NJ Appeals Court Holds that While Cemetery is Allowable Nonconforming Use, Proposed Crematorium on the Site is an Accessory Use that Requires Variance

This post was authored by Jacqueline Rupelli, Touro College Jacob D. Fuchsberg Law Center

Plaintiff Old Tennent Cemetery Association sought a preliminary and final site approval plan for an addition that would be used as a crematorium on land already used for burial plots.  During the Planning Board’s hearing on the application, a non-for-profit group, “Stop the Manalapan Crematorium” (SMC) spoke and argued that the Planning board did not have jurisdiction to approve variances for expansion of nonconforming uses. SMC argued in favor of keeping the neighborhood residential in which it is already zoned for. The Plaintiff argued that it already has a pre-existing nonconforming use status, and a crematorium is nothing more than an accessory use.  Plaintiff argues that the site plan application is all that is required and therefore the Planning board does have jurisdiction on this matter.

The Planning Board’s Attorney, advised the planning board that the Zoning board has the authority to decide on matters regarding preexisting nonconforming use.  Additionally, the Attorney explained the Planning Board does not have jurisdiction because the “nonconforming use status” was never certified by the Zoning Board. This resulted in the Planning board denying the initial site approval plan. The Plaintiff consequently appealed.

The Court concluded that Old Tennent Cemetery does have a nonconforming use, but that adding a crematory would be an expansion of this non-conforming use.  The main issue in this case revolves around the Plaintiff’s, “Preexisting non-conforming use” status. Ultimately, it was decided that the Zoning board has the authority here.  A crematorium is not permitted explicitly by any ordinance, they are considered accessories and therefore variances are required. It was determined a pre-existing non-conforming use existed in this case, but a crematorium is an accessory use that the Zoning Board of Adjustment has exclusive jurisdiction over.

Old Tennent Cemetery Ass’n v. Twp. Of Manalapan Planning Bd., A-2961-19 (NJ Sup. 10/20/2021)