Oakwood Cemetery has taken Mount Kisco to court over a recent zoning change that bans crematories as a permitted cemetery use.

In a complaint filed in state Supreme Court, Oakwood asks that the restriction be nullified, a building permit be granted by the village for its planned crematory and for an unspecified amount of damages.

"Oakwood Cemetery was very reluctant to do this," said Timothy Griffin, who is Oakwood's lawyer. Griffin also noted that Oakwood has gotten along fine in the community.

"Oakwood is a very good neighbor," he said.

Oakwood argues in its lawsuit, first filed Oct. 12, that Mount Kisco's restriction, which was part of a cemetery zoning definition that the Village Board of Trustees approved of on June 13, is preempted by New York State law, specifically the Not for Profit Corporation Law that cemeteries are governed under. That code mentions crematories as a use. In addition, Oakwood cites a letter written May 4 by New York State Cemetery Board Chair Daniel Shapiro to the village board, in which he argues that village law may not have a blanket prohibition.

Village Attorney Whitney Singleton, while declining to comment about the case, did note his disagreement with the preemption argument. During the village board's review last spring, Singleton took issue with Griffin's assertion of the preemption argument. In addition, Singleton in June had stated that he reviewed case law and correspondences on the matter. After reviewing the materials, including Shapiro's letter, Singleton's opinion on the village's zoning authority hadn't changed.

Mayor Michael Cindrich, while declining to discuss the case because it is pending litigation, described the matter as "unfortunate."

Other arguments included Oakwood's use - it was founded in 1882 and is currently at 55 cemetery acres - predates Mount Kisco's zoning code, and that it was not given a fair review by the village and that its constitutional right of equal protection was violated. An example cited by Oakwood for insufficient review was the lack of a traffic study. Some people in the community have raised concern over the impact on traffic from trips coming up to a crematory.

In addition, Oakwood argues that a crematory would not be a problem for the site's existing zoning, anyway. The cemetery is covered under a Preservation District (PD) zone, which governs areas that have primarily open space, which Oakwood argues would not be compromised.

Since 2008, the cemetery has been trying to build a 6,000 square-foot, two-story crematorium near the superintendent's residence and maintanace barn. It would have two cremation units called retorts. Oakwood argues that it needs to have another revenue source to help with its finances.

“While there is sufficient land available to meet expected demand for burial plots for many decades, Oakwood is concerned that the revenue generated by cemetery operations and investments will prove inadequate to sustain the cemetery," the suit states.

The application, which was discussed at the conceptual level by the Planning Board in 2008, was given a rejection letter in January 2009 by Building Inspector Austin Cassidy because he argued that it would become a primary, principal use for the site as opposed to an accessory one argued for. Cassidy, in giving his reason for this, was concerned that the scope could become significant for the crematorium, noting data presented at the time for use.

While not getting village approval, Oakwood sought and won approval on Jan. 21, 2010 from both the New York State Department of State’s Division of Cemeteries, along with the state's Cemetery Board, which each have oversight. Oakwood sees getting a building permit as a next step for the crematory.

A copy of the lawsuit is attached.