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Cemetery Entitled to Use Variance
Matter of White Plains Rural Cemetery Association v. City of White Plains NYLJ2/1/19, p. 28, col. 5 AppDiv, Second Dept. (memorandum opinion)
In a hybrid declaratory judgment action/article 78 proceeding, both the city and landowner appealed from Supreme Court's judgment declaring that landowner needed a use variance, but granting so much of the petition as challenged the denial of the use variance. The Appellate Division affirmed, holding that landowner had established the factors necessary to qualify for a use variance.
Landowner, a non-profit public cemetery association, proposed to build a crematory on the cemetery property. Landowner sought an interpretation of the ordinance that the crematory is a permitted use under the cemetery's legal nonconforming use. In the alternative, landowner sought a use variance for the crematory. The Zoning Board of Appeals (ZBA) denied landowner's application. Landowner then brought this article 78 proceeding. Supreme Court upheld the ZBA's determination that the crematory was not part of the existing nonconforming use, but concluded that the cemetery was entitled to a use variance. Both parties appealed.
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