This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 11, 200 -- Decided November 8, 2001
PER CURIAM
The issues before the Court are: 1) whether a municipality is preempted by the New Jersey Cemetery Act,
N.J.S.A. 8A:1-1 to -12-6, (Cemetery Act) from adopting an ordinance rezoning property from cemetery to
residential use after the New Jersey Cemetery Board has issued a certificate of authority permitting the property to
be used for cemetery purposes subject only to the recording of the deed, which occurred after the municipal
ordinance was introduced but prior to its adoption; and 2)whether the allegations of deception asserted by the
municipality, if proven, would constitute a basis for invalidating the municipality's adoption of an ordinance that
rezoned the property for cemetery use.
Trinity Cemetery Association (Trinity) owns six and one-half acres of vacant undeveloped land located in
Wall Township (Township). Prior to November 1995, the land was zoned residential. In 1995, Trinity's
predecessor in title, in an effort to have the property rezoned for cemetery purposes, submitted a proposal to the
Township that showed a pastoral, park-like cemetery setting with sprawling green, no headstones, and a stone
walkway encircling the property.
On November 5, 1995, the Township adopted Ordinance 25-1995, creating a cemetery zone that included
the Trinity property. The zone also permitted mausoleums as an accessory use. Subsequently, on July 17, 1996, the
Township adopted a resolution consenting to the establishment of a cemetery on Trinity's property. The resolution
was contingent on any other required State and local approvals.
On December 5, 1996, the New Jersey Cemetery Board (Cemetery Board) issued a certificate of authority
to Trinity to operate a cemetery. The Cemetery Board notified Trinity that the certificate of authority would be “in
full effect” once Trinity acquired title to the property and properly filed the deed. Trinity acquired title on January
15, 1997 but did not record the deed until April 28, 1997.
In the interim, on February 20, 1997, Trinity submitted a site plan application to the Township Planning
Board for its cemetery property. The plan included mausoleums, with the property surrounded by a stone wall.
Upon learning of the site plan application, the Township's governing body introduced Ordinance 10-1997 to rezone
Trinity's property from cemetery use to residential use. The Township took this action because of its belief that it
had been deceived by Trinity's predecessor in title's proposal of a pastoral cemetery development without
mausoleums. On May 5, 1997, the Township Planning Board recommended the approval of Ordinance 10-1997,
and the Township adopted it on May 14, 1997. Trinity never received approval of its site plan application.
Trinity filed an action challenging the enactment of the Township's ordinance rezoning its property from
cemetery to residential use. On July 18, 1997, Trinity moved for summary judgment, which was granted on the
ground that once Trinity's property was dedicated “for cemetery purposes,” the Cemetery Act preempted the
Township's zoning ordinance.
The Appellate Division affirmed the decision of the trial court, holding that the Cemetery Act preempted
Wall Township's attempt to rezone the property back to residential use.
The Supreme Court granted certification.
HELD: The New Jersey Cemetery Act preempted Wall Township from adopting an ordinance rezoning property
from cemetery to residential use after the New Jersey Cemetery Board had issued a certificate of authority
permitting the property to be used for cemetery purposes. Further, if the Township proves before the Law
Division that it was deceived by Trinity Cemetery Association, Inc. in the course of consenting to Trinity's
cemetery application, then the Township can rescind that consent.
1. Wall Township was preempted by the Cemetery Act from adopting an ordinance rezoning the property to
residential use after the Cemetery Board issued a certificate of authority, the deed to the property having been
recorded on April 28, 1997 before the Township's ordinance was finally adopted on May 14, 1997. (P. 5-6)
2. Nevertheless, the Court is compelled to reverse the judgment of the Appellate Division and remand the matter to
the Law Division for trial. The allegations of deception asserted by Wall Township, if proved, would require a
court to invalidate the original ordinance that initially rezoned the Trinity property from residential to cemetery use.
The revised site plan was “drastically different” and no longer depicted a pastoral setting with in-ground graves.
(Pp. 6-7)
3. The original ordinance permitted mausoleums as an accessory use and imposed lot coverage and height
limitations, the validity of which are not contested. Thus, the Court need not and does not address any questions
relating to the Township's authority to include in the 1995 ordinance provisions regulating the construction of
mausoleums on property dedicated to cemetery use. The land coverage and height requirements set forth in that
ordinance will govern the construction of the mausoleums on the cemetery property if the Township on remand
does not prevail on the deception issue. (Pp. 7-8)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division
for proceedings consistent with this opinion.
JUSTICE VERNIERO, concurring, writes separately to express his view that the 1995 ordinance
restricting mausoleums is invalid on its face. He would thus conclude that the approval process should begin anew,
regardless of whether deception is proved. That disposition would give the Township the opportunity to reevaluate
Trinity's application and would serve to alert municipalities to avoid exceeding their statutory authority and to
exercise care when adopting future ordinances.
JUSTICE ZAZZALI, concurring, writes separately to address the question, not addressed by the Court,
whether a municipality may limit the number of mausoleums built in a cemetery under the Cemetery Act. In his
view, the Act does not preclude municipalities from regulating the number of mausoleums that may be built in a
cemetery. Thus, Justice Zazzali would conclude that an ordinance establishing a cemetery zone with mausoleums as
accessory structures is valid and could be enforced.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN and LONG join in this opinion.
JUSTICES VERNIERO and ZAZZALI filed separate concurring opinions. JUSTICE LaVECCHIA did not
participate.
SUPREME COURT OF NEW JERSEY
A-
87 September Term 1999
TRINITY CEMETERY ASSOCIATION,
INC.,
Plaintiff-Respondent,
v.
THE TOWNSHIP OF WALL
(incorrectly designated as
MAYOR AND COUNCIL OF WALL,
MONMOUTH COUNTY, NEW JERSEY),
Defendant-Appellant.
Argued October 11, 2000 -- Decided November 8, 2001
On certification to the Superior Court,
Appellate Division.
William J. Wolf argued the cause for
appellant (Bathgate, Wegener & Wolf,
attorneys; Mr. Wolf and Michael M. DiCicco,
on the briefs).
William Harla argued the cause for
respondent (DeCotiis, Fitzpatrick, Gluck,
Hayden & Cole and Katz & Dougherty,
attorneys; Mr. Harla and George T.
Dougherty).
Nancy Costello Miller, Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (John J.
Farmer, Jr., attorney; Andrea M. Silkowitz,
Assistant Attorney General, of counsel).
PER CURIAM
This appeal presents two principal issues for
resolution. The first is whether a municipality is
preempted by the New Jersey Cemetery Act, N.J.S.A.
8A:1-1 to -12-6 (Cemetery Act), from adopting an
ordinance rezoning property from cemetery to
residential use after the New Jersey Cemetery Board
has issued a certificate of authority permitting the
property to be used for cemetery purposes subject only
to the recording of the deed, which occurred after the
municipal ordinance was introduced but prior to its
adoption. The second issue is whether the allegations
of deception asserted by the municipality, if
established at a plenary trial, would constitute a
basis for invalidating the municipality's initial
action by ordinance that rezoned the property for
cemetery use.
The Appellate Division, in an unpublished
opinion, held that the Cemetery Act preempted the
municipality's attempt to rezone the property back to
residential use. That court did not address the
deception issue.
The Appellate Division summarized the facts that
are pertinent to our disposition:
Plaintiff, Trinity Cemetery
Association, Inc. ("Trinity"),
commenced an action in lieu of
prerogative writs challenging the
enactment of a zoning ordinance by
defendant, the Township of Wall
("Township"), rezoning Trinity's
property from cemetery use to
residential use. On July 18,
1997, Trinity moved for summary
judgment. Following oral
argument, the motion judge granted
summary judgment on the ground
that once Trinity's property was
dedicated "for cemetery purposes,"
N.J.S.A. 8A:6-7, the New Jersey
Cemetery Act, N.J.S.A. 8A:1-1 to -
12-6, preempted the Township's
zoning ordinance. We affirm.
Trinity owns property located
in the Township consisting of six
and one-half acres of vacant,
undeveloped land. Prior to
November 1995, the land was zoned
as residential. In 1995,
Trinity's predecessor in title
sought to have the Township rezone
the property for cemetery
purposes. In connection with
efforts to rezone the property,
the prior owner submitted a
proposal to the Township showing a
pastoral, park-like cemetery
setting with sprawling green, no
headstones and a stone walkway
encircling the property.
On November 5, 1995, the
Township adopted Ordinance 25-
1995, creating a cemetery zone
that included the Trinity
property. The zone permitted
mausoleums as an accessory use.
Subsequently, on July 17, 1996,
the Township adopted a resolution
pursuant to N.J.S.A. 8A:6-5,
consenting to the establishment of
a cemetery on Trinity's property.
The resolution was "contingent
upon any other approvals necessary
from the State of New Jersey and
local approving agencies."
Following the adoption of the
Township resolution, on
December 5, 1996, the New Jersey
Cemetery Board ("Cemetery Board")
issued a certificate of authority
to Trinity to operate as a
cemetery. See N.J.S.A. 8A:3-2.
The Cemetery Board notified
Trinity that the certificate of
authority would "be in full
effect" once Trinity acquired
title to the property and "a deed
[was] appropriately filed."
Although Trinity acquired title on
January 15, 1997, the deed was not
recorded until April 28, 1997.
In the interim, on February
20, 1997, Trinity submitted a site
plan application to the Township
planning board for its cemetery
property. The plan included
mausoleums, with the property
surrounded by a stone wall. When
the Township governing body
learned of Trinity's site plan
application, it introduced
Ordinance 10-1997 to rezone
Trinity's property from cemetery
use to residential use. The
Township took this action because
it believed that it had been
deceived by Trinity's predecessor
in title by the proposal of a
pastoral cemetery development
without mausoleums. Following its
introduction on April 23, 1997,
the Ordinance was forwarded to the
Township planning board for review
and recommendation as required by
N.J.S.A. 40:55D-64. On May 5,
1997, the Township planning board
recommended the approval of
Ordinance 10-1997, and the
Township adopted the ordinance on
May 14, 1997. Trinity never
received approval of its site plan
application.
Trinity subsequently
commenced this action challenging
the adoption of Ordinance 10-1997.
It then moved for summary
judgment, arguing that the
Cemetery Act preempted the
Township's enactment of
Ordinance 10-1997.
We are in agreement with the Appellate Division's
conclusion that the Township was preempted by the
Cemetery Act from adopting an ordinance rezoning the
property to residential use after the Cemetery Board
issued a certificate of authority, the deed to the
property having been recorded before the Township's
ordinance was finally adopted. The court observed:
The Cemetery Board issued a
certificate of authority to
Trinity with the condition that it
acquire property and "file the
deed." Trinity complied with that
condition on April 28, 1997.
Because these events occurred
before the enactment of Ordinance
10-1997, the Township was
preempted from rezoning Trinity's
land.
Nevertheless, we are compelled to reverse the
judgment of the Appellate Division and remand the
matter to the Law Division for trial. Our view of the
record persuades us that the allegations of deception
asserted by Wall Township, if proved, would require a
court to invalidate the original ordinance that
initially rezoned the property in question from
residential to cemetery use. The Township's
affidavits allege that the original plan consisted of
a “pastoral, park-like setting, with sprawling greens,
no headstones, and a stone walkway encircling the
property.” The revised site plan was “drastically
different” and no longer depicted a pastoral setting
with in-ground graves. “The original park-like
setting was instead replaced with large mausoleum
structures and showed the entire property being
surrounded by a massive stone wall . . . .” As the
Appellate Division observed in Zoning Bd. of
Adjustment of Green Brook v. Datchko,
142 N.J. Super. 501, 508-09 (1976):
If, as here, a municipal authority
has been induced to grant relief
in connection therewith by fraud,
it need not stand idly by. It or
the municipal governing body may
institute an action, such as that
in the present case, to rescind
the relief so granted and to
enjoin what is actually a
violation of the zoning ordinance
and plan.
Accord Stafford v. Stafford Zoning Bd.,
154 N.J. 62,
77-78 (1998).
As noted, the original Township ordinance
permitted mausoleums only as an accessory use. The
record informs us that that ordinance also imposed
lot coverage and height limitations, the validity of
which are uncontested. The cemetery operator asserts
that its revised plan complies with those limitations.
Accordingly, we need not and do not address any
questions relating to the Township's authority to
include in the 1995 ordinance provisions regulating
the construction of mausoleums on property dedicated
to cemetery use. Because the authority of the
Township to enact the 1995 Ordinance is not an issue
that requires resolution in this appeal, the land
coverage and height limitations set forth in that
ordinance will govern the construction of mausoleums
on the cemetery property in the event that the
Township does not prevail in the remand proceeding on
the deception issue.
Reversed and remanded.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN
and LONG join in this opinion. JUSTICES VERNIERO and
ZAZZALI filed separate concurring opinions. JUSTICE
LaVECCHIA did not participate.
SUPREME COURT OF
NEW JERSEY
A-
87 September 1999
TRINITY CEMETERY ASSOCIATION,
INC.,
Plaintiff-Respondent,
v.
THE TOWNSHIP OF WALL
(INCORRECTLY DESIGNATED AS MAYOR
AND COUNCIL OF WALL, MONMOUTH
COUNTY, NEW JERSEY),
Defendant-Appellant.
_____________________________
VERNIERO, J., concurring.
The Court concludes that the New Jersey Cemetery
Act, N.J.S.A. 8A:1-1 to -12-6 (Act), preempted Wall
Township (Township) from adopting an ordinance
rezoning property from cemetery to residential use
after the New Jersey Cemetery Board (Board) had issued
a certificate of authority permitting the property to
be used for cemetery purposes. The Court also holds
that if the Township proves before the Law Division
that it was deceived by Trinity Cemetery Association,
Inc. (Trinity) in the course of consenting to
Trinity's cemetery application, then the Township
could rescind that consent.
I agree with the Court's two holdings. I write
separately to express my view that the Township's 1995
ordinance restricting mausoleums is invalid on its
face. I thus would conclude that the approval process
should begin anew, irrespective of whether deception
is proved. That disposition would afford the Township
the opportunity to reevaluate Trinity's application on
a clean slate. It also would alert municipalities to
avoid exceeding their statutory authority and to
exercise care when adopting ordinances in future
cases.
In Cedar Park, the Law Division invalidated a local ordinance that would have banned all mausoleum construction, concluding that the municipality lacked the authority to impose such a ban under the Act. The Attorney General, as counsel for the Board, had argued for that result. Cedar Park's holding has been understood and followed without hue and cry from any quarter for the past twenty-five years. Citing that decision, one noted commentator has interpreted the Act as follows:
As to cemetery regulation, municipalities may exclude them altogether, under the zoning power, but once the use is permitted it cannot be subsequently restricted by rezoning of the area, nor may building of mausoleums on the property be forbidden if they meet uniform standards and conform to reasonable local height and setback requirements.
[William M. Cox, New Jersey Zoning and Land Use Administration § 21- 3.2(m) at 442 (2001).]
Under the 1995 Ordinance, any proposed construction of mausoleums by Trinity that exceeds nineteen percent of lot coverage would be forbidden, whether or not Trinity satisfied local height and setback requirements. That, I submit, is contrary to the spirit, if not the letter, of Cedar Park and the unambiguous language of the Act. Further, even if the 1995 Ordinance is consistent with the dictates of Cedar Park, that does not end the inquiry because Cedar Park was decided prior to the 1979 revisions to the Act. (As more fully described in Section II below, those revisions define expressly the parameters of local control, some of which are breached by the 1995 Ordinance.)
The Act provides considerable authority to municipalities to impose height and setback requirements on mausoleum construction, N.J.S.A. 8A:3- 14.1, and to supervise all phases of such construction, N.J.S.A. 8A:3-14(c). Those are significant powers, especially when coupled with the municipality's authority to deny the creation of the cemetery in the first instance. As observed by the Cedar Park court:
Under the [] Cemetery Act each municipality retains a substantial residuum of power. They may exclude new cemeteries or prevent territorial expansion of cemeteries within municipal boundaries. N.J.S.A. 8A:6-5; see Clifton v. Cresthaven Cemetery Ass'n, Inc., 136 N.J. Eq. 56 (Ch. 1944). The necessary compliance by a cemetery or mausoleum with local regulations is expressed in several sections. N.J.S.A. 8A:3- [3]; N.J.S.A. 8A:10-4. Significantly, the Legislature left with municipalities the power to enact ordinances pertaining to interment. N.J.S.A. 26:6-2, 5, 36, 40. With regard to mausoleum construction, application must be made for a building permit; the municipal building inspector issues the building permit, supervises construction and must certify the structure before use. N.J.S.A. 8A:3-14(a), (c), (d).
When interpreting a statute, a court's
“overriding goal must be to determine the
Legislature's intent.” Dep't of Law & Pub. Safety v.
Gonzalez,
142 N.J. 618, 627 (1995). However, “[i]f
the statute is clear and unambiguous on its face and
admits of only one interpretation, we need delve no
deeper than the act's literal terms to divine the
Legislature's intent.” State v. Butler,
89 N.J. 220,
226 (1982). The statute here could not be clearer.
It provides: “Any local ordinance . . . enacted
regulating the construction of said [mausoleums] shall
be of no force or effect[.]” N.J.S.A. 8A:3-14.1.
When a municipality limits mausoleums to accessory use
only and then proscribes their lot coverage, it is
clearly “regulating” their “construction” in the
ordinary sense of those terms. “Our task is to
interpret the statute sensibly, attributing ordinary
and logical meaning to the statute's text.” Alderiso
v. The Med. Ctr. of Ocean County, Inc.,
167 N.J. 191,
199 (2001). Simply stated, any ordinance that
restricts mausoleums to accessory uses and limits
their lot coverage constitutes a regulation on their
construction in violation of N.J.S.A. 8A:3-14.1.
The holding in Diocese of Metuchen v. Township of
Piscataway,
252 N.J. Super. 525 (Law Div. 1991), one
of the few reported cases in this area, does not
support the 1995 Ordinance. In that case, the Law
Division concluded that N.J.S.A. 8A:3-14.1 did not
preclude a municipality from regulating off-street
parking near a mausoleum. In reaching that
conclusion, the court was persuaded by the fact that
the Act did not expressly prohibit a municipality from
restricting off-street parking and that the power to
adopt that form of regulation had been conferred
specifically on municipalities under Title 40. “'[I]t
is well-established that a specific statutory
provision dealing with a particular subject prevails
over a general statute on the same subject.'” Id. at
531 (quoting Zoning Bd. of Adjustment v. Serv. Elec.
Cable T.V. of N.J., Inc.,
198 N.J. Super. 370, 381
(App. Div. 1985)) (alteration in original). Here, the
Township's regulation of mausoleums is at variance
with the Act and implicates no other statute
specifically governing those structures. The
principle espoused in Diocese of Metuchen is thus
inapplicable.
While the Legislature was considering the Bill, the Law Division decided Roman Catholic Diocese of Newark v. Cerone, No. L-35806-79 (Law Div. Feb. 15, 1979). At issue in Cerone were a series of regulations that the Borough of North Arlington had imposed on mausoleums, including those establishing height, setback, and dimension requirements. The court invalidated some of the regulations at issue, such as a 500-foot setback requirement, which the court deemed unreasonable. In dicta, the court approved another restriction, one that limited mausoleums to one per cemetery. That restriction, however, was not contested, and thus was not in issue, because the cemetery's application sought approval for only one mausoleum. In an unreported decision, the Appellate Division affirmed.
On June 25, 1979, the Senate amended the Bill to delete the phrase “except the municipal zoning ordinance” that the Assembly had added. At the same time, the Senate adopted this language: “provided, however, that any municipality may enact zoning ordinances which provide for reasonable height and setback requirements in keeping with such standards established for property immediately abutting a cemetery.” According to the statement accompanying the Senate's revisions, those revisions were intended to
conform[] the language of the bill to a recent decision by the New Jersey Superior Court (Roman Catholic Diocese of Newark v. Cerone, Superior Court, Law Division, Docket No. L-35806-76, 1979). In that decision, the court rules that, while mausoleum construction may be subject to a municipality's zoning ordinances, such ordinances -- such as those pertaining to height and setback requirements -- must be “reasonable.”
[Assembly State Government, Federal and Interstate Relations and Veterans Affairs Committee Statement to Assembly Bill No. 1491 of 1979 (Bill Statement).]
The Legislature ultimately adopted the Senate's revisions. Hence, the current text of N.J.S.A. 8A:3- 14.1 reads in pertinent part:
Any local ordinance heretofore or hereinafter enacted regulating the construction of said [mausoleums] shall be of no force and effect; provided, however, that any municipality may enact zoning ordinances which provide for reasonable height and setback requirements in keeping with such standards established for property immediately abutting a cemetery.
The decision in Cerone, when read in conjunction
with the portion of the Bill Statement quoted above,
supports the conclusion that the 1995 Ordinance is
facially invalid. Because N.J.S.A. 8A:3-14.1 does not
expressly authorize a municipality to limit the number
of mausoleums, the Legislature intended to conform the
Act only to that portion of Cerone that it accepted
(and which it expressly included in the Bill
Statement), namely, the portion permitting
municipalities to enact “reasonable” height and setback
requirements on mausoleums. The remaining portions of
Cerone (an unreported decision) serve no precedential
value, and cannot reliably be considered part of our
common law. R. 1:36-3; see also Lance A. Wade, Note,
“Honda Meets Anastasoff: The Procedural Due Process
Argument Against Rules Prohibiting Citation to
Unpublished Judicial Decisions,”
42 B.C. L. Rev. 695,
710 (2001) (observing within context of federal circuit
court rules that decision's unpublished status
“create[s] no new law contributing to common law
development”).
Moreover, the Act provides almost unfettered
authority to the Board to regulate a cemetery company's
realty and other assets. The Act states:
The New Jersey Cemetery Board shall have full
power and authority to administer the
provisions of this act and shall have general
supervision and regulation of and
jurisdiction and control over all cemetery
companies and their property, property
rights, equipment and facilities so far as
may be necessary for the purpose of carrying
out the provisions of this Title.
Within the ambit of that broad grant of power is at least an implied authority for the Board (and not for a municipality) to limit or otherwise regulate mausoleums.
Absent the Cerone decision, the Bill's history verifies that the Legislature considered unlimited authority for municipalities in respect of mausoleum regulation and then settled on the carefully circumscribed authority reflected in the statute's current text. In adopting that text, the Legislature balanced notions of home rule against its concern over “contradictory local requirements” governing mausoleum construction. Bill Statement. In so doing, it enacted an unambiguous statute that all courts must respect and “'enforce [] according to its terms.'” Sheeran v. Nationwide Mut. Ins. Co., 80 N.J. 548, 556 (1979) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442, 452 (1917)).
Although the Act's legislative history supports the conclusion that the 1995 Ordinance is invalid, one need look no further than the plain language of the Act to reach that result. See Butler, supra, 89 N.J. at 226 (emphasizing that legislative history need not be considered when statute is unambiguous on its face). In that regard, I cannot improve on the observation of Justice Felix Frankfurter, whose view concerning the Supreme Court's construction of an act of Congress in Shapiro v. United States, 335 U.S. 1, 42-43, 68 S. Ct. 1375, 1397, 92 L. Ed. 1787, 1812 (1948) (Frankfurter, J., dissenting), applies with equal force to the case at hand:
Construction, no doubt, is not a mechanical process and even when most scrupulously pursued by judges may not wholly escape some retrospective infusion so that the line between interpretation and substitution is sometimes thin. But there is a difference between reading what is and rewriting it.
In short, I would enforce the literal terms of the statute. In so doing, I would apply a common-sense meaning of “construction” to conclude that the 1995 Ordinance impermissibly regulates mausoleums and is thus void.
III.
I also would recognize that in the exercise of its threshold power, the Township may approve or disapprove Trinity's plan depending on the number of mausoleums proposed. The parties do not dispute that, by virtue of its authority, the Township may condition its consent to Trinity's plan on the applicant's intended use of mausoleums. The municipality, however, cannot approve Trinity's application and then forbid, curtail, or otherwise regulate the construction of mausoleums, except as expressly permitted by the Act.
A- 87 September Term 1999
TRINITY CEMETERY
ASSOCIATION, INC.,
Plaintiff-
Respondent,
v.
THE TOWNSHIP OF
WALL (incorrectly
designated as
MAYOR AND COUNCIL
OF WALL, MONMOUTH
COUNTY, NEW
JERSEY),
Defendant-
Appellant.
__________________________
ZAZZALI, J., concurring.
I write separately to address the question, which
we do not decide here, whether a municipality may
limit the number of mausoleums built in a cemetery
under the Cemetery Act. N.J.S.A. 8A:1-1 to 12-6. In
my view, the Cemetery Act does not preclude
municipalities from regulating the number of
mausoleums that may be built in a cemetery. I
therefore conclude that an ordinance establishing a
cemetery zone with mausoleums as accessory structures
is valid and could be enforced.
In 1979, the State's responsibility for approving plans for mausoleum construction was transferred yet again, this time from the DEP to the Department of Community Affairs (DCA). L. 1979, c. 255 (codified at N.J.S.A. 8A:3-14 to -14.1). That move codified an agreement that had been reached between the DEP and the DCA whereby, shortly after the Uniform Construction Code Act was adopted, the DEP allowed the construction experts in the DCA to handle oversight of mausoleum construction. See Senate State Government, Federal and Interstate Relations and Veterans Affairs Committee, Statement to Assembly Bill No. 1491 (stating intent to transfer supervisory power to DCA because of “expert staff in the field of construction”). The legislation also required the DCA to establish “rules and regulations regulating the construction of public mausoleums” and prohibited any such local rules except for ordinances providing for reasonable height and setback requirements. N.J.S.A. 8A:3-14.1. More specifically, that statute provides in part that “[a]ny local ordinance . . . regulating the construction of [public mausoleums] shall be of no force or effect . . . [except] zoning ordinances which provide for reasonable height and setback requirements.” Ibid.
The 1979 law settled an ambiguity in the Cemetery Act concerning whether towns were permitted to establish construction code standards for mausoleums. See Cedar Park Cemetery v. Hayes, 132 N.J. Super. 572, 583 (Law Div. 1975) (holding that towns could regulate “setback distances, building dimensions and construction standards” of mausoleums under Cemetery Act) (emphasis added). The legislation was additionally intended to conform with an unpublished Law Division decision holding that towns were allowed to impose reasonable height and setback conditions on mausoleum construction. Senate State Gov't, Federal and Interstate Relations & Veterans Affairs Committee Statement to A-1491(2R).
The case in point is Roman Catholic Diocese of Newark v. Cerone, No. L-35806-76 (Law Div. Feb. 15, 1979), where the Law Division held that municipalities may regulate mausoleum construction by establishing reasonable height and setback requirements. The ordinance in that case also permitted the municipality to limit the number of mausoleums to one per cemetery. In ruling, the trial court confirmed that municipalities retained the power to regulate the number of mausoleums in a cemetery, by specifically noting that “[t]he restriction of one mausoleum per cemetery . . . is facially valid.” Cerone, (slip op. at 29). Although the Legislature, as discussed above, intended to tailor the Cemetery Act amendments to conform to the Cerone decision, the Legislature adopted Cerone's holding only with respect to height and setback requirements and not the language permitting municipalities to regulate the number of mausoleums in a cemetery.
The adoption by the Legislature of one aspect of Cerone and not another, in my opinion, does not evince an intent to prevent municipalities from regulating the number of mausoleums in a cemetery. Instead, the Legislature's codification of Cerone's holding that municipalities may establish reasonable height and setback requirements corresponds to the narrow purpose of the bill _ to effect the transfer of supervisory authority over mausoleum construction from the DEP to the DCA. I believe that if the Legislature had had any reservation about Cerone's holding regarding a municipality's reserved power to regulate the number of mausoleums per cemetery, it would have said so. Rather, aware that the DCA presumably would assume regulatory oversight over height and setback requirements under its new authority, the Legislature's reference to Cerone suggested that it considered it prudent not to interfere with the common-law rights of municipalities recognized in the trial court's decision. The Legislature did not need to codify a power long understood to be reserved to municipalities.
Finally, assuming arguendo that Cerone was the first court to recognize municipal authority to limit the construction of mausoleums, the argument that the Legislature adopted only one part of Cerone and rejected the other part is belied by the legislative commentary to the bill and runs contrary to a fundamental rule of statutory construction that “a partial codification of a common-law rule does not necessarily abolish such portion of the rule not encompassed within the statute.” 15A Am. Jur.2d Common Law § 15. See also Blackman v. Iles, 4 N.J. 82, 89 (1950). (“If a change in the common law is to be effectuated, the legislative intent to do so must be clearly and plainly expressed.”)
The scope of the 1979 law was considered by the Law Division in Diocese of Metuchen v. Township of Piscataway, 252 N.J. Super. 525, 531 (Law Div. 1991). The court concluded that N.J.S.A. 8A:3-14.1 does not preclude a municipality from regulating off-street parking requirements for a proposed mausoleum. Although recognizing that section 14.1 could be read narrowly to permit a municipality to regulate only height and setback requirements, the court noted that municipalities also were specifically authorized under the Municipal Land Use Law (MLUL) to establish standards for “off-street parking.” N.J.S.A. 40:55D- 65d. Ibid. Because of that separate provision under the MLUL, the court held that the Cemetery Act did not preclude local regulation of off-street parking near a mausoleum. Ibid.
“Construction,” although not defined under the Cemetery Act, is defined under the Uniform Construction Code Act to mean “construction, erection, reconstruction, alteration, conversion, demolition, removal, repair or equipping of buildings or structures.” N.J.S.A. 52:27D-121. Moreover, “construction” commonly means “the form or manner in which something has been put together.” Webster's Third New International Dictionary (1971). Within the context of the Cemetery Act, the term thus connotes the building and design of mausoleums and generally precludes local regulation of those activities. The preclusion of local regulation of construction, however, does not affect the authority of a township to regulate the number of mausoleums to be built in a cemetery.
That interpretation of the term “construction” is congruent with the function of the agency that is charged with overseeing that activity: the DCA. The DCA's expertise generally is in supervising how buildings are to be constructed, not how many should be constructed. The fact that the Legislature requires the DCA to establish appropriate criteria for the construction of mausoleums consistent with the Uniform Construction Code suggests that the Legislature was concerned with preempting a municipality's ability to impose its own unique construction code requirements on cemetery corporations, with the exception of height and setback requirements.
Moreover, that view accords with the historical scope of regulatory power exercised by the State Department of Health and the DEP prior to the DCA's oversight responsibility after the 1979 amendments. Prior to the DEP's regulation under the Cemetery Act, the State Department of Health reviewed construction plans according to specific statutory provisions regarding exterior construction as well as the interior sealing of crypts. Cedar Park, supra, 132 N.J. Super. at 579. The DEP's supervision of mausoleum construction, however, centered on drainage and sewage concerns. In Cedar Park, the DEP conceded that its power to regulate construction could not exceed its own administrative standards to insure that sewage construction and corresponding sewage systems were installed and functioned properly. Id. at 579- 80; N.J.A.C. 7:9. The control exercised by both of the DCA's agency predecessors evidences that at no time did the Legislature empower a state agency to determine whether a mausoleum could be built. Instead, the overriding concern was the manner in which mausoleums should be built.
The Legislature's decision in 1979 to transfer authority to the DCA validates this concept. The transfer from the DEP to the DCA, as discussed above, sought to place mausoleum construction under the jurisdiction of the most qualified administrative agency to handle construction issues. The Uniform Construction Code Act grants the DCA authority to issue regulations pursuant to the Act. The DCA's own regulations concerning the Uniform Construction Code mirror the self-imposed restraints over construction practiced by the State Department of Health and the DEP. The stated intent and purpose of the DCA's regulations include:
1. To encourage innovation and economy in construction and to provide requirements for construction and construction materials consistent with nationally recognized standards.
2. To formulate such requirements, to the extent practicable, in terms of performance objectives, so as to make adequate performance for the use intended as the test of acceptability.
5. To insure adequate maintenance of buildings and structures throughout the State and to adequately protect the health, safety and welfare of the people.
6. To eliminate unnecessary duplication of effort and fees in the review of construction plans and the inspection of construction.
[N.J.A.C. 5:23-1.3]
Stated simply, the DCA is a watchdog agency regarding construction standards and methods, not a council sitting in judgment deciding whether construction is to proceed in the first place. If the Legislature had been concerned with localities limiting the number of mausoleums to be created within cemeteries, it likely would have assigned that regulatory responsibility to the Cemetery Board rather than to the DCA. The State's authority over mausoleum construction, however, is assigned expressly to the DCA and no provision in the Cemetery Act expressly or implicitly grants the Cemetery Board such power. Furthermore, as the court in Diocese of Metuchen concluded, although N.J.S.A. 8A:3-14.1 may be read technically to preclude any municipal regulation over mausoleums other than height and setback requirements, such an interpretation should not prevail where the Legislature has assigned municipalities powers and responsibilities under separate statutory provisions that do not conflict with the regulation of the “construction” of mausoleums. In Diocese of Metuchen, because the municipality was expressly authorized under N.J.S.A. 40:55D-65d to establish standards for “off-street parking,” the court held that the Cemetery Act did not preclude local regulation of off-street parking near a mausoleum. 252 N.J. Super. at 531. In this case, that same section of the MLUL, section 65, provides that municipalities may adopt zoning ordinances that regulate “the percentage of lot or development area that may be occupied by structures.” N.J.S.A. 40:55D-65b. The authority of the Township to regulate the number of mausoleums to be built in a cemetery is therefore not only permissible, but also is a prerogative quite distinct from the authority to regulate the manner in which those structures are constructed. The Cemetery Act clearly precludes only the latter of these rights.
Quite apart from the language of the Act, the legislative history of N.J.S.A. 8A:3-14.1 supports that conclusion. The genesis of the 1979 law was the Legislature's intent to transfer the State's authority to supervise mausoleum construction from the DEP to the DCA and its concern with the existing “contradictory local requirements” relating to mausoleum construction. Assembly State Government, Federal and Interstate Relations and Veterans Affairs Committee Statement to Assembly Bill No. 1491 of 1978. The Legislature intended to conform the Cemetery Act with an unpublished decision that not only allowed local height and setback requirements, but also upheld a local restriction on the number of mausoleums that could be created in a cemetery. Cerone, supra, (slip op. at 29). There is no indication that the Legislature ever has been concerned about municipalities abusing their authority to decide whether to limit the number of mausoleums in cemeteries within its borders. Both N.J.S.A. 8A:3-14 and N.J.S.A. 8A:3-14.1 are designed to ensure that mausoleums are built in a safe manner, are subject to strict State and local oversight, and conform to uniform, statewide construction code requirements and not to contradictory local requirements. See N.J.S.A. 8A:3-14b (stating that the DCA must ensure that mausoleums will not constitute a “hazard to public health or safety”). Neither of these statutes restricts municipal discretion concerning the number of mausoleums to be built within the cemetery. If municipalities were divested of that power, certain municipalities might decline to approve the creation of cemetery zones _- a result the Legislature could not have intended.
I add that although a municipality may limit the number of mausoleums to be built in a cemetery, it cannot altogether preclude mausoleums from being built in a cemetery located within its borders. In Cedar Park Cemetery v. Hayes, supra, 132 N.J. Super. at 578, a Paramus ordinance declared mausoleums a prohibited use in the Borough. The court, however, observed that under the Cemetery Act “[c]emetery land is dedicated to all permissible statutory uses once the municipality has exercised its limited discretion and permitted the use within its boundaries.” Id. at 579. Because the construction of mausoleums is a permissible use under the Cemetery Act, the court correctly held that towns cannot bar such structures from being built.
In sum, I conclude that the Legislature did not intend to divest municipalities of the power to regulate the number of mausoleums created within their borders. The prohibition against local “regulation of construction” of mausoleums under N.J.S.A. 8A:3-14.1 was intended to preclude only municipal regulation of the construction of mausoleums, not local limitation on the number of those structures that may be built. The Township's 1995 ordinance creating a cemetery zone with mausoleums as accessory structures therefore is valid.
NO. A-87 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
TRINITY CEMETERY ASSOCIATION,
INC.,
Plaintiff-Respondent,
v.
THE TOWNSHIP OF WALL
(incorrectly designated as
MAYOR AND COUNCIL OF WALL,
MONMOUTH COUNTY, NEW JERSEY),
Defendant-Appellant.
DECIDED November 8, 2001
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINIONS BY Justices Verniero and Zazzali
DISSENTING OPINION BY