Ithaca Adopts A More Natural Approach To Cemetery Maintenance

Keeping with the theme of trying new and creative approaches to cut costs while simultaneously increasing interest in your cemetery, today’s post looks at how the City of Ithaca recently adopted a surprising new plan for mowing the lawns in the city cemetery.  In partnership with a local start-up, the environmentally-friendly Ewe Care Rent-a-Flock, the City will be having a group of six Olde English Southdown babydoll sheep take responsibility for mowing the lawns in the cemetery.

Surprising as it is, this group of six sheep is actually more efficient at maintaining the laws than the usual four-man team, being both faster and cheaper. This reflects a variety of factors, such as that the sheep are better equipped to handle hilly terrain. Another advantage is that the sheep can eat around stones and other monument features that may impede the use of a lawn mower or other machinery without causing damage, a notable benefit for older cemeteries. This frees up human workers for other, more important tasks.

Finally, using the sheep has the potential to provide a significant boost to public relations, in ways that can appeal to multiple groups.  For one, the sheep provide a natural and environmentally friendly way to maintain the lawns, a boon at a time when people are increasingly conscious of the environment.  In addition, the sheep are entertaining to watch, serving as both an attraction for visitors and adding to the aesthetic of the cemetery while they work.  Given that the sheep are also cheaper and more efficient, it seems like the City of Ithaca has stumbled upon quite the idea.

As with our last post, this approach probably would not be viable for most cemeteries, but the point is to again highlight the importance of looking for new and creative ways to cut costs and improve your cemetery’s appeal. 

For more on Ithaca’s plan, and a video of the sheep hard at work, read more here.


Assembly Passes Bill Allowing Cemeteries To Inter Cremated Pet Remains With Owners

According to recent statistics, 62% of all U.S. households own a pet, leading to an increasing demand for cremated pet remains to be interred alongside their owners.  In response, the New York State Assembly and Senate have passed a bill that allows cemeteries to provide such services, and details the requirements for such internments to take place.  Should the bill be signed into law, it will give the option of interring pet cremated remains to all cemeteries that wish to provide the service.

The new bill adds two provisions to the Not-For-Profit Corporation Law.  § 1502(q) defines “pet cremated remains” as “ashes and/or other residue recovered after the completion of cremation of any domestic animal that has been adapted or tamed to live in intimate association with people where such cremation has occurred at a pet crematorium…”  While this encompasses traditional pets like cats, dogs, or even horses, it seemingly excludes more exotic animals like large snakes.

The other new provision is § 1510(n).  This provides that the internment of pet cremated remains may only performed where it is incidental to the burial of human remains, and is limited to internment in a grave, crypt, or niche.  The bill also provides that the internment of pet cremated remains requires written authorization from the cemetery corporation.  Such authorization is discretionary, as the bill does not require cemeteries provide for interring pet cremated remains, and those cemeteries that do are not obligated to allow such approval “absent prior approval at the time of sale or in advance of need.”  However, cemeteries offering this service must provide a list of approved charges for such internments, and all payments must be deposited in the cemetery’s permanent maintenance fund.  Finally, the bill states that these provisions do not apply to cemeteries “operated, supervised or controlled by a religious corporation or a lot, plot or part thereof whose record owner is an incorporated or unincorporated religious association or society.”

The Governor now has until December 31, 2016 to sign the bill. Presumably, industry groups and the Division of Cemeteries will be weighing in during this time.

The full text of the bill reads as follows: 

 AN ACT to amend the not-for-profit corporation law, in relation to regulation of interments in certain cemetery corporations

The People of the State of New York, represented in Senate and  Assembly, do enact as follows:

     1    Section  1.  Section  1502  of  the  not-for-profit corporation law is

     2  amended by adding a new paragraph (q) to read as follows:

     3    (q) The term "pet cremated remains" means ashes and/or  other  residue

     4  recovered  after the completion of cremation of any domestic animal that

     5  has been adapted or tamed to live in intimate  association  with  people

     6  where  such  cremation  has  occurred at a pet crematorium as defined in

     7  section seven hundred fifty-a of the general business law.

     8    § 2. Section 1510 of the not-for-profit corporation law is amended  by

     9  adding a new paragraph (n) to read as follows:

    10    (n)  Interment  of pet cremated remains. The interment of pet cremated

    11  remains in a cemetery corporation shall be available to a lot owner only

    12  in those circumstances where the interment is incidental to  the  burial

    13  of  human remains and where authorization has been provided in a written

    14  statement from the cemetery corporation.  The cemetery corporation shall

    15  provide a list of approved charges for the interment  of  such  remains.

    16  All  payments  received for interment of such remains shall be deposited

    17  in the cemetery corporation's permanent maintenance fund.  Pet  cremated

    18  remains must be disposed of by placing them in a grave, crypt, or niche.

    19  Nothing  in  this section shall obligate a cemetery corporation to allow

    20  interment of such cremated pet remains where prior approval at the  time

    21  of  sale  or in advance of need has not been received. The provisions of

    22  this section shall not apply to an incorporated or unincorporated  ceme-

    23  tery  operated, supervised or controlled by a religious corporation or a

    24  lot, plot or part thereof whose record owner is an incorporated or unin-

    25  corporated religious association or society.

    26    § 3. This act shall take effect immediately.


California Cemetery Experiments With Vineyards To Cut Costs and Bring Visitors

For many cemeteries, the past decade has been a trying time, as a growing shift towards cremation over traditional burial has put cemeteries under increasing pressure financially. However, the Roman Catholic Diocese of Oakland recently came up with an interesting solution to its struggles: planting vinyards.

Wine-making has a long history in California, and the Catholic Church itself played an important role, as Spanish missionaries are credited with bringing grapes and wine-making over from Europe in the 1700s. Yet it has only been in the past decade that the Church has begun adopting wine-making as a solution to its problems, both financial and aesthetic.

Planting grape vines has proven to be a boon at the three cemeteries that have adopted the practice.  The financial cost savings were significant: planting an acre of grape vines cost nearly a third of what it would have costed to plant grass.  It also served to cut the cemeteries water requirements, an important consideration in drought-plagued California. Finally, burial near the vines costs roughly 20% more than similar plots a short walk away, adding another source of revenue. The vines even changed the aesthetic of the cemetery, making it more visitor friendly and drawing local interest.

The grapes offered one more beneficial use: as the cemetery was owned by the Catholic Church, the grapes could be used to make alter wine for Mass and other religious ceremonies.  However, the grapes’ surprisingly high quality has led to the creation of several batches of award-winning wine.  While the wine-making itself is still a money-losing endeavor, the Church is expected to break even this coming year, and continues to donate thousands of bottles of alter wine each year to local churches.

It’s clear that what works for a religious cemetery in California may not translate to a cemetery in New York, but the real takeaway from this story is the importance of creativity.  With a little imagination, there are a wide range of things cemeteries could try.  For example, cemeteries could plant apple trees to provide shade, or use blueberry bushes as a type of screening.  This is not to suggest that such changes would be a panacea for a cemetery’s financial struggles, but it can help brighten a cemetery’s appearance, draw greater interest from visitors, and possibly provide an incidental source of revenue.

The full article about this California cemetery can be found here.


PowerPoint From Mark Cuthbertson's MCA Presentation

On June 2, 2016, Mark Cuthbertson was the guest speaker at the Metropolitan Cemetery Association's Annual Meeting and Exposition. At the event, Mr. Cuthbertson gave a presentation on Selected Legal Topics for Cemeteries. The PowerPoint used in that presentation may be found here.


Court Holds Zoning Amendment Excluding Crematories From Definition of “Cemetery” Was Not Preempted By Not-For-Profit Corporation Law

Oakwood Cemetery (“Oakwood”) is a not-for-profit cemetery that has operated a cemetery in the Village of Mount Kisco (“Village”) since 1883.  In 2008, Oakwood applied for a building permit to build a crematory on the cemetery land.  The application was denied, and Oakwood declined to appeal to the Zoning Board of Appeals.  It filed a new application in February 2011, however the building inspector advised Oakwood that he could not consider its application because the Village's Board of Trustees (“Board”) was considering a proposed amendment to the Village Code that would affect the application. In June 2011, the Board amended the Village zoning code by adding to its “definitions” section that “cemetery” meant “Property used for the interring of the dead. This use shall not include facilities for cremation.”  Oakwood then commenced a hybrid CPLR Article 78/declaratory judgment action claiming the amendment was preempted by Not–For–Profit Corporation Law (“NPCL”) §1502(d), which provides “[a] public mausoleum, crematory or columbarium shall be included within the term ‘cemetery.’” The Supreme Court granted the Village’s pre-answer motion to dismiss, and Oakwood appealed.

On appeal, the Appellate Division, Second Department found that the “although Not–for–Profit Corporation Law Article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries.” The Court also found there was no policy declaration or regulatory scheme evincing any such legislative intent. Accordingly, the NPCL did not preempt any attempt at local regulation of cemeteries under the “doctrine of field preemption.”  The Court further found that the Village’s more restrictive definition of “cemetery” was not invalidated under the “doctrine of conflict preemption.”  The NPCL definition of cemetery was addressed to the management of cemetery corporations and the scope of that law, while the Village Code’s definition addressed land use.  As these different definitions were directed at differing purposes, there was not direct conflict.

The Court concluded its decision by affirming the lower court’s judgment, while amending it to the extent that absent any factual issues, it should have declared that the Village Code amendment was valid and not preempted by NPCL Article 15.

The case was Oakwood Cemetery v. Village/Town of Mount Kisco, 115 A.D.3d 749 (2d Dep’t 2014).


Federal Court Denies Village Summary Judgment on Catholic Diocese’s RLUIPA and First Amendment Claims Over Proposed Cemetery

While the ultimate outcome of the case summarized below remains to be seen, it emphasizes that litigation under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA") can be a powerful weapon for a religious cemetery faced with an obstructionist municipality.  While a municipality maintains the right to adopt reasonable zoning regulations under most circumstances, overstepping its bounds may lead to significant damages and an award of attorney's fees for violating the cemetery's rights under RLUIPA. 

The Roman Catholic Diocese of Rockville Center ("the Diocese") has been in a protracted legal battle with the Village of Old Westbury ("Village") for nearly 20 years over its proposed cemetery. The Village Code did not permit the burial of human remains, so the Diocese applied for a zoning change. The application was denied in 1996 by the Board of Trustees of the Village ("Board") on the grounds it was a commercial operation. After the Diocese successfully litigated that the propsed cemetery was a religious use, the Board enacted a series of comprehensive zoning amendments, including a Places of Worship ("POW") Law.

After repeated delays in the approval process under the POW law, the Diocese filed suit alleging violations of the Constitution and RLUIPA. Several months later, the Board approved the proposal, subject to various restrictions including a requirement that approval was subject to renewal every 5 years, at which time the terms could be altered. The Court ruled on motions for summary judgment on September 3, 2015.

The Court found the POW Law was constitutional in that it validly regulated building area, height, setbacks from property lines, screening, and traffic circulation to mitigate the "adverse impacts of large institutional facilities on the residential nature of the Village." In addition, the law did not treat the plaintiffs differently from other religious institutions.

Next the Court addressed the RLUIPA claims that the POW law (1) created a substantial burden on the property's religious use, and (2) treated the plaintiff on "less than equal terms than a nonreligious assembly or institution." On the first claim, the Diocese argued the conditions were arbitrary and unreasonable, particularly the 5-year renewal provision, which undermined permanent burial. The Court found this claim was viable, but that whether the law was narrowly tailored was a matter for trial, thus denying summary judgment. For the second claim, RLUIPA requires the government to treat religious and non-religious institutions on "equal terms." However, the Second Circuit has ruled that different land use regimes can be legal, as different is not the same as unequal. Here, the court found the Diocese had failed to identify a comparable secular institution that was treated more favorably, and granted the defendants' motion for summary judgment on the equal terms claim. 

The case is cited as The Roman Catholic Diocese of Rockville Centre, New York, v. The Incorporated Village Of Old Westbury, 2015 WL 5178126 (E.D.N.Y.).


Forming an Audit Committee For Your Cemetery

Since the passage of the Not-for-Profit Revitalization Act ("NPRA"), cemeteries have been required to designate an Audit Committee consisting entirely of "Independent Directors" or the Board of Directors (only independent board members may deliberate or vote with respect to audit committee functions) to oversee their accounting and financial reporting practices. Added responsibilities are required of cemeteries with revenues over one million dollars.

While not required by NPRA, it is advisable to have at least one audit committee member with expertise in accounting and finance.

The Audit Committee must undertake the following responsibilities:

(1) retain or renew a CPA to conduct the annual financial audit;

(2) review the completed audit with the CPA; and

(3) review communications with those charged with governance (including a management letter) that result from the audit.

In addition, for cemeteries that have over one million dollars in revenue, the Audit Committee must also:

(1) review the scope and planning of the audit prior to the audit; and

(2) once the audit has been completed:

    (a) discuss with the CPA material risks and weaknesses in internal controls identified by the auditor,  

    (b) assess any restrictions on the scope of the auditor's activity or access to requested information,

    (c) assess any significant disagreements between the auditor and management, and

    (d) assess the adequacy of accounting and financial reporting processes of the organization; and  

(3) annually review the performance and independence of the auditor.

There are multiple additional duties that an audit committee can undertake, which may include, but are not limited to the following:

(a) Review of an organization's internal and financial controls assuring the conduct of appropriate risk assessments and risk response plans;

(b) Identifying and monitoring related party transactions;

(c) Review of conflicts of interests, ethics and whistleblower policies;

(d) Monitor any legal matters that could impact the reputation and financial health of the cemetery;

(e) Institute and oversee any special investigatory work as needed; and

(f) Periodically review the organization's insurance coverage.

A cemetery can adopt an Audit Committee Charter that outlines both the required responsibilities of the Audit Committee and the additional duties the Board of Directors can assign to the Audit Committee. The charter can serve as a road map for the Audit Committee's responsibilities. In addition, the Audit Committee is designated as the body that reviews ethics and related party transactions as well as allegations made under the cemetery's whistleblower policy.


Burying People Who Passed Away Abroad Without Using A Domestic Funeral Home

For most cemeteries, burying a body is a matter of course: the funeral home delivers the body, provides the necessary documentation, and the burial takes place. The procedure may be less clear, however, where the person passed away while abroad and the body was subsequently repatriated without using a domestic funeral home.  

When an American passes away abroad, a consular official from the US Department of State will arrange for the documentation necessary to facilitate shipment and U.S. Customs clearance for the body. These documents include the foreign death certificate (if available), an affidavit from the foreign funeral director, a transit permit, and a consular mortuary certificate, all of which will accompany the remains back to the United States. In addition, the consular mortuary certificate will generally satisfy U.S. public health requirements where the body has already been embalmed.  

So what does this mean for a cemetery burying a body shipped by this method? Under New York Public Health Law (“NY PHL”) §4145(1), “internments, cremations or other dispositions” of a body are only permitted when the body is accompanied by a “burial, cremation, or transit permit.” However, NY PHL §4144(4) provides that “When the body of a deceased person is transported from outside of the state… for burial or other disposition, the transit or removal permit issued in accordance with the law and health regulations of the place where the death occurred shall be given the same force and effect as the burial permit herein provided for.” Thus even if the body is transported directly from the airport by a family member, the necessary documentation should still be accompanying the body. Records of the permit should be kept in the same manner as those provided by a funeral home.


Catholic Diocese’s RLUIPA and First Amendment Claims Over Proposed Cemetery Allowed to Proceed: Part 8, Remaining Claims and Final Rulings

This is the eighth and final post in our series looking at the long-running dispute between the Roman Catholic Diocese of Rockville Center and the Village of Old Westbury over the Diocese’s proposed cemetery. Today’s post focuses on the remaining claims and the Court’s final rulings.  

In addition to the issues discussed in the previous posts, there were also motions for summary judgment on several more minor claims for the Court to dispose of. First, the Diocese’s Equal Protection claim was dismissed on the grounds that the Diocese failed to show sufficient evidence upon which a jury could find the POW Law was motivated by anti-religious intent, as a showing of purposeful discrimination by the Defendants is required. The Court did find, however, that the evidence cited may still be relevant to the RLUIPA claims. In addition, the Dioceses Fourth Amendment claim for warrantless search was allowed to proceed as the parties disputed whether the official had ever entered the premises to conduct an inspection. Finally, the Court found that the assertions of absolute and qualified immunity were not ripe for determination given the outstanding issues of material fact preventing a finding regarding the reasonableness of the Defendant officials’ actions.

In summary, the Claims which were allowed to proceed to trial were the: (1) RLUIPA substantial burden claim, (2) as-applied constitutional challenge to the POW Law, (3) First Amendment free exercise of religion claim, (4) Section 1983 retaliation claim, and (5) Section 1983 unlawful search claim.

The case is The Roman Catholic Diocese of Rockville Centre, New York, v. The Incorporated Village Of Old Westbury, 2015 WL 5178126 (E.D.N.Y.)


Catholic Diocese’s RLUIPA and First Amendment Claims Over Proposed Cemetery Allowed to Proceed: Part 7, §1983 Retaliation Claim

This is the seventh post in our series looking at the long-running dispute between the Roman Catholic Diocese of Rockville Center and the Village of Old Westbury over the Diocese’s proposed cemetery. Today’s post focuses on the retaliation claim brought under §1983. 

After the RLUIPA claims, third issue the Court addressed was the Diocese’s claim that the defendants conduct since 2003 was taken is retaliation for the Diocese’s state lawsuit and the current §1983 action. Specifically, the Diocese alleged that the Village had intentionally delayed the permit applications and SEQRA process and attempted to increase the Diocese’s costs through unreasonable demands to conduct various studies and testing. Though the parties contest the sufficiency and weight of the evidence, the Court found there was testimony in the depositions that did in fact suggest a link between the lawsuit and application process. Ultimately, the Court found that given “the temporal nexus of seven months, coupled with the surrounding circumstances, e.g., the length and expense of the QOP permitting process and the extensive restrictions in the Resolution, which seemingly go beyond the POW Law's requirements and are arguably gratuitous,” the evidence could support a finding of retaliation. The Court thus dismissed the Defendants motion for summary judgment on the retaliation claim. The Court also notes an as-applied challenge similarly survives due to the questions of material fact regarding actual animus.

The next post in this series will look at the remaining motions for summary judgment and final rulings.

The case is The Roman Catholic Diocese of Rockville Centre, New York, v. The Incorporated Village Of Old Westbury, 2015 WL 5178126 (E.D.N.Y.)



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