Fed. Dist. Court of NJ Holds Cemetery Act was Unconstitutionally Vague Under the Due Process Clause

This post was authored by Matthew Loescher, Esq.

Rosedale operated a large cemetery in Linden, New Jersey, for over a century. As it faced running out of interment space, Rosedale sought to open a new cemetery nearby and contracted to purchase 180 acres in Readington Township in 2015. The Township denied Rosedale’s application, and Rosedale sued the Township in the Superior Court of New Jersey, Law Division, Hunterdon County, on June 19, 2019. The Township removed the matter to federal court, and both parties moved for summary judgement.

Plaintiff’s constitutional challenge was that a standardless delegation by a legislature to a municipality—such as the one in New Jersey Cemetery Act (N.J.S.A. § 45:27-25(a))—violated the Fourteenth Amendment’s Due Process Clause. In response, the State argumed that subsection (a) borrowed a provision from the Municipal Land Use Law (“the MLUL”) to restrain Defendants’ exercise of discretion. The court found that the MLUL standard cited by the State did not appear anywhere in the thirty-eight provisions of the Cemetery Act, or in the provisions of N.J.S.A. § 45:27-25. As such, there was no basis for the Court to read this statute into subsection (a), absent any indication of legislative intent to do so. Thus, the court determined that the constitutionality of the consent provision must stand or fall on its own terms.

The record reflected that subsection (a) did not provide a statutory definition of consent, narrow the contexts in which consent may or may not granted, or provide any signal whatsoever as to the circumstances under which the Township will approve a new cemetery apart from a waiver. As subsection (a) stands, the court found that whether the Township approves a cemetery application hinged on the whims of the Committee members. Accordingly, the subsection was void for vagueness under the Due Process Clause.

 Defendants next contended that subsection (a) was a “freestanding provision” which “would have absolutely no impact upon the operation of the waiver provision” in subsection (d) if it were stricken. However, when subsection (a) was read in conjunction with subsection (d), it was readily apparent that a municipality must affirmatively authorize any new cemetery within its borders. Therefore, subsection (a) demonstrated a clear legislative intent to give municipalities the final say over whether a new cemetery may open. Consequently, if subsection (a) were severed, and the conditions in (b) and (c) did not trigger subsection (d), N.J.S.A. § 45:27-25 would not apply at all. The court therefore held that subsection (a) was not severable from the other provisions in N.J.S.A. § 45:27-25, and as such, subsections (b)-(d) were invalid.

 Rosedale and Rosehill Cemetery Assoc. v Township of Reading, 2020 WL 778457 (D. NJ 12/30/2020)