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State “Cemetery Law” Does not Preempt Local Zoning

In a case where the claim is the Not For Profit Corporation Law Article 15 (cemetery law) preempts local zoning, the Appellate Division held a local prohibition on crematories was not invalid. In Matter of Oakwood Cemetery v. Village/Town of Mt Kisco, the local cemetery claimed that a new zoning provision that prohibited a crematory could not be enforced as it was inconsistent with provisions of the Not for Profit Corporation Law that include crematories within the definition of cemetery.

In dismissing the claim, the Court found:

“although Not-for-Profit Corporation Law article 15 governs the operation of corporations which own and manage cemeteries, it does not expressly preempt zoning ordinances relating to land use by cemeteries. Further, there is no declaration of State policy in either Not-for-Profit Corporation Law article 15 or the rules and regulations promulgated under it that evinces any such intent…The Supreme Court properly determined that Not-for-Profit Corporation Law ยง 1502(d) does not invalidate the Village’s more restrictive definition of “cemetery” under the doctrine of conflict preemption. The Not-for-Profit Corporation Law is addressed to the management of cemetery corporations, and the definition contained in the Not-for-Profit Corporation Law addresses the scope of that law. By contrast, the Village Code’s definition of “cemetery,” which excludes crematories, is addressed to land use, which is another matter entirely. Since the differing definitions of “cemetery” are addressed to differing purposes, they are not in direct conflict…”

-Steven Silverberg