Rosedale & Rosehill Cemetery Ass'n v. Twp. of Reading, Civil Action No.:19-16428 (FLW)

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtWOLFSON, Chief Judge
Citation510 F.Supp.3d 250
Parties ROSEDALE AND ROSEHILL CEMETERY ASSOCIATION, Plaintiff, v. TOWNSHIP OF READING, et al., Defendants, State of New Jersey, Intervenor.
Docket NumberCivil Action No.:19-16428 (FLW)
Decision Date30 December 2020

510 F.Supp.3d 250

TOWNSHIP OF READING, et al., Defendants,

State of New Jersey, Intervenor.

Civil Action No.:19-16428 (FLW)

United States District Court, D. New Jersey.

Signed December 30, 2020

510 F.Supp.3d 254

Megan Knowlton Balne, Richard Milan Hluchan, Hyland Levine LLP, Marlton, NJ, Robert Richard Stanicki, Mackevich, Burke & Stanicki, Clark, NJ, for Plaintiff.

Richard P. Cushing, Gebhardt & Kiefer, PC, Clinton, NJ, for Defendants.

Wendy Leggett Faulk, Office of the Attorney General State of New Jersey, Newark, NJ, for Intervenor.

Gurbir S. Grewal, Trenton, NJ, pro se.

WOLFSON, Chief Judge:

510 F.Supp.3d 255

This matter concerns the constitutionality of the New Jersey Cemetery Act ("the Cemetery Act"), which, inter alia , empowers municipalities to consent to new cemeteries within their borders. See N.J.S.A. § 45:27-25, et seq. Rosedale and Rosehill Cemetery Association ("Plaintiff" or "Rosedale"), a non-profit cemetery company, applied to the Township of Readington and its Township Committee (collectively, "Defendants" or "the Township") to open a cemetery. After extensive negotiations with the Planning Board, and four days of hearings over the course of a year, the Township denied Rosedale's application pursuant to its authority under N.J.S.A. § 45:27-25(a).

Presently before the Court are the parties’ Motions for Partial Summary Judgment on Counts Three through Five. Rosedale contends that two provisions of the Cemetery Act, N.J.S.A. § 45:27-25(a) and N.J.S.A. § 45:27-25(d), violate the Due Process Clause, see U.S. CONST. AMEND . XIV, because they give the Township unfettered discretion to establish cemeteries. In its cross-motion, the Township contends that these provisions are a permissible delegation of state legislative power and that it properly denied Rosedale's application. The State of New Jersey has intervened to defend the constitutionality of the Cemetery Act on similar grounds as the Township. For the following reasons, I GRANT Rosedale's partial summary judgment motion and DENY the Township's cross-motion as follows: subsection (a) of N.J.S.A. § 45:27-25 of the Cemetery Act is unconstitutionally vague under the Due Process Clause of Fourteenth Amendment, and because subsection (a) cannot be severed from the rest of the provisions of § 45:27-25 (b)-(d), the entire N.J.S.A. § 45:27-25 is declared unconstitutional. However, this Order shall be stayed for a period of 30 days before taking effect, to provide the New Jersey Legislature an opportunity to amend the statute.


Rosedale has operated a large cemetery in Linden, New Jersey, for over a century. See Pl. Br., Ex. 5 (Hearing Transcript), at 9:6-12; Pl. SUMF, ¶ 4. Anticipating that it would soon run out of interment space, Rosedale sought to open a new cemetery nearby. See Pl. SUMF, ¶ 5. After a lengthy search for a suitable location, it contracted to purchase 180 acres in Readington Township in 2015 ("Block 12"). Id. ¶¶ 6-7. Among other factors, Block 12 was already zoned for cemetery use. Id. ¶¶ 12-13. Beginning on February 9, 2017, Rosedale dedicated several months to negotiating a site application with the Township's Planning Board. Id. ¶¶ 8, 10-13. Despite Rosedale's investment of time and resources

510 F.Supp.3d 256

in this process,1 and despite seemingly having no obligation to wait, on September 17, 2017, the Board declined to hear Rosedale's final plan until the Township consented to the cemetery. Id. ¶ 13; Pl. Br., Ex. 9 (Letter from Planning Board Secretary). Rosedale submitted a request for consent on February 20, 2018, see Pl. SUMF, ¶ 14, and the Township held public hearings on May 21, 2018, September 17, 2018, October 15, 2018, and May 6, 2019. Id. ¶ 15; Pl. Br., Exs. 3-6 (Hearing Transcripts).

A. The Hearings

During the hearings, Rosedale primarily contested the constitutionality of N.J.S.A. §§ 45:27-25(a) and (d). See Pl. Br., Ex. 3 (Hearing Transcript), at 9:24-13:23; Ex. 6 (Hearing Transcript), at 87:16-88:19. The statute provides in full:

a. A cemetery shall not be established or enlarged in any municipality without first obtaining the consent of the municipality by resolution.

b. 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. The governing body of a municipality, by resolution, may waive the limitations of subsection b. or c. of this section if it finds that there is a public need for additional cemetery lands and that it is in the public interest to waive them.

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

N.J.S.A. § 45:27-25. Specifically, Rosedale argued that subsection (a), the consent provision, is unconstitutional because it fails to "specify[ ] any standards for such consent," Pl. Br., at 7, and that subsection (d), the waiver provision, likewise lacks a "sufficiently definite standard." Id.

Further, Rosedale argued that it did not need a waiver under subsection (d) because, based on its narrow reading of the Cemetery Act, there are not five cemeteries in the Township—and even if it did need a waiver, "there was a local and regional public need for an additional cemetery." See Pl. SUMF, ¶¶ 17-18, 21, 23. Rosedale presented expert testimony to this end, which showed that two cemeteries in the Township conduced just "one burial per month" even though "approximately 109 residents" died annually, see Pl. Br., Ex. 5 (Hearing Transcript), at 40:25-41:19; Ex. 15 (Newell Cemetery Report); Ex. 16 (Rural Hills Cemetery Report), no new cemeteries had opened in the region in decades, id. , Ex. 5 (Hearing Transcript), at 31:16-19, and its proposed cemetery was "designed to serve a wide range of interment-related needs, including burial in a memorial park, indoor and outdoor niches, indoor crypts, mausoleums, a veterans area, a scattering garden, and green burial options."2 Id. ; Ex. 10 (Site Plan).

Rosedale also made extensive concessions to the Township over the course of the hearings. See id. , Ex. 3 (Hearing Transcript),

510 F.Supp.3d 257

at 22:13-23, 35:2-22. For example, Rosedale agreed to limit the size of the burial area to 38 acres in perpetuity; establish a designated burial area for veterans, the only one within 50 miles; screen all upright headstones from public view with buffers and setbacks; provide 73 acres to the Township for public space; implement a grass-mowing program to protect bird habitats; not to use herbicides, pesticides, or fertilizers in its operation; not to build a crematorium; and restore rather than raze preexisting buildings to preserve the agricultural character of the property. Id. , Ex. 3 (Hearing Transcript), at 20:19-20, 37:8-14, 56:2-23; Ex. 5 (Hearing Transcript), at 38:22-39:2; Ex. 10 (Site Plan); Ex. 14 (Letter Requesting Consent). In all, Rosedale estimated that it would perform three to four burials per day on Block 12 and 50,000 over the lifetime of the cemetery. See Pl. Br., Ex. 5 (Hearing Transcript), at 26:14-16, 65:22-66:18.

B. The Township's Decision

On May 6, 2019, in its final hearing, the Township denied Rosedale's application. One Commissioner suggested that "if this were an application from a church ... [it] would be a different story," see Pl. SUMF, ¶ 27; Pl. Br., Ex. 6 (Hearing Transcript), at 119:18-21, a sentiment with which the Mayor, who sits on the Committee, seemed to agree. Id. ¶ 28; Pl. Br., Ex. 6 (Hearing Transcript), at 120:16-22, 121:16-24. Others indicated a preference for farmland and a desire to avoid "ever-increasing traffic," raised concerns about "commercial business enterprise[s]" such as Rosedale even though Rosedale is a non-profit, yet objected to recouping "no tax benefit" at the same time, and argued that a cemetery is an inappropriate land use despite the fact that the Township's zoning ordinance allowed such a use at the time. See, e.g. , SUMF, ¶ 27; Ex. 6 (Hearing Transcript), at 119:3-25, 120:7-8, 121:13-15, 122:8-14, 122:21-23. In a subsequent Resolution—adopted on September 4, 2019, after Rosedale filed suit in state court—the Township asserted that N.J.S.A. §§ 45:27-25(a) and (d) are constitutional on their face and as applied to Rosedale, there are twenty-one cemeteries in Readington because the Cemetery Act broadly defines "cemetery," thus triggering subsection (d), and Rosedale is not entitled to a waiver because it "failed to demonstrate that ... [another] cemetery would satisfy a public need or be in the public interest." See Def. Br., Ex. 7A (Resolution Denying Rosedale's Application). The Resolution ultimately denied "Plaintiff's request for consent to establish a cemetery within its borders pursuant to N.J.S.A. 45:27-25(a) and [ ] Plaintiff's request for a waiver pursuant to N.J.S.A. 45:27-25(d)." See id. ; Def. SUMF, ¶ 12.

C. The Parties’ Present Dispute

Rosedale sued the Township in the Superior Court of New...

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