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Welcome to the first part in our Oakwood Cemetery series. In Oakwood Cemetery v. Village of Mount Kisco, No. 15498-11 (Supreme Court, Westchester County, May 7, 2012), the court dismissed a lawsuit brought by Oakwood Cemetery seeking to overturn a zoning decision that barred the building of a crematorium on its grounds. At issue in that lawsuit was the legality of a Mt. Kisco ordinance amending its Village Code to specifically exclude “facilities used for cremation” from the definition of “cemeteries.” That ordinance, which had the effect of prohibiting the planned construction, was unanimously passed by Village Trustees over the specific objection of the New York State Division of Cemeteries, which had previously granted Oakwood’s building request. While the judge in Oakwood Cemetery recognized that Oakwood’s operation of a cemetery was a legally permissible “non-conforming” use of its property, the court held that operation of a crematorium was, by virtue of the zoning ordinance, not such a permissible use. Importantly, the Westchester court rejected the argument that Mt. Kisco’s ordinance was in conflict with New York State law that specifically includes the term “crematory” within the definition of the term “cemetery.”

Check back soon for our next post, which will look at why this decision is important and begin our discussion of the subsequent appeals.