Posted by: Patricia Salkin | October 8, 2020

NJ Appeals Court Agrees that Cemetery Association Must Follow Local Zoning Process for Expansion of Mausoleum

This post was authored by Dean Fazio, Touro Law Center

While certain legislative acts passed by a city or state can supersede the power of the local zoning ordinances, not all have this authority. The specific wording of the legislative act needs to be carefully reviewed before an applicant presumes that the normal local zoning ordinance and application process should be ignored. One case that tackles this topic and addresses the question above is Lakeview Memorial Park Association v Burlington County Board of Appeals, 232 A. 3d 529 (NJ App. 6/25/2020).

The Plaintiff wanted to expand one of the existing mausoleums on the property. Originally, when they were constructed in 1996 and 2005, the Plaintiff followed the local zoning process to obtain final approval. This process involved applying for a zoning permit, and upon approval, applying for a construction permit. However, when seeking approval of the mausoleum expansion, the Plaintiff chose to solely rely on a legislative act, the “Cemetery Act” which states “Construction shall not begin until detailed plans and specifications of the structure have been approved by the State Department of Community Affairs and the certificate of approval is filed in the office of the municipal enforcing agency where the structure is to be constructed. The State Department of Community Affairs shall not grant a certificate of approval unless it is satisfied that the proposed structure can be operated without constituting a hazard to public health or safety.”

Plaintiff submitted for and obtained approval from the DCA, sending this approval to the local zoning officer alleging exemption for the proposed addition based on two factors. The first was the language within the Cemetery Act that stated “Construction shall not begin until detailed plans and specifications of the structure” had been approved by the DCA. The second was due to the addition already being within the height and setback requirements of the Township’s zoning ordinance. However, the DCA approval did not consider any potential health and safety hazards related to the addition. The Plaintiff then applied for a building permit, without first adhering to the required pre-approval from the zoning officer. As a result, the building permit was denied, and the zoning official explained to the Plaintiff that the DCA approval (based on the Cemetery Act) did not circumvent the proper zoning process.

The Plaintiff appealed and the Defendants sought dismissal of the complaint for failure to state a claim and advising that administrative remedies would be appropriate if the Plaintiff would just follow the proper zoning process. The court sided with the Defendant due to the legislative act not superseding the authority of the existing zoning ordinances and process. This case is a classic example of Plaintiff’s misinterpreting legislative acts and potentially seeking to misuse them to bypass existing zoning ordinances and application processes.

Lakeview Memorial Park Association v Burlington County Board of Appeals, 232 A. 3d 529 (NJ App. 6/25/2020).


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