Posted by: Patricia Salkin | August 22, 2020

NY Appellate Court Upholds ZBA Determination Deed Did Not Create a Covenant that Ran with the Land for Cemetery

This post was contributed by Matthew Loescher, Esq.

In 1902, petitioner, Ferncliff Cemetery Association, was incorporated for the purpose of operating a cemetery in the respondent Town of Greenburgh. By resolution, the Westchester County Board of Supervisors allowed the petitioner to use certain lands comprising approximately 101 acres in the Town for “cemetery purposes.” In 1908 and 1909, the original 101 acres designated for cemetery purposes were divided into two distinct and separate parcels. A portion of the property, in excess of 63 acres, on the north side of Secor Road was conveyed to the petitioner. The petitioner had undisputedly used the large parcel on the north side of Secor Road for cemetery purposes in a continuous and uninterrupted manner. By deed dated November 20, 1908, Grove Hill Realty Company sold a portion of the lands originally designated as cemetery property, comprising approximately 33 acres and lying to the south of Secor Road, to Adolph Lewisohn, a private individual. Those 33 acres were transferred to Lewisohn “in fee simple” and “free from encumbrances,” with no express reservation of any rights of the petitioner.

In 2013, the petitioner applied for a building permit to remove the existing cottage on the southern property and replace it with a new 5,000 square-foot “caretaker cottage with attached garage.” The proposed attached garage would be used “to store equipment, materials and supplies associated with the caretakers’ duties.” By letter, the respondent John Lucido, the Town Building Inspector, denied the application, noting that the proposed caretaker’s cottage and maintenance facility did not comply with existing zoning. The petitioner appealed the Building Inspector’s determination to the respondent Town Zoning Board of Appeals, which affirmed. In this case, petitioner appealed the denial of its CPLR article 78 claim to review the ZBA’s determination.

The court first noted that a cemetery use will not be deemed abandoned based upon “mere disuse” or by “omitting to make new interments therein” Furthermore, “land used as a yard for storage of tools, machinery, and equipment is also actually used and occupied for cemetery purposes since the use of such yard is necessary and incidental to the proper maintenance of the cemetery and for carrying out the purposes for which it was organized”. Here, however, the 1908 sale of the 33–acre parcel on the south side of Secor Road to Adolph Lewisohn, a private individual, which included the 12.5–acre parcel at issue, constituted an affirmative act of abandonment of the cemetery use of that property.

The court also upheld the ZBA’s determination that the notation in the 1907 deed from Ferncliff Realty Company to Grove Hill Realty Company, that the property was being sold “subject to the rights of the petitioner,” which notation was not made in later deeds transferring the property, did not create a covenant that runs with the land. Even had a valid covenant been created, the fact that Grove Hill Realty Company, an entity purportedly affiliated with the petitioner, deeded the property to a private individual “in fee simple” and “free from encumbrances,” with no express reservation of any rights to the petitioner, was evidence of the intent to extinguish the covenant, and estopped the petitioner from any attempt to enforce it. Accordingly, the ZBA’s holding was affirmed.

Ferncliff Cemetery Association v Town of Greenburgh, 124 NYS 3d 61 (NYAD 2 Dept. 5/20/2020)


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