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Preemption Isn’t Always the Answer: The Superior Court of New Jersey, Camden County Law Division highlights the necessary harmony between State legislation and municipal land use ordinances

On November 20, 2019, the Superior Court of New Jersey, Camden County Law Division, issued an opinion in the matter captioned Lakeview Memorial Park Association v. Burlington County Construction Board of Appeals, et al., Docket No. L-003629-19. In this matter, plaintiff filed a complaint in lieu of prerogative writs pursuant to Rule 4:69-1 and sought approval for its proposed mausoleum expansion project pursuant to N.J.S.A. 45:27-27 of the New Jersey Cemetery Act, N.J.S.A. 45:27-1 to -41. Plaintiff contended that the Act preempts the Township’s zoning ordinance and that pursuing any administrative remedies would have been futile.

Plaintiff sought to build a third public mausoleum on its property and to do so, plaintiff first obtained approval from the State Department of Community Affairs (“DCA”) in accordance with N.J.S.A. 45:27-27(b). It is worth noting that plaintiff had received Planning Board approval for the other two mausoleums which were previously constructed on its property. In this instance, plaintiff operated on the belief that the proposed mausoleum construction was exempt from the Planning Board’s approval since the proposed plans met the relevant height and setback requirements set forth in the Township’s zoning ordinance.

In reference to plaintiff’s approvals from the DCA, the Court here noted that the DCA never reviewed site plans for approval of potential hazards posed by the mausoleum project, as is required by N.J.S.A. 45:27-27(b). After the DCA approval, plaintiffs then submitted for a building permit with the Township which was denied because the application failed to include a pre-approval from the zoning officer pursuant to Township Code. When plaintiff did not receive a response to its incomplete building permit application, it filed an appeal with the Construction Board of Appeals (“CBA”).

Defendants sought to have the Complaint dismissed based on the contention that (1) plaintiff did not exhaust required administrative remedies because it never submitted an application to the zoning officer for a zoning permit before seeking a building permit from the construction official; (2) the Cemetery Act did not preempt the municipality’s review and approval of the site plans; (3) the Construction Board of Appeals lacked jurisdiction over plaintiff’s matter because plaintiff failed to file submit a complete application to the construction official, and (4) that plaintiff had failed to exhaust its administrative remedies when it failed to appeal the zoning officer’s decision to the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70(a).

The Court explained that in accordance with the Municipal Land Use Law, the Township enacted Section 525-137 of its Code which requires the submission of a “proper application” to the zoning officer to make a determination whether the proposed project complies with the provisions of the Township Code and the MLUL pursuant to N.J.S.A. 40:55D-18. The Court was further unpersuaded by any arguments about futility of utilizing administrative procedures because it is clear that the ordinance calls for the zoning officer’s administrative, not legal, expertise and discretion in evaluating zoning permit applications. Accordingly, the Court held that plaintiff failed to comply with the procedures to obtain a building permit and therefore failed to exhaust administrative remedies available.

The Court then looked to whether the Cemetery Act precludes the Township from passing local ordinances regulating the permitting process. The first section of the Cemetery Act, clearly states that “a public mausoleum shall not be constructed without obtaining a permit from the construction official of the municipality in which it is to be constructed.” N.J.S.A. 45:27-27(a). Subsection (c) of the same statute requires that the construction official supervise the actual construction. Furthermore, subsection (b), the DCA retains the authority to approve the “detailed plans and specifications of the structure” and to only do so once the DCA “is satisfied that the proposed structure can be operated without constituting a hazard to public health or safety.” Lastly the Court observed that subsection (e) ensures that municipalities will not enforce their own construction codes for mausoleums, other than reasonable height and setback requirements. The statute at issue in this instance granted approval authority to the DCA for approvals relating to public health and safety, while the municipality retain oversight authority through the permit approval and supervision of the project.

The Court, understandably, took great care to examine the legislative intent behind the Cemetery Act and the MLUL, as well as the interplay between the two statutes; as they both undoubtedly apply in this instance. The primary purpose of the Cemetery Act’s 1979 amendment was to transfer the power over mausoleum construction from the DEP to the DCA. See Sponsor’s Statement to A.1491 4 (L. 1979, c. 255). The provisions in the Cemetery Act “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.” Trinity Cemetery Association v. Township of Wall, 170 N.J. 39, 57 (2001) (Zazzali, J., concurring). The MLUL, on the other hand, was enacted in 1975 “[t]o encourage municipal action to guide the appropriate use or development of all lands in this State.” N.J.S.A. 40:55D-2(a). Therefore, the Legislature explicitly intended for municipalities to regulate zoning and land development, which includes granting zoning permits.

The Court importantly notes that a plain reading of the two statutes in this instance, shows that the Cemetery Act simply provides an additional form of regulation, specifically that the cemetery must obtain approval from the DCA, in addition to obtaining the municipality’s approval to develop and the land as intended. N.J.S.A. 45:27-27(a). Simply put, the DCA’s purview is over how the project should be constructed, while the zoning officer and other municipal authorities have the duty of assessing how the project will affect the surrounding area and the use of the land.

Additionally, it is the DCA that is responsible for oversight of the construction plans, as well as the continued maintenance of the mausoleum. See N.J.S.A. 45:27-27(e); see also N.J.A.C. 5:23-1.3. The Bureau of Construction Projects Review, the planning review portion of the DCA, even informed Defendants’ counsel in this instance that they reviewed the site plans pursuant to N.J.A.C. 5:23-2.15(f)1)(i), however, they were not responsible for any site plan approval; thereby necessitating the municipality’s oversight for those approvals.

Ultimately, the Court summarized its ruling by stating that the Cemetery Act does not prevent the Township, or any township for that matter, from enacting regulations pursuant to the MLUL regarding permitting process for ancillary issues implicated or associated with mausoleum construction, and therefore, the plaintiff was required to follow those procedures. While this case addresses a narrow issue and area of law pertaining to mausoleum permitting and construction, the bigger take-away from this case is understating the necessary harmony between State legislation and local municipal ordinances and codes.

State legislation generally does not exist to preempt municipal ordinances and codes. Rather they are generally intended to supplement municipal laws and to provide support for areas that municipalities may not have the capacity to regulate or supervise. Therefore, in the event that you or your clients feel that you may be exempt from a local municipal requirement because of State legislation, be sure to carefully review the competing (more likely complementary) legislation to ensure that you are not required to comply at both the State and local level.

*Michael E. Camastra is an attorney with the Princeton law firm of Lieberman Blecher & Sinkevich, P.C. The firm practices environmental law, commercial real estate law and land use.

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