Posted by: Patricia Salkin | January 31, 2019

NY Appellate Court Reverses Variance Denial for Proposed Crematory

This post was authored by Amy Lavine, Esq.

A New York appellate court held in January that a variance was needed for the addition of a crematory to an existing cemetery property. The zoning board’s refusal to grant a variance was unreasonable, however, because the crematory application was based on sufficient proof of unnecessary hardship and there was no evidence that it would cause any negative impacts to the neighborhood.


The White Plains Rural Cemetery Association wanted to construct a crematory on its nonconforming cemetery property. It applied to the zoning board for a determination that the crematory would be a permissible use as part of the existing cemetery, but the zoning board concluded that a variance was necessary and denied the Association’s application in its entirety. The trial court mostly affirmed this ruling, but it granted that part of the Association’s petition that sought to annul the zoning board’s variance denial. This appeal followed, and the appellate court affirmed.


The Association’s argument that a crematory would be part of the same land use as the existing cemetery was based primarily on its status as a “cemetery corporation” under the state not-for-profit corporation law. But as the court explained, the Association’s corporate status as a “cemetery” didn’t necessarily mean that its proposed crematory would also qualify as a “cemetery” under the zoning ordinance. The zoning board wasn’t bound by provisions in the non-for-profit corporation law, the court noted, and it had authority under the state zoning laws to adopt its own regulatory definitions. The court also found that it was reasonable for the zoning board to look to common dictionary definitions for its interpretation of what constituted a “cemetery” and its decision that the proposed crematory wouldn’t qualify for this classification was entitled to deference, regardless of whether or not the Association might be a “cemetery” under other legal regulations.


The appellate court next considered the zoning board’s decision to deny a variance for the crematory. The general rule, the court explained, is that a property owner is only eligible for a use variance if it can show an unnecessary hardship. Additionally, New York law requires that: (1) the property would not be capable producing a reasonable return under existing permitted uses; (2) the hardship was the result of a unique feature of the property; (3) the variance would not have negative impacts on nearby residents or alter the character of the neighborhood; and (4) the hardship was not self-created. In the circumstances of this case, the court found that the Association sufficiently proved an unnecessary hardship and that it produced adequate “dollars and cents” evidence that it would be unable to realize a reasonable return in the absence of variance relief. In particular, the court noted that the Association had provided factual and expert evidence of its ongoing operating losses, including its financial records and projections made by a financial analyst. The zoning board had dismissed this evidence as contradictory based on a tax document showing that the Association had some income in 2014, but the court held that this determination was arbitrary and irrational, explaining that “the Board failed to differentiate investment income accrued in the Cemetery’s statutorily required permanent maintenance fund from the net losses the Cemetery incurred as a result of its decline in revenue.”


The zoning board had also denied the Association’s variance request on the basis that a crematory would alter the essential character of the neighborhood. But the court disagreed as to this point as well, noting that “the unrebutted evidence demonstrated that the crematory would be shielded from view, would be odorless and not emit visible smoke, and had passed all necessary emissions and air quality testing.” Additionally, the crematory would have no impacts on historic resources, nor would it be visible from the nearest residence, which was located 400 feet away on the other side of a major highway. The court dismissed the zoning board’s remaining concerns about property values and the possibility that additional crematories might be added in the future, as these findings were speculative and based on generalized community opposition to crematories. Based on this analysis, and because there was no disagreement that the Association satisfied the remaining statutory criteria, the court affirmed the determination below which annulled the zoning board’s denial of the Association’s variance request.


White Plains Rural Cemetery Association v City of White Plains, 2019 WL 362123 (NYAD 2 Dept. 1/30/2019).

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