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Legal Updates for New Jersey Public Entity & Civil Rights

Ordinance Enacted to Prohibit Cannabis Business in Asbury Park Does Not Rise to the Level of ‘Shock the Conscience’

Legal Updates for New Jersey Public Entity & Civil Rights – September 24, 2025

September 24, 2025

by Matthew J. Behr

In Breakwater Treatment and Wellness Corp. v. The City of Asbury Park, Civil Action No. 23-3661 (D.N.J. 2025), the United States District Court for the District of New Jersey recently dismissed with prejudice a cannabis company’s constitutional challenge to a municipal ordinance banning cannabis businesses. The defendant argued that the ordinance violated its substantive due process rights by depriving it of a fair hearing before the zoning board and by being enacted in bad faith contrary to New Jersey’s cannabis regulatory framework. The court, however, held that even if the ordinance was improperly motivated or inconsistent with state law, such conduct did not meet the high constitutional threshold of government action that “shocks the conscience.”

The City of Asbury Park enacted an ordinance that prohibited the operation of any type of cannabis business in the city. Breakwater is a company that is in the cannabis business. Breakwater filed suit alleging violations of 42 U.S.C. §1983, in particular that the City of Asbury Park violated its substantive due process rights. The City of Asbury Park filed a motion to dismiss Breakwater’s complaint for failure to state a claim. The United States District Court of New Jersey granted the motion and dismissed Breakwater’s complaint with prejudice.

Breakwater’s second amended complaint alleged that the ordinance violated its substantive due process rights because it deprived them from receiving a fair hearing before the local zoning board. Since the ordinance prohibited any cannabis businesses within the city limits of Asbury Park, the zoning board had declined to hold a hearing on Breakwater’s application. Breakwater argued that the ordinance was enacted in bad faith with an improper purpose, which is a violation of CREAMMA (CREAMMA legalized and regulated New Jersey’s recreational cannabis business) and was not reasonably related to any legitimate interest in enforcing land use ordinances. 

In granting the motion to dismiss, the court held that a public entity’s misinterpretation of state law or its enforcement of an invalid zoning ordinance does not rise to the level of a substantive due process claim. In reaching that conclusion, the court held that even a bad faith violation of CREAMMA did not meet the “shocks the conscience” standard under constitutional law. 

The court emphasized that only the most egregious government conduct—behavior that shocks the conscience—can support a substantive due process claim. Even if the plaintiff’s allegations were true, the court determined that those allegations of improper motive or personal bias did not rise to the level to shock the conscience.

It is imperative that once a complaint is filed based on a substantive due process claim, the complaint needs to be evaluated in detail to determine if the plaintiff has raised sufficient facts to meet the high standard of conduct that shocks the conscience. If not, a motion to dismiss should be filed prior to any answer being filed.

Please do not hesitate to contact me with any questions regarding this case or other issues involving constitutional law. 


 

Legal Updates for New Jersey Public Entity & Civil Rights, September 24, 2025, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved.

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