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.

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.)

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.)

This is the sixth 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 equal terms claim brought under RLUIPA.

The second RLUIPA claim that the Court examined was whether the defendants treated the plaintiff on “less than equal terms than a nonreligious assembly or institution.”  Specifically, this provision of RLUIPA provides that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”

Regarding this provision, the Second Circuit Court of Appeals has found that the application of different land use regimes is not per se a violation, noting that the application of zoning codes to a church and school are necessarily different, but not necessarily unequal. Here, it was found the Diocese had failed to identify a comparable specular institution that was treated more favorably, and that the entities it did name were either not comparable or not an “institution or assembly.” Thus the defendants’ motion for summary judgment on the equal terms claim was granted.

The next post in this series will look at the Diocese’s §1983 retaliation 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.)

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.)

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.)

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.)

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.)

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.)

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.”