A dispute over a cannabis retailer’s right to operate in Burlington has led an appellate court to clarify that municipal councils must provide clear reasons when denying required support for state licensing. The case centers on whether the city council was obligated to explain its decision, which affects transparency and public understanding of local government actions regarding cannabis businesses.
Higher Breed NJ LLC, a cannabis business owned by Jim Waltz and Karen Waltz, filed a complaint against the City of Burlington Common Council in the Superior Court of New Jersey, Law Division, Burlington County (Docket No. L-1341-24) after being denied a resolution of local support (ROS). This resolution is necessary under state regulations for applicants seeking a Cannabis Retailer License from the New Jersey Cannabis Regulatory Commission (CRC). The complaint was filed on June 28, 2024, following several city council meetings where Higher Breed’s application was discussed and ultimately rejected.
According to court documents, Higher Breed sought to open a Class 5 cannabis retail establishment at a property on East Route 130 in Burlington. The property is located in a zoning district that permits retail cannabis businesses. After submitting its application on December 21, 2023, Higher Breed presented testimony at multiple city council meetings addressing concerns about location, operations, security, and community impact. Initially, the council voted unanimously to move the application forward for further discussion and public comment.
The process became contentious during subsequent meetings. At an April 16, 2024 meeting, Alan Sussman—a non-resident real estate broker—spoke during public comment alleging he was owed commission related to arranging the lease between Higher Breed and property owner Stephen Bergenfeld. Sussman described his experience with those involved as dishonest and untrustworthy: “In my experience… my dealings with these people, they are dishonest people.” He also claimed he had been excluded from financial arrangements after facilitating negotiations.
Sussman repeated his allegations at a May 14 meeting. After his remarks and without hearing further from Higher Breed or seeking additional information, some council members expressed personal objections or referenced being offended by correspondence from parties involved but did not discuss site suitability or compliance with ordinances. The ROS application was denied by a vote of four against and three in favor; no formal reason was provided in the official resolution.
Following this denial, Jim Waltz sent letters to the council disputing Sussman’s claims as “inaccurate” and “misleading,” asserting there had been misunderstandings about agreements among all parties. He later informed the council that differences with Sussman had been resolved: “We are pleased to inform you that a mutual understanding has been reached… [the] business relationship… has been successfully codified.” However, city officials responded that their decision stood and cited broad municipal discretion over such matters.
Higher Breed’s lawsuit argued that denying the ROS without explanation was arbitrary and unreasonable since similar applications—including one for another dispensary next door—had previously been approved by the same body. On October 25, 2024, a judge denied the city’s motion to dismiss Higher Breed’s complaint. On June 2, 2025, another judge granted summary judgment for Higher Breed NJ LLC, finding that while councils have discretion over these resolutions under state law (CREAMMA), their decisions must be based on relevant evidence rather than unrelated commercial disputes or personal grievances.
The court opinion stated: “The four members who voted against the ROS did not state a reason for their vote that was related to site suitability or not complying with Burlington City’s local ordinances.” It also noted inconsistencies since other similar businesses were granted support at previous meetings.
After appeals by both sides—including motions regarding enforcement—the Appellate Division affirmed parts of the lower court’s ruling but vacated others. Importantly, it held that municipal bodies must articulate discernible reasons when denying resolutions of local support so applicants and courts can understand their decisions: “For the City Council’s resolution to be accorded deference there must be a clearly discernible basis provided to support its decision.”
The appellate panel remanded the matter back to Burlington City Council for reconsideration of Higher Breed’s application with instructions to provide sufficient reasons supporting any future decision regarding issuance or denial of an ROS.
Attorneys representing parties included Michael A. Armstrong & Associates LLC (Michael A. Armstrong) for appellant City Council and Fox Rothschild LLP (Michael J. Malinsky and Amanda Moscillo) for respondent Higher Breed NJ LLC. The case is identified as Docket No. A-3414-24.
Source: A341424_Higher_Breed_NJ_Inc_v_The_City_of_Burlington_Common_Council_Opinion_New_Jersey_Superior_Court_of_Appeals.pdf