Crematorium wants to expand, but appears to have been illegally present (possibly) for years

Surely you may assume that if you have operated a business for many years, that business is permitted under the zoning plan. That is certainly not always the case, as is once again well illustrated by a ruling by the Administrative Law Division of the Council of State on August 15, 2018 (ECLI:NL:RVS:2018:2704).

What was going on?

In this case, funeral home operator Dela applied for an environmental permit to remodel and expand a crematorium complex in Leiden. Dela is the operator of the crematorium.

Dela's building plan includes a second furnace for the crematorium, a funeral center with reception areas, visiting rooms and a mourning center, a second auditorium, a second condolence room and a larger kitchen for the catering facility. This will increase the gross floor area of the crematorium complex from 1,391 m² to approximately 2,295 m².

One of the parties opposing this permit is the Rust op Rhijnhof Foundation. This foundation fears that the peace of the adjacent cemetery will be disturbed as a result of the granted environmental permit.

Does the zoning ordinance prohibit a funeral home and crematorium?

In these proceedings, the Foundation argues, among other things, that the funeral home and crematorium would violate the zoning plan. The college and court previously ruled that there was no conflict with the zoning plan, but the Division ruled otherwise.

In doing so, the Division minutely examines which use is permitted under the zoning plan. The zoning plan specifies that these lands are zoned (among other things) for 'social'. By 'social' the zoning plan means:

"(para)medical, socio-cultural, philosophical, religious, educational, sports and recreational facilities, (semi-)governmental institutions, healthcare facilities and association life."

The question is whether this definition includes a (new to be established) funeral home and an (expansion of an already existing) crematorium.

Funeral home allowed, but crematorium not and thus illegal (possibly for years)

The Division rules that a funeral home is permitted under the zoning ordinance, citing a number of previous rulings. A funeral home serves to pay last respects to and bid farewell to a deceased person. This is accompanied by religious experience or human reflection. A funeral home thus has a special function that has significant interfaces with socio-cultural and religious facilities. That function is permitted under the zoning plan.

However, this does not apply to the crematorium. The Division does not follow the Board in its contention that cremation is an essential part of a philosophically, religiously and socio-culturally inspired farewell ritual. Indeed, that contention amounts to saying that the activities of a crematorium are an essential part of those of a funeral home. However, the Division states that activities of a different nature take place in the funeral home and crematorium. The fact that the activities in a funeral home are mostly followed by those in a crematorium or in a cemetery does not make a crematorium as such qualify as a socio-cultural or religious facility.

The Division thus concludes that the planning regulations, contrary to what the District Court followed the Board in assuming, leave no room for an interpretation other than that a crematorium is not allowed on the parcel. The fact that the planning legislator may never have intended to make a crematorium on the site impossible cannot alter this, according to the Division.

The college must now assess - with regard to the crematorium - whether it wishes to grant a permit to deviate from the zoning plan. This therefore also applies to the already existing part of the crematorium, leaving aside for a moment whether the transitional law may still offer outcomes or the possibility that an implicit deviation was previously granted.

Lesson: always check that your use is properly authorized

Thus, while Dela will undoubtedly have assumed in this case that it was operating a "legal" crematorium, that may not necessarily have been the case.

The lesson that follows from this ruling is that it is very important to always keenly examine whether your business operations are properly translated into the zoning plan. Prevention is better than cure. Of course, no one wants a discussion afterwards about whether your business operations may be illegal.

Quickscan zoning plan

Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.