February 8, 2019

In the Matter of White Plains Rural Cemetery Association v. City of White Plains, decided January 30, 2019, the Appellate Division, Second Department, affirmed the lower court decision to annul a determination of the City of White Plains Zoning Board of Appeals denying a use variance for a crematory at an existing cemetery.

The Appellate Division agreed with the Supreme Court’s holding that the crematory use was not included in the existing nonconforming cemetery use at the subject property.

The Appellate Division also agreed that the cemetery had met the requirements for a use variance for the crematory under state law. The court stated in relevant part as follows:

“With regard to the first element, “[i]t is well settled that ‘a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses’” …. Contrary to the Board’s determination, the Cemetery submitted evidence consisting of projections from a financial analyst and profit and loss statements which demonstrated that it had operated at a loss for the five-year period preceding the filing of its application. In finding that this evidence was contradictory and conflicted with a 2014 tax document indicating that the Cemetery had a positive income that year, the Board failed to differentiate investment income accrued in the Cemetery’s statutorily required permanent maintenance fund (see Not-for-Profit Corporation Law § 1507[a]) from the net losses the Cemetery incurred as a result of its decline in revenue. As such, there was no rational basis for the Board’s finding that the Cemetery was not experiencing a financial hardship.”

The court continued as follows:

“As to the third element, the Board improperly determined that the 1,800-square-foot crematory would alter the essential character of the neighborhood. 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. Other evidence indicated that the structure would not have an impact on any nearby historical resources and the crematory was not visible from the nearest residence, which is 400 feet away and across a major interstate highway. The Board’s other concerns that surrounding home values would decrease and that granting the variance would allow for additional crematoriums to be constructed on the subject property are predicated on nothing more than speculation and appear to be the product of generalized community opposition…”

A copy of the decision can be obtained online: http://www.courts.state.ny.us/courts/ad2/Handdowns/2019/Decisions/D58060.pdf

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