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Rosemont Memorial Park Cemetery Association v. City of Elizabeth

A-7427-97T3 (N.J. Super. App. Div. 1999) (Unpublished)

ZONING; CEMETERIES; USE VARIANCES—Where a use variance did not limit a cemetery to a single crematory furnace, the addition of a second one was not a significant intensification of the use created by the variance.

A cemetery obtained a use variance to operate a crematory. Although the documentation submitted with the application indicated that it intended to install only one retort or incinerator, the variance contained no provision or condition limiting the number of retorts that could be used in the crematory. For about two years, the crematory operated using a single retort. It then obtained the permits allowing it to install a second retort. Shortly thereafter, the municipality issued stop work orders, alleging that the addition of the second incinerator was contrary to the use variance grant. The lower court held that the use variance did not limit the cemetery to one retort and, thus, addition of a second incinerator was permitted. In reaching this conclusion, “the judge cited the New Jersey Cemetery Act which defines ‛crematory’ as ‛a body or structure containing one or more furnaces or retorts intended for the reduction of bodies of deceased persons to incinerated remains.’” The Appellate Division affirmed and in doing so, it stated that it did not regard the addition of the second retort as a significant alteration or substantial intensification of the use created by the variance. Consequently, the stop work orders were without a legal basis.


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