S3510

An Act concerning municipal consent to establish or enlarge a cemetery and amending P.L.2003, c.261.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 25 of P.L.2003, c.261 (C.45:27-25) is amended to read as follows:

25. a. A cemetery shall not be established or enlarged in any municipality without first obtaining the consent of the municipality by resolution. Municipal consent shall not be granted unless the following criteria have been met:

(1) The proposed cemetery or proposed enlargement is located in a zoning district where a cemetery is a permitted use.

[b.] (2) No more than five cemeteries may be established in any one municipality, and not more than 3% of the area of any municipality shall be devoted to cemetery purposes.

[c.] A cemetery shall not be established or expanded to exceed 250 acres at any one location.

[d.] b. The governing body of a municipality, by resolution, may waive the limitations of subsection [b. or c.] a. of this section if it finds that there is a demonstrated public need for additional cemetery lands in the immediate region, and that [it is in the public interest to waive them.] waiving the limitations of subsection a. of this section would not result in a substantial detriment to the public health, safety, and welfare, based on the developer’s presentation of clear and convincing evidence that:

(1) an inventory of all available cemetery interment spaces relative to the projected demand for interment spaces in the immediate region over the next 20 years indicates a public need for additional cemetery land within the immediate region; or

(2) there is a specific, unique, and acute need for interment spaces within the immediate region that is not being met.

As used in this subsection, “immediate region” means: the area within the physical boundaries of the county within which the municipality is located; and the area within the physical boundaries of each municipality that is contiguous to the municipality but located within another county.

[e.] c. A cemetery company shall not dedicate additional land to cemetery purposes without board approval.

(cf: P.L.2003, c.261, s.25)

2. This act shall take effect immediately and shall be retroactive so to apply to any application for establishment or enlargement of a cemetery unless a construction permit was issued for the project pursuant to section 13 of P.L.1975, c.217 (C.52:27D-131) prior to January 1, 2021.

STATEMENT

This bill would clarify the scope of municipal authority to consent to the establishment or enlargement of a cemetery. A recent court decision held that N.J.S.A.45:27-25 is unconstitutionally vague. This bill addresses the court’s perceived unconstitutionality of N.J.S.A.45:27-25 by clarifying the bounds of a municipality’s discretion to consent to establish or enlarge a cemetery.

By enacting the "New Jersey Cemetery Act, 2003," P.L.2003, c.261 (C.45:27-1 et seq.), the Legislature intended that a municipality must consent to the proposed establishment or enlargement of a cemetery if the cemetery would satisfy the criteria set forth in N.J.S.A.45:27-25. Recently, N.J.S.A.45:27-25 was interpreted in a manner that did not recognize that a municipality’s power to consent to the establishment or enlargement of a cemetery is tied to the criteria set forth in the statute. In order to allow this enactment to remedy the court’s misinterpretation of this section of law, the bill would take effect retroactively so to apply to any proposed cemetery that had not been issued a construction permit prior to January 1, 2021.

Under the bill, a municipality may not consent to the proposed establishment or enlargement of a cemetery unless:

· the proposed cemetery or proposed enlargement is located in a zoning district where a cemetery is a permitted use;

· no more than five cemeteries have been established in the municipality, and not more than 3 percent of the area of the municipality are devoted to cemetery purposes; and

· the cemetery would not be established or expanded to exceed 250 acres at any one location.

Additionally, the bill would clarify the waiver provisions contained in current law to allow the governing body of a municipality, by resolution, to waive the statutory limitations of this section if the governing body finds:

· that there is a demonstrated public need for additional cemetery lands in the immediate region, and

· that waiving the statutory limitations would not result in a substantial detriment to the public health, safety, and welfare, based on the developer’s presentation of clear and convincing evidence that:

o an inventory of all available cemetery interment spaces relative to the projected demand for interment spaces in the immediate region over the next 20 years indicates a public need for additional cemetery land within the immediate region; or

o there is a specific, unique, and acute need for interment spaces within the immediate region that is not being met.

The bill defines the term “immediate region” to mean the area within the physical boundaries of the county within which the municipality is located; and the area within the physical boundaries of each municipality that is contiguous to the municipality but located within another county.