Posted by: Patricia Salkin | July 23, 2014

PA Appeals Court Upholds Board’s Determination that a Crematory is Not the Same as a Funeral Home

Louis Galzerano (“Galzerano”) was the owner of Bucks County Crematories in Pennsylvania. In response to increased demand for cremation services, Galzerano sought to open a new crematory in Tullytown. He entered into a lease agreement for a commercial building located in a Light Industrial (“LI”) District. Under the Tullytown Borough Zoning Ordinance (“Ordinance”), mortuaries and funeral homes were permitted uses in the LI District. Galzerano applied for a use and occupancy certificate for the property, identifying the proposed commercial use as a crematory. The Ordinance, however, did not include a commercial land use category for a crematory. Therefore, the zoning officer denied the application. Galzerano appealed to the Board. Galzerano testified that the proposed crematory would serve customers from Galzerano’s funeral home in Levittown and other area funeral homes. Further, that the crematory would only accept bodies for cremation from a funeral home and would only release the remains to the funeral home of origin. The Board denied the application finding that a crematory was analogous to an incinerator use, which was permitted only in a Solid Waste District. Further, a crematory was only permitted in the LI District as an accessory use to a funeral home or mortuary. The Board also rejected Galzerano’s claim that a crematory was the same use as a mortuary or funeral home.

The trial court denied the appeal, holding that the proposed crematory did not fall under the commonly accepted definition of a “funeral home,” because its primary purpose would be to perform cremation services for funeral homes. Galzerano then appealed to the Commonwealth Court arguing that the Board erred in denying his application because, under the Ordinance, a crematory was a permitted use. Further, because the Ordinance did not even mention crematories, the Board should have construed the Ordinance in his favor.

The court stated that “A zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference” because, “as the entity charged with administering a zoning ordinance, it possesses knowledge and expertise in interpreting that ordinance.” City of Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137, 1143 (Pa.Cmwlth.2006). The fact that the Ordinance did not provide a definition of “funeral home” did not itself render the Ordinance ambiguous. The Court reasoned that under a commonly accepted definition, a “funeral home” is “an establishment with facilities for the preparation of the dead for burial or cremation, for the viewing of the body, and for funerals.” Applying the definition the court agreed with the trial court that the proposed stand-alone crematory was not a funeral home. Moreover, funeral homes are facilities that provide professional services directly to the families and loved ones of the deceased, and the crematory would not be open to the public. When asked specifically whether a family or loved one could secure the services of the proposed crematory directly, Galzerano testified that they could not. Instead, he said they would have to go through a funeral home, his or other funeral homes to which his proposed crematory would provide services. Therefore, the court found no error by the Board or the trial court in differentiating between a funeral home, which provides professional services to the public on one hand, and a stand-alone crematory that provides cremation services to funeral homes on the other.

Galzerano v Zoning Hearing Bd. of Tullytown Borough, 92 A3d 891 (PA Commwlth 5/30/2014)

The opinion can be accessed at: http://www.pacourts.us/assets/opinions/Commonwealth/out/490CD13_5-30-14.pdf


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