Catholic Diocese’s RLUIPA and First Amendment Claims Over Proposed Cemetery Allowed to Proceed: Part 5, Substantial Burden Claim Under RLUIPA and Free Exercise

This is the fifth 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 substantial burden claim brought under RLUIPA.

The second issue the Court addressed was the RLUIPA claims, the first of which was a substantial burden claim. Regarding substantial burden claims, RLUIPA uses a burden shifting standard whereby the plaintiff must show prima facie that the challenged rule creates a substantial burden on the exercise of its religious beliefs, and if it does so, the defendant must show a compelling government interest and that the law is narrowly tailored. Here, the Diocese argued that even absent outright denial, the conditions attached were an arbitrary and unreasonable burden. For example, the 5-year renewal provision means that the term of burials cannot be guaranteed as permanent, a basic requirement of a cemetery. Moreover, revocation of a special exemption permit would not be appealable. The Court found that this met the prima facie requirements for a RLUIPA claim but that there existed a genuine issue of material fact as to whether the means were narrowly tailored.

Furthermore, as RLUIPA mirrors the First Amendment in application, these same questions of material fact were found to apply to the Free Exercise claim under the First Amendment as well. Thus the Court denied summary judgment on both the RLUIPA substantial burden and Free Exercise claims.

The next post in this series will look at the Diocese’s equal terms claim under RLUIPA.

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 4, Facial Constitutionality of the POW Law

This is the fourth 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 whether the Places of Worship (POW) Law is facially constitutional.

The first issue the Court addressed was whether the POW Law was facially constitutional. The Diocese argued that there was discriminatory intent because the POW Law was enacted only three months after its victory in the state court on whether the proposed cemetery was a religious use. Even so, the court found that the evidence shows the amendment process began well before the state court’s ruling. In addition, the POW Law validly regulates building area, height, setbacks from property lines, screening, and traffic circulation in an effort to mitigate the “adverse impacts of large institutional facilities on the residential nature of the Village.” Since the law does not treat the plaintiffs any differently than other non-secular institutions, the POW Law was found to be both facially neutral and generally applicable, and thus it need only satisfy rational basis review rather than strict scrutiny. Given the facts above, the Court found this standard was met and granted the Defendants’ cross-motion for summary judgment on the issue.

The next post in this series will look at the Diocese’s substantial burden claim under RLUIPA.

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 3, Federal Litigation and Initial Motions

This is the third 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 commencement of federal litigation and the initial motions following several years of permitting and environmental reviews of the Diocese’s proposed cemetery.

On November 30, 2009, the Diocese commenced an action in the District Court for the Eastern District of New York against the Village, Board, and Consultants (“Defendants”) asserting violations under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA"), the United States Constitution, and 42 U.S.C. §§ 1983, 1985 and 1986 in the application by the Defendants of SEQRA and the POW law to the Diocese’s proposal.

Less than a year after the commencement of the lawsuit, in June of 2010, the Board approved the proposed cemetery. This approval was subject to a multitude of restrictions and conditions, however, the most onerous of which was a mandate that the Diocese receive renewal of the authorization every five years, during which time the conditions could be modified or the authorization revoked entirely. Due to the conflict over these conditions, to date ground has not been broken on the cemetery.

The federal suit began with 16 months of motions. These led to the dismissal of all claims based upon actions taken before or during the state court proceedings, the Diocese amending its complaint and filing a supplemental complaint, and the defendants submitting their amended answer. There was also a limited amount of discovery. This brings us to the Court’s most recent ruling on the respective parties’ motions and cross-motions for summary judgment, issued September 3, 2015.

The next post in this series will look at the first issue, the facial constitutionality of the POW Law.

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 2, Permitting, SEQRA, and the POW Law

This is the second 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 permitting and SEQRA applications following the state court ruling finding the proposed cemetery was a religious use.

The Diocese’s subdivision application and SEQRA, Part I EAF was submitted on July 2, 2004, with the Board serving as lead agency. In July 2005, the Board filed a positive declaration, indicating the proposed action “may have a significant adverse impact on the environment and that an environmental impact statement will be required.” The Diocese submitted a Draft Scope in February 2006. Village consultants LBG challenged the Diocese’s claim that its other cemetery operations showed the fertilizer used would have only a minimal impact and no impact on the groundwater. They later found that “existing cemetery operations were contributing to nitrate levels” and required base-line groundwater sampling at existing cemeteries. The revised DEIS was submitted in May 2008. FPC’s comments were returned in August, but the Diocese was not provided copies, and thus filed its FEIS in July 2009. When the Board then granted time extensions to the consultants, counsel for the Diocese informed the Board the extensions were an unnecessary and illegal delay in acting on the Diocese's application and deemed the application denied. The Diocese would subsequently bring suit against the Village and other defendants in federal court.

Meanwhile in 2001, while the state lawsuit was pending, the Village Board had enacted a series of comprehensive zoning amendments. Citing the growing number of special permit applications for places of worship and private schools, the Village had issued a moratorium on applications for special permits in 1999. The two year review that followed led to a variety of zoning changes, including the Places of Worship (“POW”) law which imposed new requirements regarding building area, building height, setbacks from property lines, screening, etc. on places of worship.

The next post in this series will look at the commencement of the federal litigation and initial motions.

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 1, Introduction and State Litigation

The Roman Catholic Diocese of Rockville Center, New York (“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 facts underlying this legal battle begin in March 1995, when the Diocese purchased 97 acres of land to create the “Queen of Peace Cemetery.” As the Village Code did not permit the burial of human remains, the Diocese applied for a zoning change to allow development of the cemetery. A public hearing was held on November 30, 1995, and on March 18, 1996 the Board of Trustees of the Village (“Board”) denied the application on the grounds it was a commercial operation rather than a religious use.

After the application was denied, the Diocese filed suit on April 17, 1996 in the Supreme Court, Nassau County, against the Village and the Board challenging the decision and seeking a declaratory judgment that the proposed cemetery was in fact a religious use. The Supreme Court denied injunctive relief, but ultimately found the cemetery was a religious use. On appeal, the Appellate Division affirmed that the use was religious, but also found that a cemetery was a Type I action under the State Environmental Quality Review Act (“SEQRA”) and remanded the issue to the Board.

This is the first post in a series that will span the next two weeks. The next post in this series will look at the subsequent permitting process and environmental review.

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.)


Board Chairman Can Continue to be Employee of Cemetery

On October 26, 2015, Governor Cuomo signed A7641, which changes the effective date prohibiting employees of a not-for-profit corporation from being chairman of the Board of Directors from January 1, 2016 to January 1, 2017. According to the sponsor’s memo for the bill, while “preventing employees of a not for profit corporation from serving as chair of the [board]… is a worthy policy goal, the Legislature requires more time to study the impact of this prohibition on not-for-profit corporations.”


Proposed Rulemaking Published in Register: Part 5, Closing Thoughts

This fifth and final post in our series regarding the rulemaking proposed on December 9, 2015 on “Cemetery Annual Financial Reports; Commercial Crime Coverage; and Permanent Maintenance Fund Contributions.”

 

By and large, the proposed rulemaking is a big win for cemeteries of all sizes. By significantly raising the valuations required to be categorized as a small, medium, or large cemetery, many cemeteries will now see themselves exempted from the more onerous aspects of the financial reporting requirements. In addition, all cemeteries will now have longer to file those financial reports. For the largest cemeteries, the big win is in the commercial crime coverage insurance provisions, where these cemeteries will benefit from a cap in the coverage requirement of $500,000, as well as provisions which would allow them to seek a hardship waiver if necessary. Finally, cemeteries with a substantial reliance on pre-need sales will benefit from the clarity provided by the two new methods of making contributions to the permanent maintenance fund.

 

The only real “losers” in the proposed rulemaking are those cemeteries falling into the newly created category of “non-traditional cemeteries.” Such cemeteries will find themselves under stricter regulation than they were subject to previously, mainly due to the newly imposed requirement that they submit annual CPA financial audits.


Proposed Rulemaking Published in Register: Part 4, Permanent Maintenance Fund Collections and Contributions

This post will be the fourth in our series looking at the rulemaking proposed on December 9, 2015 on “Cemetery Annual Financial Reports; Commercial Crime Coverage; and Permanent Maintenance Fund Contributions.” Today’s post looks at permanent maintenance fund collections and contributions.

 

Under the proposed rulemaking, the deposit requirements for the permanent maintenance fund have been clarified to require deposits shall be made at least quarterly. This provision is viewed as a net positive for cemeteries, many of whom have been waiting until the end of the year to make their fund payments, as it prevents them from losing potential interest and gains.

 

The proposed rulemaking also addresses circumstances for which there is no existing guidance, namely situations where a cemetery receives payments in installments for a lot, plot, etc. In such circumstances, the full amount must be deposited in either lump sum at the time the contract is signed and initial payment is received, or by depositing 10% of the initial payment and all subsequent payments until the full amount required is reached. Clearly this is very beneficial for cemeteries that rely on pre-need sales.

 

This last provision had garnered a lot of attention since the initial draft of the rule required that the full amount of the permanent maintenance fund contribution be deposited when the installment sale was first made. This was viewed as being very detrimental to pre-need sales, and the Division of Cemeteries worked closely with industry leaders on a compromise, resulting in the above provision.


Proposed Rulemaking Published in Register: Part 3, Commercial Crime Coverage

This post will be the third in our series looking at the rulemaking proposed on December 9, 2015 on “Cemetery Annual Financial Reports; Commercial Crime Coverage; and Permanent Maintenance Fund Contributions.” Today’s post looks at the addition of the commercial crime coverage provisions.

 

The commercial crime coverage provision in the proposed rulemaking is an entirely new requirement necessitated by the fidelity bonds required by 19 NYCRR § 200.5 no longer being available. Instead, the proposed regulation provides that “every cemetery corporation shall carry commercial crime insurance or similar insurance coverage for the acts or omissions of cemetery directors, officers, and employees as well as volunteers who handle money, accounts or securities for the cemetery,” and further requires that the details of the policy (issuer, number, expiration date, etc.) must be included in the annual financial report discussed in the previous post.

 

Regarding the amount of coverage required, the proposed regulation sets the amount at $15,000 or 10% of total financial assets (defined in the first post), whichever is greater, with a cap of $500,000. This provision is subject to caveats allowing the Division of Cemeteries to increase the amount of coverage if circumstances warranted it. If the Division of Cemeteries did order an increase, this order is still subject to challenge by a cemetery that was aggrieved by such an order pursuant to 19 NYCRR § 200.2(b). The Division cannot, however, require coverage greater than 10% of total financial assets. There are also provisions allowing hardship waivers to reduce or modify the coverage requirement upon a showing of good cause. The exact criteria for such a waiver are detailed in the regulation.


Proposed Rulemaking Published in Register: Part 2, Annual Financial Reports

This post will be the second in our series looking at the rulemaking proposed on December 9, 2015 on “Cemetery Annual Financial Reports; Commercial Crime Coverage; and Permanent Maintenance Fund Contributions.” Today’s post looks at the changes to the annual financial reporting requirements.

 

Under the proposed rulemaking, every cemetery must file an annual financial report with the Division of Cemeteries (“Division”) within 90 days of the end of the fiscal year (a 15-day increase from the previous law). This report must include a completed DOS-415 and any Form 990 filed by the cemetery in the preceding calendar year, and must be signed by at least two officers or directors of the cemetery corporation. Medium cemeteries must also file a CPA financial report, while large and non-traditional cemeteries must file a CPA audit. The content requirements for these reports are specified at length in the regulation, so please refer to them for details.

 

Perhaps most importantly, there is a provision which allows the Division, on application by a medium or large cemetery, to modify the reporting requirements if said cemetery can show that the cost of compliance is onerous and unreasonable. It also empowers the Division to impose the stricter requirements of large and non-traditional cemeteries on small or medium cemeteries suspected of financial irregularities or non-compliance.

 

As a side note, the manner of making these submissions (mail, electronically, etc.) is left to the discretion of the Division, and thus can be more easily changed as needed in the future.



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