certain noticing provisions. The MLUL also

requires zoning regulations to be carefully drawn and thoughtfully considered. Defendants failed

to adhere to the MLUL’s technical, procedural, or substantive requirements in adopting the subject

ordinances. Defendants’ failures have injured Plaintiffs by depriving them from marketing, selling,

and/or developing their respective properties with cannabis uses. We respectfully request that this

Court reverse and vacate Defendants’ ad hoc cannabis prohibitions.

THE PARTIES

2. Plaintiff MCR 54 RT 440 LOT 6 LLC is a Delaware Limited Liability Company

with a business address of 534 Broadway, Bayonne, New Jersey 07002 is the owner of real

property located at East 23rd Street and identified as Block 452.02, Lot 6 (formerly Lots 6, 7, 8, 9

and 11) on the Official Tax Map of the City of Bayonne.

3. Plaintiff The L Group, LLC is a New Jersey Limited Liability Company with a

business address of 534 Broadway, Bayonne, New Jersey 07002, and is the contract purchaser of

real property located at New Hook Road & East 22nd Street and identified as Block 452.02, Lot

5.01 on the Tax Map of the City of Bayonne.

4. Defendant the City of Bayonne is a body corporate, body politic, and local

government located at 630 Avenue C, Bayonne, New Jersey 07002, established pursuant to Title

40 - Municipalities and Counties, N.J.S.A. 40A:61-1, et seq., and authorized to, amongst other

things, govern the residents and real property of the City of Bayonne (the “City”) and enact

municipal ordinances.

5. Defendant the City Council of the City of Bayonne are the legislative officials of

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the City, serve as the City’s “Governing Body” pursuant to and by operation of law, and are

authorized to carry out the City’s various governmental, executive, and administrative functions.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this matter because: all parties are located in the

State of New Jersey, the real properties from which the subject dispute arise are located in Hudson

County, New Jersey, the matters in dispute arise under New Jersey law, and all of the materials

facts alleged herein occurred in Hudson County, New Jersey.

7. Venue is proper before the Superior Court of New Jersey, Hudson Vicinage

pursuant to Rule 4:3-2(a) and (c), respectively, because Hudson County is the county in which the

affected real property from which this lawsuit arises is situated and because Hudson County is the

county in which the cause of action arose.

FACTS COMMON TO ALL COUNTS

A. The Properties

8. The property located at East 23rd Street and identified as Block 452.02, Lot 6

(formerly Lots 6, 7, 8, 9 and 11) on the Official Tax Map of the City of Bayonne is improved with

three (3) above-ground bulk liquid storage tanks, most recently utilized by International-Matex

Tank Terminals (the “IMTT Tanks Site”).

9. According to the City’s Zoning Map, prepared by CME Associates and dated

September 2020 (the “Zoning Map”), the IMTT Tanks Site is located wholly within the City’s H-

C (Highway Commercial/Selected Light Industrial) Zone District (the “H-C Zone”).

10. The IMTT Tanks Site is comprised of nearly seven (7) acres and is surrounded by

a variety of industrial land uses.

11. The IMTT Tanks Site is bound by City owned land (i.e., Block 452.02, Lot 11) and

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parcels previously designated by the City as an area in need of redevelopment pursuant to the Local

Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq.

12. MCR purchased the IMTT Tanks Site from Bayonne Industries Inc. on or about

September 21, 2022.

13. The property located at New Hook Road & East 22nd Street and identified as Block

452.02, Lot 5.01 on the Tax Map of the City of Bayonne was previously owned and utilized by

Clayton Block, which manufactured and distributed concrete blocks, landscaping pavers, and other

masonry products (the “Clayton Blocks Site”).

14. According to the Zoning Map, the Clayton Blocks Site, which is comprised of

approximately 7.38 acres, is located in the H-C Zone.

15. The Clayton Blocks Site is also in the “West Rt. 440 Redevelopment Area” (the

“Redevelopment Area”) and is governed by the “Scattered Site Redevelopment Project: Phase II

Site 14: Rt. 440 West Redevelopment Plan” (the “Redevelopment Plan”).

16. For ease of reference an excerpt of the Zoning Map1 depicting the IMTT Tanks Site

and the Clayton Blocks Site is inserted below:

B. The City’s Cannabis Ordinance & Regulatory Scheme

1
An electronic (PDF) copy of the Zoning Map can be viewed and/or downloaded here:
https://www.bayonnenj.org/_Content/pdf/forms/tax/2020-Zoning-Map-Updated-September-2020.pdf.

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17. On November 3, 2020, the citizens of New Jersey voted to approve Public Question

No. 1, amending and supplementing Section VII of Article IV of the New Jersey Constitution to

authorize the growth, cultivation, processing, manufacturing, preparing, packaging, transferring

and retail purchasing and consumption of cannabis, or products created from or which include

cannabis for recreational purposes for persons twenty-one (21) years or older in New Jersey, and

further authorized municipalities to enact a local tax each sale on cannabis products.

18. On February 22, 2021, Governor Murphy signed the “New Jersey Cannabis

Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (the “Act”) into law,

legalizing and regulating cannabis use and possession for adults twenty-one (21) years and older

and decriminalizing marijuana and hashish possession, A-1897 (P.L. 2021, c.19).

19. The Act required municipalities to act to either prohibit or limit the number of

cannabis establishments, distributors, or delivery services, the location, manner, and times of

operation, and establish civil penalties for violation of any related ordinance within one hundred

eighty (180) days of the Act’s effective day, or August 21, 2021.

20. Upon the adoption of the Act, any existing municipal ordinances regulating or

prohibiting cannabis were declared null and void and must be readopted to be effective.

21. A municipality’s failure to act within the “opt-in, opt-out” period would result in

any class of cannabis establishment or distributor being permitted to operate in the municipality,

and depending on the type of establishment, be considered a permitted use in certain zones.

22. Additionally, a municipality that failed to enact an ordinance prohibiting the

operation of one or more classes of cannabis establishments, before August 21, 2021, is precluded

from passing an ordinance banning the operation for a period of five (5) years.

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23. On March 17, 2021, the City of Bayonne chose to adopt, as opposed to being

automatically subject to the Act’s provisions, Ordinance No. 21-13, entitled “An Ordinance of the

City of Bayonne, New Jersey Amending and Supplementing the General Ordinances of the City,

Chapter 33, Planning and Development Regulations, Section 33-2.2 Definitions; Chapter 35,

Zoning Regulations, Section 35-4.22 Reserved, Section 35-5.8 C-1 Neighborhood Commercial

District, Section 35-5.10 CBD Central Business District (Broadway Corridor), Section 35-5.12

ORS Office/Retail Service District (Broadway Corridor), Section 35-5.13 H-C Highway

Commercial/Selected Light Industrial District, Section 35-5.16 IL-A and IL-B Light Industrial

Districts; and Chapter 4, Licensing, Registration and Business Regulations, Section 4-30

Reserved; Establishing Zoning and Licensing Requirements for Regulated Cannabis

Establishments.” Annexed hereto as Exhibit A is a true and accurate copy of Ordinance No. 21-

13 (the “City’s Cannabis Ordinance”) (emphasis added).

24. The City’s Cannabis Ordinance established the licensing requirements for regulated

cannabis establishments in the City and imposed a municipal tax on the sale of cannabis products.

25. The City’s Cannabis Ordinance also expressly amended the Revised General

Ordinances of the City of Bayonne, Chapter 33 Planning and Development Regulations and

Chapter 35, Zoning Regulations (the “Zoning Code”) to permit and/or prohibit cannabis

establishments in certain zone districts.

26. In relevant part, the City’s Cannabis Ordinance amended the Zoning Code to add

“Cannabis suppliers or cannabis retailers licensed by the State of New Jersey and the City of

Bayonne” as principally permitted uses in the H-C Zone.

27. As a result, cannabis establishments were permitted on the IMTT Tanks Site and

the Clayton Blocks Site.

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C. The City’s Subsequent Cannabis Related Zoning Ordinance
Amendments

28. On April 20, 2022, the City amended the City’s Cannabis Ordinance by adopting

two separate ordinances: Ordinance No. 22-15 and Ordinance No. 22-16.

29. Ordinance No. 22-15, “An Ordinance Amending and Supplementing the Revised

General Ordinances of the City of Bayonne, Chapter 33, Planning and Development Regulations

and Chapter 35, Zoning Regulations and Chapter 4 Licensing, Registration an[d] Business

Regulations,” amended the Zoning Code and the types of cannabis facilities permitted and/or

prohibited in the City’s zone districts (emphasis added). Annexed hereto as Exhibit B is a true and

accurate copy of Ordinance No. 22-15.

30. In relevant part, Ordinance No. 22-15 amended the Zoning Code to include

“Cannabis cultivator, cannabis manufacturer, cannabis retailers and/or cannabis deliverer licensed

by the State of New Jersey and the City of Bayonne” as principally permitted uses in the H-C

Zone.

31. Ordinance No. 22-16, “An Ordinance Amending and Supplementing the Revised

General Ordinances of the City of Bayonne, New Jersey Establishing Chapter 39, Recreational

Cannabis,” adopted Chapter 39 (Recreational Cannabis), established various cannabis application

review procedures, created the City of Bayonne Cannabis Preliminary Review Board, and

modified / expanded the definitions of permitted cannabis facilities. Annexed hereto as Exhibit C

is a true and accurate copy of Ordinance No. 22-16.

32. After the adoption of Ordinance No. 22-15 and Ordinance No. 22-16 cannabis uses

continued to be permitted on the IMTT Tanks Site and the Clayton Blocks Site.

33. At the City of Bayonne City Council Regular Meeting of August 17, 2022,

Ordinance(s) No. 22-31 (identified as “O-11” on the Meeting Agenda) and No. 22-32 (identified

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as “O-13” on the Meeting Agenda) were introduced for first reading. Annexed hereto as Exhibit

D is a true and accurate copy of the August 17, 2022 Meeting Agenda.

34. Ordinance No. 22-31, “An Ordinance Amending and Supplementing the Review

General Ordinance of the City of Bayonne, Chapter 35, Zoning Regulations,” proposed to

eliminate cannabis uses on lots within the H-C Zone, except for properties “located East of the

Route 440 Corridor” (emphasis added). Annexed hereto as Exhibit E is a true and accurate copy

of Ordinance No. 22-31.

35. Specifically, Ordinance No. 22-31 proposed to modify “Section 35-5 District

Regulations, Subsection 5.13” of the H-C Zone’s “Permitted uses” as follows:

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36. The language of Ordinance No. 22-31 is vague in that it does not identify specific

parcels on which cannabis uses would be permitted.

37. However, despite the zoning amendment’s imprecise construction, it appears that

cannabis uses would be prohibited from the IMTT Tanks Site, the Clayton Blocks Site, and most

of the parcels in the H-C Zone, because they are adjacent to and/or west of the “Route 440

Corridor.”

38. Ordinance No. 22-32, “An Ordinance Amending and Supplementing the Revised

General Ordinances of the City of Bayonne, New Jersey, Chapter 39, Recreational Cannabis,”

proposed modifications to the cannabis facility application process. Annexed hereto as Exhibit F

is a true and accurate copy of Ordinance No. 22-32.

39. Ordinance No 22-32 also confirmed that cannabis uses would only be permitted in

the H-C Zone on properties “East of the Route 440 Corridor.”

40. In doing so, Ordinance No. 22-32 cross-referenced “Chapter 35 of the Revised

General Ordinances, Zoning Regulations, Section 5 District Regulations, Subsection[] 5.13,”

which regulates the H-C Zone.

41. On September 21, 2022, the City of Bayonne adopted Ordinance No. 22-31 and

Ordinance No. 22-32 on second reading.

42. Upon information and believe, Ordinance No. 22-31 and Ordinance No. 22-32 we

adopted without any input from the City of Bayonne Planning Board (the “Planning Board”).

D. The IMTT Tanks Site and the Clayton Blocks Site After the Adoption
of Ordinance No. 22-31 and Ordinance No. 22-32

43. Ordinance No. 22-31 and Ordinance No. 22-32 expressly modified the Zoning

Code and eliminated uses previously permitted in the H-C Zone.

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44. Once Ordinance No. 22-31 and Ordinance No. 22-32 were adopted, cannabis

related uses were prohibited on the IMTT Tanks Site and the Clayton Blocks Site.

45. As a result of Defendants’ efforts to adopt Ordinance No. 22-31 and Ordinance No.

22-32, Plaintiffs are precluded from marketing, developing, utilizing, leasing and/or conveying

their respective properties for cannabis related uses without obtaining a d(1) use variance from the

City of Bayonne Zoning Board of Adjustment.

46. Ordinance No. 22-31 and Ordinance No. 22-32 directly relate to the nature and

extent of the uses of land and of buildings and structures thereon.

47. Therefore, Ordinance No. 22-31 and Ordinance No. 22-32 are “zoning” ordinances,

subject to the requirements set forth in the MLUL.

48. As such, the Defendants were required to refer Ordinance No. 22-31 and Ordinance

No. 22-32 to the Planning Board before adopting these zoning ordinances.

49. Upon information and belief, Ordinance No. 22-31 and Ordinance No. 22-32 were

adopted and codified without being referred to and/or reviewed by the Planning Board as required

by N.J.S.A. 40:55D-64.

50. Upon information and belief, Ordinance No. 22-31 and Ordinance No. 22-32 were

adopted and codified without being considered for consistency with the City of Bayonne Master

Plan (the “Master Plan”) as required by N.J.S.A. 40:55D-62a.

51. Defendants’ failures to refer Ordinance No. 22-31 and Ordinance No. 22-32 prior

to adopting these zoning ordinances violates the MLUL and renders them null and void.

52. Ordinance No. 22-31 and Ordinance No. 22-32 prohibit cannabis related uses in the

H-C Zone except for properties “East of the Route 440 Corridor.”

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53. Neither Ordinance No. 22-1 nor Ordinance No. 22-32 explain why the unidentified

properties “East of the Route 440 Corridor” are more suitable for cannabis uses than the IMTT

Tanks Site, the Clayton Block Site, or most of the H-C Zone.

54. This provision is wholly inconsistent with the MLUL and violates the general

principal that all properties in a particular zone must be treated uniformly. See N.J.S.A. 40:55D-

62a.

55. Additionally, this provision is tantamount to impermissible spot zoning as it is

designed and/or operates to relieve the properties “East of the Route 440 Corridor” from the burden

of general regulation that applies to all similarly situated properties.

56. Ordinance No. 22-31’s and Ordinance No. 22-32’s disparate and preferential

treatment of the properties “East of the Route 440 Corridor” render the zoning ordinances null and

void.

57. Furthermore, Ordinance No. 22-31 and Ordinance No. 22-32 dramatically alter the

intensity of uses in the H-C Zone.

58. Ordinance No. 22-31 and Ordinance No. 22-32 change the nature and character of

future of development in the H-C Zone.

59. As such, Ordinance No. 22-31 and Ordinance No. 22-32 constitute a change in

“zone classification” and, thus, required individualized notice to all affected property owners

pursuant to N.J.S.A. 40:55D-62.1.

60. However, upon information and belief, the Defendants did not provide

individualized notice to all affected property owners, including Plaintiffs.

61. Additionally, Ordinance No. 22-31 and Ordinance No. 22-32, which eliminated

cannabis uses in significant portions of the H-C Zone and the Heavy Industrial (I-H) Zone District

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(the “I-H Zone”), upon information and belief, affected properties within two hundred (200) feet

of adjoining municipalities.

62. As such, pursuant to N.J.S.A. 40:55D-15.a. the City was required to notify the

affected adjoining municipalities and the Hudson County Planning Board at least ten (10) days

prior to the date of any such hearing on Ordinance No. 22-31 and/or Ordinance No. 22-32.

63. However, upon information and belief, no such notices were served upon either the

affected adjoining municipalities or the Hudson County Planning Board.

64. Upon information and belief, the Defendants only provided generalized notice of

Ordinance No. 22-31 and/or Ordinance No. 22-32 via publication.

65. Defendants’ collective failures to comply with the MLUL’s procedural and noticing

requirements as they relate to the introduction, passage, and adoption of Ordinance No. 22-31

and/or Ordinance No. 22-32 render the ordinances null and void.

66. Defendants’ efforts to eliminate cannabis uses from the IMTT Tanks Site and the

Clayton Blocks Site have unduly interfered with Plaintiffs’ respective, legitimate investment-

backed expectations.

67. Defendants’ efforts have deprived Plaintiffs of their substantive rights to develop

the IMTT Tanks Site and the Clayton Blocks Site free from illegal and ultra vires development

regulations.

68. Furthermore, Defendants’ efforts to engage in ad hoc zoning has interfered with the

Plaintiffs’ respective contractual rights.

69. Ordinance No. 22-31 and Ordinance No. 22-32 must be stricken down.

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COUNT ONE

(Failure to Comply with Statutory and Municipal Procedural Requirements - Failure to
Refer Ordinance No. 22-31 and Ordinance No. 22-32 to the Planning Board)

70. Plaintiffs repeat and incorporate the allegations in the preceding paragraphs as if

set forth at length herein.

71. Ordinance No. 22-31 and Ordinance No. 22-32 expressly modified the Zoning

Code and eliminated uses previously permitted in the H-C Zone.

72. Ordinance No. 22-31 and Ordinance No. 22-32 directly relate to the nature and

extent of the uses of land and of buildings and structures thereon.

73. Ordinance No. 22-31 and Ordinance No. 22-32 are subject to the procedural

requirements for adoption set forth in the MLUL.

74. Defendants were required to refer to the Planning Board Ordinance No. 22-31 and

Ordinance No. 22-32 before adopting these zoning ordinances.

75. Upon information and belief, Ordinance No. 22-31 and Ordinance No. 22-32 were

adopted and codified without being referred to and/or reviewed by the Planning Board as required

by N.J.S.A. 40:55D-64.

76. Upon information and belief, Ordinance No. 22-31 and Ordinance No. 22-32 were

adopted and codified without the Planning Board considering them for consistency with the Master

Plan as required by N.J.S.A. 40:55D-62a.

77. Upon information and belief, the Planning Board was not consulted in any manner

to consider and/or comment on Ordinance No. 22-31 and Ordinance No. 22-32.

78. Defendants’ failures to refer Ordinance No. 22-31 and Ordinance No. 22-32 prior

to adopting them violates the MLUL and renders them null and void.

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WHEREFORE, Plaintiffs, MCR 54 RT 440 LOT 6 LLC and The L Group, LLC

demands judgement against Defendants, the City of Bayonne and the City Council of the City of

Bayonne as follows:

A. Finding that Defendants failed to comply with the requirements of the MLUL
concerning the adoption o

Case Info

Judge

Christine M Vanek Track Judge’s New Case

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Document Filed Date

August 07, 2023

Case Filing Date

November 07, 2022

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Motion,Ex Parte: Mcr 54 Rt 440 Lot 6 Llc Vs The City Of Bayonne

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