By Mark Rosman
Staff Writer
MANALAPAN – Acting on the advice of their attorney, members of the Manalapan Planning Board determined they did not have jurisdiction to hear an application submitted by the Old Tennent Cemetery Association which proposed the establishment of a crematorium on the grounds of the Old Tennent Cemetery, Tennent Road.
The board’s July 28 meeting saw residents fill the meeting room at the municipal building in anticipation of hearing testimony concerning the association’s plan to construct a 1,300-square-foot addition on an existing office building on the cemetery grounds and to install two retorts (furnaces) that would conduct up to 600 cremations per year.
But before testimony from the applicant’s representatives began, several actions occurred that changed the face of the scheduled public hearing.
First, board member Kevin Uniglicht, who is a Republican candidate for a seat on the Township Committee, recused himself from hearing the crematorium case because he has taken a public stand against the establishment of the business.
Then, the board’s attorney, Ron Cucchiaro, said Deputy Mayor Susan Cohen and Township Committeeman Jack McNaboe, both of whom serve on the board, would not sit for the case because the Township Committee, in a press release issued in June, said it was opposed to the crematorium application.
“My fear, looking at cases under the Municipal Land Use Law, is that I think there would be some perception that (Cohen and McNaboe) have come to the table with their decision made,” Cucchiaro said. “But for that, they would be up here representing their constituents.”
Those actions left Kathryn Kwaak, Rick Hogan, Barry Jacobson, Alan Ginsberg, Daria D’Agostino and John Castronovo as seated board members to hear the application.
At that time, attorney Steven P. Gouin entered an appearance on behalf of a corporation known as Stop the Manalapan Crematorium Inc. Gouin said the corporation’s Board of Trustees consists of current and former Manalapan residents.
Attorney Edward Liston, who represents the cemetery association, argued that the corporation did not have standing to object to the application.
Cucchiaro said New Jersey has liberal standing statutes and defines standing “as somebody whose property interest is going to be affected” by an application. On his recommendation, the board made a motion and voted 6-0 that Stop the Manalapan Crematorium had standing to object to the application.
Gouin argued that the Planning Board should not hear the application because, in his view, the application requires a “D” variance that can only be granted by a zoning board of adjustment. He argued that the addition of an accessory use (the crematorium) represents an expansion of a non-conforming use (the cemetery in a residential environmental zone).
In his response, Liston noted that Old Tennent Cemetery is more than 300 years old and predates Manalapan’s zoning ordinance and the United States itself. He argued that including a crematorium on the property would not be an expansion of the cemetery. Liston cited the New Jersey Cemetery Act which he said considers a crematorium to be closely aligned with and incidental to a cemetery use.
Gouin and Liston cited case law in support of their arguments, with Liston stating that “Old Tennent is entitled to continue its use and to have an accessory use (the crematorium) without a variance.”
He said if the Planning Board determined it did not have jurisdiction to hear the application, the matter would be appealed in court.
Liston said the crematorium application has taken on more interest in the community and among municipal officials than many cases that come before the board when he said, “There is a political patina to this case when (the Township Committee issues a press release) saying, ‘we don’t want you (the board) to approve this.’ I am asking this board to follow the law in a hostile political environment. We are entitled to be heard by this board.”
Citing the alleged political aspect of the case, Liston cited Bob Dylan when he quoted a line from “Subterranean Homesick Blues” in which the singer said, “You don’t need a weatherman to know which way the wind blows.”
Following the arguments by the attorneys, Cucchiaro reviewed relevant case law and discussed the issue. In conclusion, he said he believed the proposed addition to the office building to accommodate the retorts would be an enlargement of the cemetery and he said the enlargement of the cemetery would require approval from the Township Committee in accordance with the New Jersey Cemetery Act.
And, Cucchiaro said he believed the proposed addition to the office building on the cemetery grounds would be an expansion of a non-conforming use that would require a variance that only the zoning board may grant.
“The applicant may go to the zoning board or ask for a zoning interpretation and if the stars align, this board may well have jurisdiction,” Cucchiaro said.
Following Cucchiaro’s remarks, a motion was made which stated that the board lacked jurisdiction to hear the application for the crematorium at this time. Kwaak, Hogan, Jacobson, Ginsberg, D’Agostino and Castronovo voted yes on the motion, which concluded the matter that evening and led to applause from the assembled residents.
In the matter of their recusal from hearing the application, Cohen said she was not happy to have to recuse herself, but she said she did not want to sit for the application and risk a problem on appeal if the case eventually reached court, and McNaboe said his recusal marked the first time in nine years that he stepped down from hearing an application. He said he deferred to the board’s legal counsel on the matter.