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Hecker v. Israel

Decided: June 6, 1962.

DAVID HECKER AND ROSE HECKER, HIS WIFE, PLAINTIFFS,
v.
CONGREGATION B'NAI ISRAEL AND THE TOWNSHIP OF DOVER, OCEAN COUNTY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Knight, A.j.s.c.

Knight

Plaintiffs are owners of certain property in the Township of Dover which is designated as lot 34 of block 410 on the tax map. The defendant Congregation B'Nai Israel is an incorporated religious society of the State of New Jersey and maintains a synagogue in the township on a parcel of land 4.94 acres in area and designated as lot 31 of block 410-B on the tax map. The congregation also owns other property in the township comprising approximately 6.89 acres. This latter parcel adjoins the property of the plaintiffs and is designated on the tax map as lot 33 of block 410.

On October 11, 1960 the congregation made application to the township committee for permission to locate a cemetery on the westerly 3 1/2 acres of the 6.89 acre lot. The township committee and the local board of health, by resolution, consented to and approved the establishment of the cemetery pursuant to the application. The plaintiffs thereafter instituted this suit in lieu of prerogative writ challenging the validity of the municipal action. The sole contention is that municipal consent to locate a cemetery in a municipality must be conferred by ordinance rather than resolution.

The pertinent statute is N.J.S.A. 8:3-2 which provides:

"No new cemetery or burial ground shall be located in this State * * * without the consent and approval of the governing body and board of health of the municipality in which it is proposed to locate * * * same, upon application in writing therefor."

The statute is silent as to the procedure a municipality must follow in issuing the requisite consent. Ordinarily, this lack of legislative direction would be of little moment since "it is well settled that where a statute fails to indicate whether the power [granted to a municipality] should be exercised by ordinance or resolution it may be done by either means." Fraser v. Township of Teaneck , 1 N.J. 503, 507 (1949); Tumulty v. Jersey City , 57 N.J. Super. 503, 514 (App.

Div. 1959). Here, however, plaintiffs resist the application of the general rule citing the case of Schinkel v. Fairview , 76 N.J.L. 445 (Sup. Ct. 1908), as support for their contention that an ordinance is the only vehicle by which the municipal consent and approval could be granted.

In Schinkel the Common Council of the Borough of Fairview consented by resolution to the location of a cemetery in the borough by the Fairview Heights Cemetery Association. The objectors attacked the consent on the ground it had to be conferred by ordinance rather than resolution. The Fairview Heights Cemetery Association was a body corporate organized under the rural cemetery association act, R.S. 8:1-1. The property of a cemetery association organized under that act was and is exempt from all taxes. R.S. 8:2-27. The only limitation on the number and size of cemeteries at the time of the decision was L. 1899, c. 72, p. 182 (now appearing in amended form as N.J.S.A. 8:3-1) which provided:

"No more than three cemeteries shall be located or placed under and by virtue of said act to which this is a supplement, in any one city, township or town in any county of this state; provided, however , that nothing in this section shall prevent any cemetery association now incorporated from continuing, maintaining, enlarging and conducting any cemetery in any township of this state where such cemetery has been located and used for the past ten years successively; and provided further , that in any township of this state where the capacity of an existing cemetery is exhausted, so that no further plots can be purchased, an additional cemetery may be created or placed at not less than three miles from any other existing cemetery in said township, subject, however, to all laws or provisions thereof governing and regulating cemeteries in this state."

While placing a numerical limitation upon cemeteries within a municipality, the provision imposed no size limitations thereon to the end that, in theory, three cemeteries could be permitted to occupy the entire area of a municipality without violating the statute. Also in effect at the time was L. 1897, c. 160, p. 296 which provided a borough council with the power:

"I. To pass, enforce, alter or repeal ordinances to take effect within the limits of said borough for the following purposes: To manage, regulate, protect and control the ...


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