Crematory Gets Zoned Out: Oakwood Cemetery Part IV, Administrative Appeal and Conclusion

Welcome back. This is our final post in the Oakwood Cemetery series, and will begin by continuing with the discussion of the case’s appeal. In addition to the holdings we already discussed, the appellate court further agreed with the lower court’s dismissal of the cemetery’s claim that the proposed crematorium constituted a “valid prior nonconforming use.” With respect to this claim, the court held that because Oakwood never administratively appealed the building inspector’s denial of its request for a building permit, the matter was not properly before the court for decision.

The appellate decision in Oakwood Cemetery broadly confirms a locality’s right to pass zoning ordinances with respect to the use of cemetery property. Absent any enactment of new state law to the contrary, the decision makes it largely impossible to argue that land use regulation is foreclosed by the regulation of cemeteries provided for in Article 15 of the Not-For-Profit Corporation Law. It is important to also note that the decision makes clear the necessity of pursuing all available administrative remedies prior to filing a lawsuit based upon a local official’s zoning decision. Had the cemetery in Oakwood properly appealed the building inspector’s denial of a non-conforming use application, it would at least have had another avenue for appeal of a decision denying it the right to expand its business.

That concludes our discussion of Oakwood Cemetery. From everyone here at Cuthbertson Law, we hope you found it to be informative, and encourage you to continue checking the Cuthbertson Law Cemetery Blog, as well as our other postings on land use and civil rights law, in the future.

Crematory Gets Zoned Out: Oakwood Cemetery Part III, The Appeal

This post is the third part of our Oakwood Cemetery series. If you haven’t been reading thus far, scroll down to read the earlier posts on this case. If you have, let’s pick up where we left off.

As previously discussed, a trial court in Westchester County thwarted a cemetery’s attempt to build a crematory by upholding a village zoning ordinance prohibiting such construction on cemetery land. On March 12, 2014, the Appellate Division, Second Department rendered a decision that, in all material aspects, affirms the lower court’s ruling. Oakwood Cemetery v. Village/Town of Mount Kisco, 115 A.D.3d 749, 981 N.Y.S.2d 786 (2d Dep’t. 2014).  The appellate court in Oakwood Cemetery, like the trial court, rejected the argument that Article 15 of the Not-For-Profit Corporation Law, which regulates the operation of corporations that own and manage cemeteries, prohibits local land use regulation of cemeteries.  Therefore, according to the court, the Village of Mt. Kisco was free to pass zoning laws addressed to the use of cemetery land. While the lower court merely dismissed the Cemetery’s claim addressed to Article 15, the appellate court went further, holding that a judgment should have been entered declaring the restrictive zoning law valid, and not barred by Article 15.

Check back soon for our final post on Oakwood Cemetery, which will cover the importance of administrative appeal and conclude our discussion of this case

Crematory Gets Zoned Out: Oakwood Cemetery Part II, Why It Matters

Welcome (or welcome back) to the second of our Oakwood Cemetery series. Today’s post looks at the importance of the Oakwood decision, which upheld a zoning ordinance that blocked a cemetery’s planned construction of a crematorium.

Prohibition of the building of crematoriums on cemetery lands via local zoning regulations can foreclose an important source of revenue for operators of cemeteries. As noted by the New York State Division of Cemeteries, this is of special concern to those facilities which, in the absence of new sources of revenue, are in danger of falling into disrepair and becoming a burden to the community. Indeed, zoning ordinances that interfere with the right to build crematoriums on cemetery land can also interfere with the ability of financially sound institutions to offer a service that is complementary to what is increasingly becoming the internment of choice. After the district court’s ruling, the Oakwood case was appealed to the Appellate Division. The appellate court granted the application of the New York State Division of Cemeteries to participate in the case as amicus curiae. The Appellate Division, Second Department, held argument in the case on January 21, 2014.

Check back soon for our next post, which will discuss how Oakwood Cemetery fared on appeal.

Crematory Gets Zoned Out: Oakwood Cemetery Part I, The Case

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.

Crematory Gets Zoned Out: Oakwood Cemetery Introduction

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.

Does Your Cemetery Need an Employee Handbook?

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.

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