Nimmo v. Hackensack Zoning Board of Adjustment

A-2175-98T5 (N.J. Super. App. Div. 1999) (Unpublished)
  • Opinion Date: October 28, 1999

ZONING; CEMETERIES—A crematorium need not be an “inherently beneficial” use in some settings, and, in those cases, an applicant for a variance must satisfy the enhanced standard of proof test.

A property owner applied for a use variance to allow operation of a free-standing crematorium in a manufacturing zone. The board denied the application, concluding that the proposed crematorium was not an inherently beneficial use. The property owner instituted an action in the Law Division to challenge the denial and obtained a judgment that held a crematorium to be an inherently beneficial use. The matter was remanded to the zoning board. The board again denied the variance, claiming not to be able to identify the public policy objective in classifying the crematorium as an inherently beneficial use, and then holding that the proposed use was incompatible with both the municipality’s master plan and the other uses in this manufacturing zone. It claimed that it could find no conditions which could be imposed upon the proposed use which would reduce the detrimental effect upon the existing character of the neighborhood. The property owner again went to the Law Division and the lower court held that the zoning board’s decision on remand was arbitrary and unreasonable in light of its earlier ruling that the commercial crematorium was inherently beneficial. It then ordered that the variance be granted. Essentially, the lower court believed that there was no competent evidence of detriment “other than the fear and loathing of the objectors that somehow the crematoria would debilitate or blight.” The Appellate Division, however, disagreed with the lower court’s analysis and reversed the ruling. It pointed out that the New Jersey Supreme Court, despite legislative amendments to relevant statutes, still held that the applicant was not required to meet an enhanced proof requirement where a use is inherently beneficial. Consequently, it assumed that the variance application did not require judicial scrutiny with a view to whether it demonstrated, in addition to the statutorily requisite “special reasons,” an “enhanced quality of proof.” On the other hand, the status as an “inherently beneficial” use does not abrogate the requirement that applicants satisfy the positive and negative criteria of the law. The Court also disagreed with the lower court’s finding that the board’s assessment of community “fear and loathing” of a discreetly run crematorium in a mixed use neighborhood, next to a restaurant, must be wholly discounted as purely subjective absent “tangible proof.” It found that the proposed site demonstrated no particular suitability as a crematorium. Further, the Court believed that the board reasonably determined that a crematorium need not be deemed inherently beneficial in this particular setting. Thus, in the Court’s view, the applicant should have been required to meet the enhanced standard of proof test. In sum, the lower court’s judgment was reversed and the zoning board’s denial of the use variance was affirmed.