Welcome to the first part in our Oakwood Cemetery series. In Oakwood Cemetery v. Village of Mount Kisco, No. 15498-11 (Supreme Court, Westchester County, 2012), the court dismissed a lawsuit brought by Oakwood Cemetery seeking to overturn a zoning decision that barred the building of a crematorium on its grounds. At issue in that lawsuit was the legality of a Mt. Kisco ordinance amending its Village Code to specifically exclude “facilities used for cremation” from the definition of “cemeteries.” That ordinance, which had the effect of prohibiting the planned construction, was unanimously passed by Village Trustees over the specific objection of the New York State Division of Cemeteries, which had previously granted Oakwood’s building request. While the judge in Oakwood Cemetery recognized that Oakwood’s operation of a cemetery was a legally permissible “non-conforming” use of its property, the court held that operation of a crematorium was, by virtue of the zoning ordinance, not such a permissible use. Importantly, the Westchester court rejected the argument that Mt. Kisco’s ordinance was in conflict with New York State law that specifically includes the term “crematory” within the definition of the term “cemetery.”
Check back soon for our next post, which will look at why this decision is important and begin our discussion of the subsequent appeal.
In New York State, nearly one third of deaths are now followed by cremation. In fact, the number of cremations per year is fast approaching, and may soon exceed, the number of ground burials. Recognizing this trend and aware of the growing number of internments of cremated remains, cemeteries, including those facing financial pressure, may consider building crematoriums on cemetery land. While this may make a great deal of sense for the cemetery, neighboring residents and the local zoning board may pose a potential hurdle to such plans. Such a situation will be the focus of the next several cemetery law posts, as we look at a case where the attempt to build such a facility was thwarted by a decision upholding a zoning ordinance specifically excluding cremation facilities from the definition of a “cemetery.” The case, from the Supreme Court in Westchester County, is Oakwood Cemetery v. Village of Mount Kisco, No. 15498-11. We also plan to examine the subsequent appeal and discuss the implications of the decision.
Check back soon for more on this issue.
While your relationship with many of your employees may be covered by a collective bargaining agreement, your cemetery could benefit from a handbook for your non-union employees. There is no law that requires an employee handbook. However, it can provide your cemetery with substantial benefits. It lets management inform employees about workplace rules in a uniform manner. A handbook can provide for an at-will policy and provide a valuable defense against a breach of contract claim. Handbooks also can provide a handy place for various policies that should be in writing, such as policies on vacation, family and medical leave smoking and drug testing. In addition, in the absence of policies in a handbook, past and present activities can become policies and provide fodder for among other things, discrimination lawsuits.
While a comprehensive explanation of the advantages of an employee handbook is beyond the scope of this article, suffice it to say that the benefits of having a handbook far outweigh any detriment.