Trinity Cemetery Association, Inc. v. Township of Wall

325 N.J. Super. 292, 739 A.2d 409 (App. Div. 1999)
  • Opinion Date: October 15, 1999

ZONING; CEMETERIES—Once land used by a cemetery is zoned for such use, it can not be rezoned to prohibit cemetery use.

A municipality rezoned a certain property from cemetery to residential use. The cemetery commenced an action in lieu of prerogative writ challenging the enactment of the zoning ordinance and the lower court granted summary judgment in favor of the cemetery on the ground that once the property was dedicated “for cemetery purposes,” the New Jersey Cemetery Act preempted the municipality’s zoning ordinance. The Appellate Division affirmed. Prior to November 1995, the cemetery’s land was zoned as residential. The municipality then adopted an ordinance creating a cemetery zone that included that land. The zone permitted mausoleums as an accessary use. Following the adoption of the zoning resolution, the New Jersey cemetery board issued a certificate of authority to the cemetery to operate. That certificate of authority was to be “in full effect” once the cemetery acquired title to the property and “a deed [was] appropriately filed.” Before the deed was filed, the cemetery submitted a site plan application to the municipality’s planning board. When the municipality’s governing body learned of the site plan application, it sought to return the property’s zoning to residential because it believed that it had been deceived by the cemetery’s predecessor in title whose proposal was for a pastoral cemetery development without mausoleums.

Under the Cemetery Act, the Legislature created the New Jersey Cemetery Board, granting it “full power and authority to administer the provisions of this act… .” According to the Appellate Division, the Cemetery Act was a pervasive enactment that governs most facets of cemetery activities. Therefore, a municipality “may not deal with the subject if the Legislature intends its own action, whether it exhausts the field or touches only part of it, to be exclusive and therefore to bar municipal legislation.” In this case, the Appellate Division believed that the Cemetery Act did express such a legislative intention and the municipality could not rezone the property to deprive the cemetery of the use of its land.