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).

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