Agenda - Planning Commission - 02/04/1997

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Z.B. January 15, 1997 -- Page 5 Religious Use -- Church, declaring emergency, asks court to order zoning change Citation: McGann v. Incorporated Village of Old Westbury, 647 N. Y.S. 2d 934 (New York) 1996 The Roman Catholic Diocese of Rockville Centre, N.Y., contracted to buy a 100-acre parcel in the village of Old Westbury, N.Y. The Diocese intended to use the property for a cemetery. In early 1993, when the village learned of the plans, it wrote the Diocese that the property was not zoned for cemetery use, and the Diocese would have to propose a zoning change. In October, the Diocese applied for the change. In March 1996, after the Diocese had become owner of the property, the village denied the application. The village noted the zoning change was not consistent with its comprehensive plan. The village planner had considered the request and reported on it, a public hearing had been held, and the Diocese had not asked that the comprehensive plan be changed. The Diocese sued the village. It asked for a pretrial order requiring the village to let it establish the cemetery. The Diocese argued it was running out of burial space at its other cemetery and faced an emergency. However, the Diocese admitted it had enough grave sites to last weI1 into 1998, when it intended to begin selling plots at the proposed cemetery. The Diocese also claimed the village had not considered the religious nature of the proposed zoning change. However, it admitted it owned other cemeteries in the area and in the next county, that one of the cemeteries could accommodate Catholics, and that Catholicism did not require its members be buried in Catholic cemeteries. Further, other properties zoned for cemetery use existed in the county. The Diocese also claimed the village had needlessly delayed its decision. It claimed the village could have quickly decided whether the proposed cemetery was in accord with the comprehensive plan. However, the Diocese acknowledged local zoning matters often proceeded slowly. DECISION: Application denied. The Diocese was not entitled to a temporary order allowing it to operate a cemetery. The Diocese did not show it would 'suffer irreparable harm without the order. It admitted alternatives to the new cemetery existed, that its other cemetery would not be full until 1998, and that Catholics did not have to be buried in Catholic cemeteries. The Diocese knew the property was not zoned for cemetery use. It accepted the risks when it bought the property. The evidence did not support its claim that the village delayed and was biased. Were the court to grant the order, and the village then to prevail at trial, the Diocese might have to disinter buried bodies. This potential harm was greater than the harm of having to drive to more distant grave sites. The sale of burial plots appeared to be a more significant part of the Diocese's