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Harris v. Borough of Fair Haven

MON-C-223-98, 1998 WL 915478 (N.J. Super. Ch. Div. 1998)

CEMETERIES—No New Jersey law expressly bars construction on land that may contain an historical cemetery.

A subdivision was approved for a piece of land that had been occupied by a church. The church had been destroyed by fire more than 100 years earlier and never rebuilt. Evidence was elicited that a small cemetery had been located somewhere in the church yard. After subdivision approval, but before construction began, some parties raised the issue as to the location of the graveyard. The municipality stayed the building permit and, although no graves were located, an agreement was reached between the municipality and the owner that a municipal official would stand by during excavation and, if remains were found, the job would stop pending further consideration. No remains were located by the time construction was finished.

There was an existing house on an adjacent lot for approximately 100 years and its owner then sought a variance in order to construct an addition to that house. A number of interested parties, including the owner of the lot on which the new house had just been built, objected based on the possible location of graves on this second lot. After the planning board voted to approve the application for an addition, but before a resolution was adopted, the neighboring owner asked the Court to bar the approval because of the board’s failure to give due regard for its potential impact on a graveyard which may have been located on the property. Even though courts do not consider such relief to be ripe for resolution prior to the formal adoption of a resolution, the Court recognized that it was a forgone conclusion that the board would approve the construction and, therefore, agreed to hear the matter.

New Jersey is bound by a “Historic Cemeteries Act.” The Act recognizes the problem of historic cemeteries but provides no remedy. Rather, the Act contains the legislature’s declaration that “it is altogether fitting and proper, and in the public interest, to enable local governmental units to assist in the restoration, maintenance and preservation of such cemeteries.” While it was apparent that the Legislature was concerned about the problem, all that it did was to imbue counties and municipalities with the power to make expenditures for the restoration of such cemeteries. The Act does not require those governmental bodies to do anything at all. The Court searched other legislation and was unable to locate an affirmative duty of a municipality to protect a graveyard. Finally, although the Superior Court possesses a general equitable jurisdiction over the dead, the Appellate Division read that power to deal with matters of disinterment and not as a requirement to compel a municipality to prohibit any action by an owner of private property containing a long defunct graveyard from otherwise lawfully using that property. Accordingly, the Court rejected the notion that it was authorized under the circumstances to compel the municipality to affirmatively act to protect an abandoned graveyard (which may not even have been on the property in question).


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