New Jersey’s election of Phil Murphy as governor has ushered in a ‘green rush’ of marijuana entrepreneurs anticipating a dramatic expansion of the Garden State’s legal marijuana market.¹ A Quinnipiac University poll, conducted in Sept. 2017, revealed that 59 percent of New Jersey residents approved of marijuana legalization.² Murphy, who had campaigned on a promise to sign a recreational marijuana bill within his first 100 days in office, joined a Democrat-led, marijuana-friendly Legislature, where Senator Nick Scutari had freshly re-introduced a legalization of recreational marijuana bill.³ The conventional wisdom was that the out-bound Governor Chris Christie, a vocal marijuana opponent whose administration had frustrated the implementation of the Compassionate Use Medical Marijuana Act (CUMMA), was the only barrier to a robust medical marijuana program and a recreational-use law. With the arrival of the new administration, the New Jersey green rush seemed a fait accompli. Industry forecasters were projecting New Jersey to be the East Coast marijuana hub, with a potential for a $1 billion market within a few years following legalization.⁴

Meanwhile, a quiet backlash was underway that would seem to belie the polling data. Many of the state’s local governments, concerned about the prospect of recreational marijuana businesses seeking to conduct operations in their communities, began to enact anticipatory opt-out ordinances. Between Dec. 2017 and late June 2018, at least 18 of the state’s municipalities passed local laws banning recreational marijuana businesses from operating within their borders.⁵ Another six municipalities have commenced the process toward similar bans. Two more municipalities as well as three counties—Monmouth, Ocean and Cape May—have passed resolutions condemning or opposing marijuana in some form.⁶ Conversely, only three municipalities have signaled their intention to accommodate marijuana businesses.⁷

Organizations seeking to establish alternative treatment centers (ATCs) under New Jersey’s existing medical marijuana program have not fared much better. From Oct. 2011 to early 2012, the zoning boards of Maple Shade, Upper Freehold, Westhampton, Plumsted, and Jackson rejected requests from the state’s six licensed ATCs to locate their cultivation and/or dispensary facilities within their borders.

Local Opt-Outs in Other States

State and local conflict on marijuana is certainly not novel to New Jersey. Even in states with broad public support for legalization, there are many towns that do not welcome marijuana growers, processors, testing facilities or dispensaries. As states with more developed legal marijuana programs have been grappling with this issue over recent years, a new legislative paradigm is emerging—the ‘local option.’ These states have included express language in their marijuana legalization laws to pro-vide dissenting localities a path to ‘just say no’ to commercial marijuana activity. Washington, Oregon, California, Alaska, Nevada, Arizona, Michigan, and Massachusetts have all enacted some variation of the local option.

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