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.