TOWNSHIP OF WASHINGTON, N.J.—A state Superior Court judge has overturned the Planning Board’s 2018 denial of a site plan for a proposed smoke and vape shop at Washington Town Center, giving the board 45 days to grant all necessary approvals.
It is not clear that the applicant, local resident Eddie Marji, still wants to open his Cedar Smoke here. The outlet would be his fifth, after locations in Dobbs Ferry, New York and in Lodi, Belleville, and New Rochelle.
On Oct. 30, state Superior Court Judge Christine Farrington agreed with plaintiff Alexander DiChiara, whose family owns Washington Town Center, that the Planning Board acted “in an arbitrary, capricious, and unreasonable manner” in denying the site plan.
She cited personal criticism from Planning Board members Tom Sears and Leonard Sabino, entered into record from the dais, as proof the denial was not based on fact and law.
Sears at one point admonished the applicant that his bid for a vape shop at town center was “an insult” to the community.
He wasn’t alone. A petition that several town mothers, including a police officer, launched against Marji’s application boasted 600 names by May 30, 2018.
Among residents’ objections: an allegedly harmful environment for kids, health and safety concerns, worry that the township would become a destination for vape shoppers from outside the area, and fears of eventual marijuana sales, which Marji vowed he would not provide.
Led by Chairman Brian Murphy, the Planning Board met April 25 and May 30, hearing from Marji, DiChiara, residents, a board of health rep, and off-duty township police officers, who spoke to enforcement concerns.
As well, a letter by concerned citizens appealed to the governing body for more to be done to prohibit marijuana operations in town, with the vape shop seen as a wedge.
The Planning Board shot Marji down, 7–0, and received applause from a packed house.
After the Planning Board nixed Marji’s application for legal retail sales, at the former Dairy Queen storefront at the mall’s main entrance, DiChiara, who was there with his attorney, told the Planning Board he would appeal.
“To push the responsibility on me to make ethical judgments on what tenants are there is an unfair request. Make your ordinance clear so I can understand it so I can conduct a business,” he said at the time.
(See “Vape shop shot down; Town Center landlord dings Planning Board,” John Snyder, June 1, 2018.)
Farrington agreed with DiChiara’s suit, which was argued and decided Oct. 30.
“The matter is remanded to the Township of Washington Planning Board to grant all necessary approvals for the application within 45 days of the date of this order,” she said.
The Planning Board meeting of Nov. 20 is listed as cancelled. The next meeting posted is Dec. 4 at 7:30 p.m.
Sears, reached for comment Nov. 7, told Pascack Press, “The judge doesn’t live in this town and the community doesn’t want it. So when it comes before the board we’ll see what happens.”
A subsequently passed emergency ordinance banning vape stores here is irrelevant to this application, Farrington ruled.
Independent Councilman Michael Ullman spoke out against that ordinance at its Dec. 17, 2018 introduction and Jan. 7 adoption, saying it restricts a use that is becoming more widely accepted.
(See “Marijuana Ban Grows: Township Boots Cannabis, Vapes, Paraphernalia,” John Snyder, Jan. 11.)
Pascack Press left messages with Marji, asking his intentions, and with Mayor Peter Calamari, Planning Board Chair Brian Murphy, and Planning Board Attorney Louis Lamatina, seeking their perspectives.
Head shop a family business
Marji sought to sell e-cigarettes and loose tobacco and pipe tobacco together with smoking accessories. The proposed store was 1,500 square feet, of which 1,200 was proposed to be dedicated to displays and a cashier station.
Marji testified that his family owned store would sell products to customers 21 and over, that there would be no smoking on the premises, and that he would not sell cigarettes, so as not to take business from the mall’s liquor store.
He told Pascack Press in a telephone interview before the May 30 meeting that he aimed to set up shop here because it was close to home. He also said he expected customers—locals or otherwise—to find him.
“At my store in Dobbs Ferry I have people who come from Jersey and cross the Tappan Zee to come to me. We do have a clientele,” he said.
He said he was “definitely” aware of local opposition to his application driven by “the mothers of Washington Township” who he said were on “their high horse.”
Nothing he aimed to sell at Washington Center was otherwise unavailable in the mall and at the neighboring gas station, he said.
He said lottery and alcohol sales, neither of which he was proposing, were available at the mall and presented social ills of their own that nevertheless were as zoning friendly as his wares.
Next step: perhaps a talk on the planning application process
Speaking to Pascack Press on Nov. 7, with Farrington’s order in hand, DiChiara claimed Marji remains interested in a lease at his Washington Town Center.
He added that he’s holding the former DQ storefront in reserve for another use—perhaps a FedEx or UPS outlet or real estate office. (Another Dairy Queen franchisee has since secured enthusiastic Planning Board approval for a site at the mall, near the theater, and will open soon.)
DiChiara said his next step would be to invite town officials to sit down with him to revisit his proposals going back 2 1/2 years on streamlining and making “less onerous” and less expensive the process by which retail site plan applications are entertained.
“I now possess the right to move forward with the vape shop. Whether I’ll do that I have to figure out,” he said.
Asked whether he was speaking for himself or was reflecting a sentiment among local business owners, he said he was speaking for himself.
He said he spends a lot of time “romancing” prospective tenants for his property and that they in turn invest substantial money in presenting to the Planning Board.
He repeated a sentiment he told the Planning Board when it rejected the vape store’s application, which he said was the first such rejection his family business received since opening here in 1959:
“If you want to change the ordinance, fine, change the ordinance. But in the meanwhile it would be tyranny if you just throw away all the laws you have and you decide to make decisions based on public opinion.”
Judge sharp on members Sears, Sabino
In reviewing the evidence, Farrington wrote, “The record of the proceedings of the Planning Board is devoid of findings of fact.”
She said the board members, “particularly Sears and Sabino made it clear by their comments that their consideration was not whether the use was permitted, which it was, but that they had some ethical or moral obligation to deny the application without any basis in law or fact.”
She added, “The alleged facts they claim to have relied upon are unsworn statements and hearsay. The bare conclusion in the resolution, after citing the testimony of Judith Beckmeyer, Angela Musella, lieutenants Calamari and Skinner [the latter now captain and the department’s officer in charge], that the applicant’s use of the premises endangers public health is unsupported in the record.”
Farrington said, “Use of tobacco products may endanger public health but their sale, which is legal and regulated, does not.”
Sears at one point in the proceedings advised the applicant that he was “insulting the community” by bringing his proposed use into the shopping center, which is within walking distance of the library and high school.
“Mr. Sears appeared to confuse a statement by the board’s engineer [Paul Azzolina] that if marijuana became legal to sell in New Jersey the sale of marijuana might be a possibility at the site,” Farrington said.
She added, “The applicant categorically denied any intent to sell marijuana, recreational or medicinal.”
At the time, Gov. Phil Murphy appeared close to a deal to allow such sales—a campaign promise—though that fell through. With the Legislature a lame duck, post-election, the measure might have new life, perhaps by referendum.
Azzolina testified that the property was in a Class C retail business zone, which is regulated under Township Code Section 245-57(a)(3) which he read into the record, and which says in part that no retail store shall “endanger the public health or safety or constitute a public nuisance or be noxious or offensive by reason of emission of dust, smoke, gas, or noise.”
Farrington shot that objection down, noting that the sale of tobacco products is legal and there would be no such nuisance or emissions.
