Appellate Court Sides With Mt. Kisco in Cemetery Suit

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A state appellate court has rejected an appeal from Oakwood Cemetery in its Article 78 against the Village of Mount Kisco over a plan to provide cremation services.

The ruling, which was written in March by the Appellate Division of the state Supreme Court, Second Division, prevents Oakwood Cemetery, located at 304 Lexington Ave., from constructing two cremation units on its property. The cemetery has operated in the village since 1883.

“I’m disappointed that the appellate division didn’t see it our way,” said Robert Spolzino, an attorney representing the cemetery who declined to elaborate.

The cemetery was denied a building permit in 2008 by then-Building Inspector Austin Cassidy. It did not seek approval from the zoning board of appeals.

In February 2011 Oakwood Cemetery again sought a building permit, but was told by the building department that the application would not be considered because the village board was in the process of revising the village code, which could have an effect on the request.

The revised code was approved by village trustees in June 2011 and the portion regulating the cemetery stated that Oakwood was “property used for the interring of the dead. This use shall not include facilities for cremation.”

The cemetery filed an Article 78 three months later. One basis of the litigation was that Mount Kisco’s new definition of a cemetery was unconstitutional because it violated state nonprofit corporation law. The village successfully fought the action in state Supreme Court.

In its decision, the appellate court concluded that the state Supreme Court correctly determined that the village code’s definition of a cemetery that excludes crematories correctly addresses land use.

“The Supreme Court properly dismissed the third cause of action, which sought a judgment declaring that its proposed crematorium constituted a valid prior nonconforming use,” the appellate decision stated in part. “Oakwood failed to plead that it exhausted its administrative remedies and failed to establish that the pursuit of those remedies would have been futile.”

Oakwood will be responsible for paying all of the village’s court costs, the court ruled.

Mayor Michael Cindrich applauded the court’s decision, but wished litigation could have been avoided.

”Unfortunately, the zoning issue over the proposed crematory had to be settled in the courts,” Cindrich said. “Oakwood Cemetery is a valuable asset to our community, managed by community-minded people who are concerned with the financial sustainability of the cemetery.”
Cindrich maintained the village rightfully refused to provide the approval.

“Oakwood is located in the village’s most restrictive zoning, Preservation District, formulated to preserve natural beauty and the ecological values of the area, a passive area that helps protect the community’s quality of life,” he said. ”Putting aside all of the issues raised, religious, health concerns, traffic and compatibility to existing residential zones, the issue came down to zoning and the village’s Master Plan.”

Cindrich said during hearings preceding the adoption of Mount Kisco’s Master Plan about 12 years ago many future uses were discussed and incorporated into the village’s zoning ordinance and “a crematory use was never raised or suggested.”

“I would like to think we made the right decision in protecting the integrity of the zoning ordinance,” the mayor said. “Time will tell.”

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