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Cedar Park Cemetery v. Hayes

Decided: February 28, 1975.


Smith, Harvey J.c.c., Temporarily Assigned.


[132 NJSuper Page 574] On February 7, 1974 the board of trustees of Cedar Park Cemetery adopted a resolution authorizing construction of a mausoleum on existing cemetery property in the Borough of Paramus. Plans and specifications were prepared for a structure large enough to hold more than 5300 crypts. A sales force was established and immediately launched a full scale "pre-need" sales campaign. Promotional literature was printed and disseminated. Advance sales were solicited through repeated newspaper advertisements. In seven months this nonprofit corporation expended approximately one-quarter million dollars on these preliminaries before application was made for a building permit.

For more than 30 years the 98.6-acre tract on which the mausoleum is to be erected has been continuously and exclusively used for cemetery purposes. To the north and west of the subject property are other cemeteries, making plaintiff's land part of a 400-acre contiguous cemetery area. To the south and east are public streets, across from which is land designated as residential by the local zoning code. The proposed building is to be set back 1300 feet from the street on its southerly boundary and 760 feet from the street on its easterly boundary. It is an architecturally attractive building, 227 feet wide, 102 feet deep, 38 feet at its highest point. Most of the building would be 32 feet in height. In addition to the actual crypt space, there are provisions for a chapel area, lobby, reception rooms, offices, lounge and bathrooms.

On September 12, 1974 application was made too the municipal building inspector for a permit too construct this mausoleum. N.J.S.A. 8A:3-14(a). The building inspector denied the application, citing as his reason for denial Paramus Ordinance 73-36, Art. 13M, adopted December 12, 1973 which declares a crematory or mausoleum as a prohibited use throughout the borough. On September 25, 1974 the full detailed plans and specifications were presented by the plaintiff to the State Department of Environmental Protection (DEP) for examination and approval before the commencement of building. N.J.S.A. 8A:3-14(b).*fn1 After denial by the building inspector, Cedar Park instituted this suit to compel the issuance of the necessary building permit. The Attorney General and the New Jersey Cemetery Board were served with notice of the action as parties deemed necessary to protect the public interest. N.J.S.A. 8A:2-3.

Plaintiff, Attorney General and Cemetery Board all assert the position that the New Jersey Cemetery Act of 1971 has divested the local building inspector and the municipality of

all authority in connection with mausoleum construction on existing cemetery property and that the State has totally preempted local regulation in this area. The building inspector and the municipality aver that the Cemetery Act of 1971 not only recognized a need for home rule control but, in fact, restated the existing law and reaffirmed the fact that local approval is a prerequisite in construction of this type.

To resolve this quandary, we must, for the first time, interpret our relatively recent Cemetery Act and, in particular, the express language of N.J.S.A. 8A:3-14, in the light of its legislative history. See 2A Sutherland Statutory Construction (Sands ed. 1973), § 48.03 at 191; N.J. Ins. Underwriting Ass'n v. Clifford, 112 N.J. Super. 195, 200 (App. Div. 1970).

Since 1875 the New Jersey Legislature has recognized the need to regulate places of interment. The method of cemetery incorporation and management was the focus of initial legislation. L. 1879, c. 162, § 1. No statutory financial control of cemeteries was provided during this early period. Unmaintained cemeteries were presenting local authorities with public health and welfare problems. The Legislature acted, not through penalties to cemetery companies, but by enabling municipalities to condemn unkempt cemeteries and reimburse plot owners through issuance of temporary obligation bonds. L. 1910, c. 238, § 1.

A separate enactment concerning mausoleums was promulgated by the Legislature in 1916. L. 1916, c. 233, § 1 et seq. It set forth materials to be used in construction, established a maintenance trust fund and provided tax exempt status when erected in a cemetery. This law remained substantially unchanged, until the most recent Cemetery Act revision, except that tax exemption was not specified in R.S. 26:6-42 to 49.

Subsequent to the original Mausoleum Act the Legislature further regulated cemeteries in 1939 by including trust fund requisites and more explicit language as to management and control. R.S. 8:1-1 et seq. However, broad loopholes in the language made cemeteries prime targets for financial speculation.

With no central board to implement the act and set standards, numerous cemeteries ended in financial disaster. George Wash., etc. v. Memorial, etc. Co., 139 N.J. Eq. 280 (Ch. Div. 1947); cf. Eliasberg, "Does the Knollwood Decision Augur an End to Cemetery Bootstrap Deals?" 27 J. of Taxation 224 (1967). Mausoleums were subject to equally egregious financial practices which ...

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