This post was authored by Matthew Loescher, Esq.            

Petitioner 2102 Partners, LLC, was the owner of the subject property, upon which the petitioner WCC Tank Technology, Inc. operated a fuel tank lining business. In January 2017, after receiving complaints from neighborhood residents, the Town of Newburgh Code Compliance Department an interpretation from the ZBA regarding whether certain uses and/or activities were permitted under the terms of the 1982 use variance that had been granted to the past owner. This proceeding was made pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Newburgh, which denied the petitioners’ application for an interpretation that the indoor parking and storage of vehicles with mounted hydrovac equipment was a permitted use pursuant to a 1982 use variance.

On appeal, the court found that while the petitioners claimed that they would be using the hydrovac vehicles in connection with their fuel tank lining business, the testimony of the petitioners’ representative at the public hearing was clear that the petitioners were proposing to use the hydrovac vehicles in connection with an entirely different business. The court concluded that this separate hydro-excavation business was not permitted under the terms of the 1982 use variance. Thus, the ZBA’s determination had a rational basis and was consistent with its April 2017 decision wherein it found that the 1982 use variance did not permit the premises to be used for and in support of a hydro-excavation business.

The court further held that the petitioners failed to show, based on competent financial evidence, and by dollars and cents proof, that they could not yield a reasonable rate of return absent the requested use variance. Accordingly, the ZBA’s determination denying the petitioners’ application for a use variance was not illegal, arbitrary and capricious, or an abuse of discretion. The court therefore affirmed the Supreme Court’s determination to deny the petition and dismiss the proceeding.

WCC Tank Technology v Zoning Board of Appeals of the Town of Newburgh, 2021 WL 191200 (NYAD 2 Dept. 1/20/2021)

This summary appears in the Perkins Coie Land Use and Development Law Briefing and is posted with permission of the California Land Use Attorneys with Perkins Coie, LLP

The court of appeal held that a medical marijuana dispensary could recover its marijuana plants seized
by law enforcement, finding that violation of the ordinance did not render medical marijuana plants
“contraband” per se and subject to seizure.

Under established caselaw, local governments may by zoning ordinance prohibit medical marijuana
dispensaries within their jurisdiction. In this case, the County prohibited cultivation of more than 99
medical marijuana plants anywhere within the county limits. Citing violation of this ordinance, local law
enforcement seized approximately 2,000 medical marijuana plants from a dispensary.

The court held that the County was required to return the seized plants, reasoning that a local
ordinance restricting cultivation of medical marijuana plants does not change the legal status of medical
marijuana under state criminal law (nor could it, as any attempt to do so would be preempted).
Possession of medical marijuana by personnel qualified under state law is not a crime. Thus, marijuana
possessed for medical purposes in compliance with state standards is not contraband and therefore not
subject to seizure. The court noted that although the concept that marijuana is not contraband (e.g., not

illegal under state law in certain circumstances) is relatively new, local governments are bound by state
law and cannot withhold property legally possessed under state law.

Granny Purps, Inc. v County of Santa Cruz, 53 Cal. App. 5th 1 (2020)

This post was authored by Matthew Loescher, Esq.

Plaintiff Yoshikawa, resided in the City and County of Honolulu and owned waterfront real property located in Kaneohe. Plaintiff hired James Schmit to design plans and obtain a building permit so that Plaintiff could repair and renovate his property in accordance with rules and regulations pertaining to construction within the shoreline setback area. Schmit submitted a building permit application for an “Addition and Alteration to existing Single Family Dwelling,” which required approval from various sources, including the Building and Zoning divisions within the City’s Department of Planning and Permitting (“DPP”). After the permit was approved, building inspector Troy K. Seguirant issued a Notice of Violation and Stop Work Order on the project. the City’s Board of Building Appeals (“BBA”) then denied Yoshikawa’s appeal, which led to the filing of this case.

Plaintiff first alleged that Seguirant violated 42 U.S.C. § 1981, by interfering with his contractual relationships with his architect and general contractor. Plaintiff Yoshikawa and Plaintiff’s architect, general contractor and his employees alike were not born and raised in Hawaii. This precluded Plaintiff from pleading a Section 1981 claim because a class of people that consisted of “anyone not born and raised in Hawai‘I” was not a protected class under Section 1981 or the McDonnell Douglas framework. Plaintiff’s equal protection claim similarly failed due to his failure to provide any factual allegations showing that Seguirant applied the law in a discriminatory manner or applied different burdens to different classes of people, as required in a class-based equal protection claim.

Plaintiff next contended that Seguirant and the City were each liable under Section 1983 for violating Plaintiff’s procedural due process rights under the Fourteenth Amendment. The court rejected this claim. Finding it unclear how Plaintiff could assert that the City did not afford him process with respect to the deprivation at issue, when his architect—represented by counsel—participated in a contested case hearing before the BBA, and the BBA Order was appealable. Moreover, the central premise of Plaintiff’s equitable estoppel claim was that Plaintiff was entitled to proceed with construction of the Project in accordance a letter his received from a County official. Here, the BBA considered and rejected this argument and Plaintiff did not appeal the BBA Order. As such, the court held it lacked jurisdiction over this claim.

Next, Plaintiff argued that Seguirant violated his substantive due process rights by “depriving Plaintiff of his vested rights under the Amended Building Permit, and the use or enjoyment of his property for two years.” The record reflected that Plaintiff himself alleged that Talboys and/or Schmit “violated applicable code and regulations of DPP” and “caused the scope of the Project to exceed the scope of the permits.” At the motions hearing, Plaintiff’s counsel explained that the claims against Schmit and Talboys were alternative theories of liability in the event that the Court rejected Plaintiff’s principal claim that he was entitled to proceed with the Project. Nevertheless, as Plaintiff conceded that it was at least possible that the Project violated municipal law, Plaintiff could not plausibly claim that Seguirant’s actions – enforcing the provisions that Schmit and/or Talboys may violated – were wholly divorced from a governmental interest.

Yoshikawa v City and County of Honolulu, 2021 WL 54363 (D. HI 1/6/2021)

This post was authored by Georgia Reid of Touro Law Center

An amendment to a land-use master plan in Chatham, New Jersey, left many cars with nowhere to go.  The history of this contested lot dates back to the 1960s.  Plaintiff, 4 Watchung Ave. (“Plaintiff”), was a car dealer who had an accessory parking lot to store vehicles in Chatham, New Jersey.  Plaintiff started leasing the lot in 1992 and then purchased it in 2002 from Otto Schmidt, Jr. (“Schmidt”).  Schmidt himself had been using the lot to store vehicles since 1998. 

All was status-quo for Plaintiff’s lot until 2013 when Chatham amended its land-use master plan pursuant to a report by professional planner Dr. Susan G. Blickstein (“Blickstein”).  Blickstein’s plan envisioned an overlay zoning plan called “Gateway to Chatham,” which would amend the borough’s M-1 and M-3 zones, prohibiting all uses not permitted as a principal, accessory, or conditional use.  Plaintiff’s lot was located in M-1, where outdoor vehicle storage was not a permitted use. In 2014, Plaintiff was served a notice of violation and an order to abate the parking and storing of cars on the lot.  Plaintiff went to the Zoning Board of Adjustment (the “Board”) appealing the violation, or, alternatively, seeking a use variance and site plan approval to permit its continued parking of cars in the lot. 

The first hearing with the Board took place in 2016.  Interestingly, there was an unsigned 1971 resolution from the Board involving the previous owner of the lot, Schmidt, who had applied for a variance application.  The approval of the variance was conditioned on the erection of a fence around the property and limited the number of vehicles to 125. Plaintiff considered its options, including amending the application to request a certificate of nonconformity.  In a follow-up meeting, Plaintiff told the Board that Plaintiff intended to challenge the violation and decided against seeking the variance. Blickstein, who also served as the Board’s staff planner, was present and significantly participated in the proceedings.

After two more meetings, the Board in 2017 unanimously denied Plaintiff’s appeal from the zoning violation. The Board concluded that Schmidt was required to obtain a use variance in 1971 because the storage of automobiles was not a conditional use permitted in the zone under the prior ordinance and that the property had not been granted a use variance in 1971. The Board then voted to deny Plaintiff a use variance. Plaintiff appealed. Following two sessions, the Board again voted to deny Plaintiff’s appeal from the violation and application for a variance.

The parties next appeared before the Law Division judge (the “judge”) in 2018.  The question for the judge was whether Chatham’s failure to enforce the zoning regulations on the lot estopped further prosecution of the violation and was implicit proof that Schmidt obtained the variance in 1971.  Plaintiff also asserted that “Blickstein’s involvement as both the author of Chatham’s master plan revision report and as the Board’s staff planner presented a conflict of interest that tainted the proceedings.”  The judge found that substantial evidence in the record supported a finding that the 1971 Schmidt application was approved and that Schmidt was indeed granted a use variance.”  He granted partial judgment to Plaintiff and declined to reach the estoppel issue.  As far as Blickstein’s potential conflict of interest, the judge found none.

All of these hearings lead to the 2010 case of 4 Watchung Ave. v. Zoning Bd. of Adjustment of Chatham, and the 2020 decision of the Court.

The Board and Chatham argued the judge erred by substituting his assessment of the evidence for the Board’s judgment of that evidence. Plaintiff countered and also filed a cross-appeal. Plaintiff again asserted that Blickstein “was a conflicted party” and that her participation and advice during the initial hearings were prejudicial. Plaintiff also claimed that Chatham’s “inaction and actions” subject its prosecution of any zoning violation to the doctrine of “municipal estoppel.”

The Court reversed in part, affirmed in part, and remanded in part for further proceedings. 

The Court agreed with the judge regarding Blickstein’s lack of a conflict of interest.   Plaintiff argued that Blickstein’s dual roles as the author of the borough’s Master Plan Revision report and Board planner violated the Local Government Ethics Law (LGEL), which provides that “no local government officer or employee shall undertake any employment or service, whether compensated or not, which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties.” Plaintiff claimed Blickstein’s ability to render objective advice to the Board as its planner was “compromised by her commitment to the objectives of the revision report.” Defendant argued that Blickstein’s role as Board planning consultant aligned with Chatham’s interests in adopting the revision report, and there was no hint that Blickstein had any direct or indirect, personal or pecuniary interest in Plaintiff’s application. The Court agreed that Blickstein’s dual role could not leave the public with a perception of conflicted loyalties. 

The Court disagreed with the judge about the use variance granted to Schmidt in 1971.  The Court held that the Board’s decision that Plaintiff’s property was not granted a use variance in 1971 was not arbitrary, capricious, nor unreasonable.  

The Court declined to decide the estoppel issue. It remanded the matter to the trial court: “review of the above cases makes clear that critical factual determinations must be made on a case -by-case basis, and that further discovery might necessarily be needed.”

4 Watchung Ave. v. Zoning Bd. of Adjustment of Chatham, (Super. Ct. App. Div. Jan. 31, 2020). 

This post was authored by Zoe Ferguson, JD (Admission pending)

The Alabama Supreme Court rejected a developer’s attempt to circumvent local ordinances to build a 36-lot subdivision, holding that the developer failed to show that he had a vested right to fill wetlands on his property, that the ordinances were invalid, or that he was not obligated to comply with those ordinances.

Charles K. Breland, Jr. and his company Breland Corporation (collectively “Breland”)  purchased 65 acres of land in Fairhope to build a residential subdivision requiring filling of 10.5 acres of wetlands. Breland obtained a federal permit to fill the wetlands in 2002.

In 2006, Fairhope enacted an ordinance to protect wetlands. Without applying for a land-disturbance permit, Breland prepared to fill the wetlands but was issued a stop-work permit. Two years later, Breland applied for land-disturbance permits from the city and county. The county granted a permit, but the city never responded and later enacted more wetland protection ordinances. In 2011, without attempting to get the city permit, Breland again tried to fill the wetlands and was issued a second stop-work order as well as a criminal citation for failing to obey a city ordinance.

Breland sued Fairhope, seeking a judgment that they had a vested right to fill the wetlands based on their expenses, the local ordinances were preempted by state law and improper de facto zoning laws, and the city was negligent in mishandling the 2008 permit application. Breland also sought expungement of his citation. The trial court entered summary judgment for Fairhope, mostly on statute of limitations grounds. On appeal, the Alabama Supreme Court reversed and remanded. The trial court held Breland had not obtained a vested right, state law did not preempt the ordinances, and they were not improper zoning laws, so the negligence and expungement claims were moot.

On appeal, the Alabama Supreme Court rejected Breland’s claims.

First, the court explained, Breland did not obtain a vested interest in filling the wetlands, despite his significant expenses in permit applications, approvals, and preparing for development. Though physical improvement may not always be required, the court found that Breland’s “lack of physical improvement to the property, combined with other equitable considerations,” prevent such an interest.

The court added that the city was empowered to adopt ordinances for public safety, health, morals, and general welfare, and the wetland protection ordinances were not preempted by state law because the legislature did not clearly express intent to create field preemption for wetlands regulation in either the Alabama Environmental Management Act or the Alabama Water Pollution Control Act. The ordinances do not conflict with state law on wetland regulation either; rather, they “merely enlarge” the state’s regulations.

Further, the trial court did not commit palpable error in finding that the ordinances are “designed to minimize harm and impacts to the environment and adjacent property owners” and are not de facto zoning laws. The ordinances impact what land can be used for. “The fact that regulations limit the type of activity that take place on real property, however, does not convert them into zoning laws.”

Breland’s negligence and expungement arguments were found to be moot.

Breland v. City of Fairhope, 2020 WL 7778223 (Ala 12/31/2020)

Posted by: Patricia Salkin | January 8, 2021

NE Supreme Court Upholds Special Use Permit for Chicken Feedlot

This post was authored by Zoe Ferguson, JD (admission pending)

The Supreme Court of Nebraska rejected a bid to reverse the grant of a special use permit for a chicken feedlot, holding that the district court did not commit clear error in affirming that local authorities’ evidence to approve the permit was sufficient.

In 2018, Randy Essink obtained a special use permit from Lancaster County to build and operate a commercial poultry feedlot on his farm in an agricultural district, “designated for agricultural use and…intended to encourage a vigorous agricultural industry.” The permit process included a public hearing with testimony from witnesses for Essink and the county. Two nearby property owners, E. Jane Egan and Janis Howlett, appealed the decision to the Board of Commissioners, which approved the permit after another public hearing. The property owners then appealed the decision to the district court, which affirmed the permit at a bench trial, using the testimony from the public hearings as part of the evidence. The district court also held that Egan lacked standing. Egan and Howlett appealed.

The Supreme Court affirmed, holding that the lower court did not clearly err in its findings that Egan lacked standing and the permit was proper.

Egan, who lives 12.7 miles away from Essink’s property, testified that she feared the poultry operation would result in pollution and depreciation of surrounding property values, and if the operation was approved, another one might be approved near her property. Howlett, who lives 0.6 miles from Essink’s property, testified she feared the facility would pollute the air quality and reduce her property value.

Even Egan could not identify an injury in fact to establish standing, and the court rejected her arguments that she still had standing either under a specific statute or under the “great public concern” exception to the injury-in-fact standing requirement. Declining to extend the “great public concern” exception from situations involving “the citizens’ interest in the government” to this set of facts, the court also rejected Egan’s claim of standing under a statute permitting property owners to institute an action to prevent unlawful construction, pointing to the fact that this action was, in fact, about a legally granted permit.

Because Howlett did show injury-in-fact standing, the court proceeded to examine and reject the arguments regarding insufficient evidence to support the permit. Howlett argued that the district court could not possibly have considered the effect of the proposed operation on the character of the neighborhood, traffic conditions, and other public health, safety and general welfare concerns, as required by zoning regulations. The court made swift work of these arguments, explaining that the district court’s finding held the weight of a jury verdict and Howlett pointed to no concrete evidence to support her assertions of adverse effects of the proposed poultry operation.

Egan v. Cnty of Lancaster, 308 Neb. 48 (12/31/2020)

This post was authored by Tyler Doan of Vermont Law School  

Property owner applied for a conditional use permit to use their three-acre parcel as a parking lot. The parcel sits on a road connecting to an entrance to Zion National Park. The area the parcel is in is zoned “Valley Residential,” where zones must be attractive for residential development while preserving the open agriculture and farm type of the area. The property is adjacent to residences. The surrounding area is zoned for a mix of both residential and commercial uses. The south and southwest area is zoned Village commercial, which allowed low impact commercial and services uses.

When the property owner applied for the permit, parking lots were allowed as conditional uses in the Valley Residential zone. At the time, the code required denial of the permit if the anticipated detrimental effects could not be substantially mitigated by the proposal or imposition of reasonable conditions. Before a Planning Commission vote, a memorandum from the Director of Community Development outlined the potential impacts that a parking lot on the property would produce, including increased noise, traffic, and noxious odor. The memorandum further recommended adding additional conditions such as requiring additional landscape buffers and limiting the hours of use.

After a public hearing, the Planning Commission recommended denying the permit application. The Planning Commission found the proposed lot cannot be screened adequately from surrounding properties citing that the code provides that the allowed uses are generated to avoid incompatible uses in close proximity and preserve the peace, quiet, and privacy in residential zones. The Planning Commission concluded that the proposed lot would change the property’s Village Residential designation’s appearance and character. The issue then went before the Town Council, which denied the permit application after a public hearing. It agreed with the Planning Commission and found the proposed lot is in the middle of an existing residential neighborhood, less than twenty feet from a residence, and would substantially increase traffic, activity, and noise in an existing neighborhood, among other issues.

Landowner appealed the denial, arguing the Town Council did not correctly apply the conditional use standards, and the decision was arbitrary and capricious. After another hearing, the Appeal Authority affirmed the denial of the permit. The Appeal Authority also found that the Planning Commission and Town Council thoroughly discussed site conditions, surrounding uses, potentially adverse impacts, and whether they could be mitigated and all the Town Council’s additional findings. The Appeal Authority concluded the Town Council’s decision was not arbitrary or capricious and emphasized. However, parking was an allowable use, and it was only conditionally allowable subject to reasonable conditions to mitigate reasonably anticipated detrimental effects of the proposed lot following applicable standards.

The landowner then appealed to the district court, claiming the decision was arbitrary and capricious because it was not supported by substantial evidence in the record. It was illegal because it was based on the incorrect interpretations of land use regulations contrary to law. The district court dismissed the petition with prejudice. It determined the decision was not illegal, as there was no evidence that the decision was based on the incorrect interpretation or contrary to law. Secondly, the court found the decision was one a reasonable mind could reach and was based on substantial evidence in the record.

Landowner appeals the district court decision as having erred in dismissing the petition for review because the Appeal Authority’s decision was illegal and not supported by substantial evidence. The Court of Appeals of Utah addresses two arguments by the landowner. First being the district court incorrectly concluded that substantial evidence supported the Appeal Authority’s decision to deny his conditional use permit application. Second, the district court incorrectly concluded that the Appeal Authority’s decision was not illegal.

For the first argument, the Appeals Court of Utah reasoned all previous decisions were correct in their rulings as the proposed lot would interfere with the lawful use of the surrounding properties. Since the proposed lot was close to residential lots, there would be impacts from traffic, lights, noise, garbage, odors, and possible loitering; the previous decisions were correct. Additionally, the Planning Commission and Town Council meetings had taken public opinion and had used them to help their decision. The Appeals Court of Utah determined that while the public’s opinion was considered, it was not relied on. The Court determined that there was substantial evidence from which the reasonable mind could conclude that the proposed lot would reasonably interfere with the surrounding properties’ lawful use.

The Court further holds that there is further substantial evidence that the proposed mitigation conditions proposed and considered would not substantially mitigate the anticipated detrimental effects. The Court again relied on the information provided in the DCD memorandum and the findings of the Appeals Authority to conclude substantial evidence had been entered to determine that even if the mitigating conditions had been complied with, they would not do enough to substantially mitigate the detrimental effects the proposed lot would generate.

On the second issue of illegality, the Appeals Court of Utah reasoned that, unlike Waikiki Marketplace, the issue constitutes a lawful use and not how to measure the term of lawful use. The Court stated that it is reasonable to deny a conditional use where the use is determined to be incompatible with surrounding uses when applying relevant legal standards. The Court determined the interpretations the Appeal Authority made and the district court confirmed were not incorrect interpretations of land use regulation or otherwise contrary to law.

Staker v Town of Springdale, 2020 WL 7779019 (UT App. 12/31/2020)

This post was authored by Matthew Loescher, Esq.

Gail Moreschi owned residential property in Linn Township next to Suzanne and William Edwards. The Edwards tore down the existing home on their property with plans to rebuild it. Linn Township approved their building plans, the Edwards petitioned the Board for the requisite zoning variance. After the Village of Williams Bay Extraterritorial Zoning Board of Appeals approved Suzanne and William Edwards’ variance request, Gail Moreschi – the Edwards’ neighbor – filed a writ of certiorari. Moreschi filed her writ within 30 days after the Board orally voted to grant the Edwards’ a variance, but before the Board issued and filed a written copy of its decision.

 In this case, Moreschi contended that the triggering event for certiorari review occurred either immediately after the Board orally voted at the May 23, 2017 hearing, or when she received the Board’s draft minutes of that hearing on June 28, 2017. Moreschi claims that Wis. Stat. § 62.23(7)(e)3. and ETZ Ord. § 18.1716(C)(2) support her position because they require the Board to “immediately” file its minutes “showing the vote of each member upon each question.” The Determination Form checks all the requisite boxes for a filing of the decision: it is a tangible document, it states the Board’s decision, it was filed in the Board’s office, and it is a separate document from the Board’s minutes. Therefore, Moreschi’s right to certiorari review was triggered on July 31, 2017, when the Determination Form was filed in the office of the Board. Because Moreschi’s certiorari-review right was not triggered until the Board filed the Determination Form, the court held that there was no merit to her claim that she was denied due process by the inclusion of the Determination Form or the approved minutes in the certiorari record.

As a final matter, the court held that the Board acted under the correct theory of law because its explanation in the Determination Form satisfied the requirements of ETZ Ord. § 18.1716. Accordingly, the decision of the court of appeals was affirmed.

Moreschi v Village of Williams Bay, 2020 WL 7756329 (WI 12/30/2020)

This post was authored by Matthew Loescher, Esq.

In 2018, Petitioner Moore desired to apply to construct a 1200 square foot residence on her property, and therefore sought a waiver of, or compensation for, the application of Eugene City Code 9.2751(18)(a)3 to her desired use of the property. This code limited the square footage of a residence she could construct on the property to 10% of the total lot area. As applied, a residence on the property would be limited to 462 square feet. The City Council denied the claim, and the trial court affirmed this decision.

On appeal, petitioner argued that to trigger a prospective claim, a land use regulation need not “prohibit” all residential use of residentially zoned private property. The court noted that the word “prohibit” only appeared in three of the exemptions to a prospective claim found in ORS 195.305(3). This was significant, as it was implausible to infer that the voters meant to authorize a prospective claim under ORS 195.305(1) and ORS 195.310(1)(c) where a land use regulation restricted the residential use of private property in the sense for which petitioner advocated, but not where the regulation actually prohibited residential use of the property. Accordingly, the court determined that the structure of the statutory scheme reflected that “restrict” in ORS 195.300(14)(c), ORS 195.305(1), and ORS 195.310(1)(c) included the prohibition of a claimant’s residential use of his or her property.

The court next found that the term “restrict,” as used in ORS 195.300(14) (c), ORS 195.305(1), and ORS 195.310 (1)(c) modified the noun “use,” and should therefore be interpreted as “part of a phrase in harmony with the meaning of use.” As such, the court determined, to “restrict” residential use within the meaning of those provisions, a land use regulation adopted after an owner acquired her property must limit the owner’s preexisting legal right to use her residentially zoned private property for a residential purpose, and not merely alter applicable siting and developments standards. The trial court’s holding, that the dwelling size standard in respondent’s ordinance did not restrict the residential use of petitioner’s property, was therefore affirmed.

Moore v City of Eugene, 2020 WL 7770886 (OR App. 12/30/2020)

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)

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