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Manalapan Cemetery’s Application for Crematorium Accessory Use Requires Zoning Board Approval, Appellate Division Holds

Even though a crematorium performs a similar function to a traditional cemetery, a pre-existing nonconforming cemetery cannot add one to its grounds, extending its nonconformity, without Zoning Board approval.

In Old Tennent Cemetery Association v. Township of Manalapan Planning Board, Docket No. A-2961-19 (App. Div. Oct. 20, 2021), Old Tennent Cemetery Association appealed the dismissal of its action in lieu of prerogative writs against the Manalapan Planning Board, arguing that the Planning Board should not have declined jurisdiction in favor of the Zoning Board when Old Tennent applied for site plan approval to add a crematorium to its property in 2016.

No ordinance permits crematoria in Manalapan, but Old Tennent argued that their crematorium would take up only 1/400th of their 300-year-old cemetery, and that it was an accessory use to a cemetery since they perform similar functions. The Planning Board disagreed and rejected the application, concluding that the Zoning Board had exclusive jurisdiction to determine whether the cemetery was a pre-existing nonconformity.

In February 2020, a judge dismissed Old Tennent’s action in lieu of prerogative writ, agreeing that the crematorium was an accessory use to a pre-existing nonconforming use and therefore subject to the exclusion jurisdiction of the Zoning Board.

Assuming that the cemetery was a pre-existing nonconformity, the Appellate Division upheld the dismissal. Although a crematorium serves a similar purpose to a cemetery, it is still a use which is both accessory to a nonconforming principal use and unpermitted by ordinance, so the Zoning Board enjoyed exclusive jurisdiction.

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