McGann v. Incorporated Village of Old Westbury

• Decision Date: 16 September 1996
• Parties: John R. McGANN, as Bishop of the Roman Catholic Diocese of Rockville Centre, et al., Plaintiffs, v. INCORPORATED VILLAGE OF OLD WESTBURY, et al., Defendants.
• Court: New York Supreme Court

Page 934

647 N.Y.S.2d 934

170 Misc.2d 314

John R. McGANN, as Bishop of the Roman Catholic Diocese of

Rockville Centre, et al., Plaintiffs, v. INCORPORATED VILLAGE OF OLD WESTBURY, et al., Defendants.

Supreme Court, Nassau County.

Sept. 16, 1996.

Bennett, Pape, Rice & Schure, Rockville Centre, for plaintiffs.

Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P. C., Uniondale, for defendants.

THOMAS P. PHELAN, Justice.

Plaintiffs' application for injunctive relief is denied. For the reasons hereinafter stated, the court finds that plaintiffs have failed to establish the elements of the tripartite test for preliminary injunctive relief.

Plaintiff Roman Catholic Diocese of Rockville Centre is the current owner of a 100-acre parcel of land located on Jericho Turnpike in the Incorporated Village of Old Westbury (hereinafter, "the property").

By this application plaintiffs, (hereinafter, "the Diocese") seek three directions from this Court to the defendants, (hereinafter, "the Village"): that the Village permit the Diocese to establish a cemetery on the property, that the Village establish a meaningful, legitimate process to act upon a pending zoning application in an expedited manner and with due consideration for its religious nature, and that the Diocese's application for cemetery use be referred to the Nassau County Legislature pursuant to Section 451 of the Real Property Law.

The Diocese wrote to the Village in January, 1993 advising that the Diocese was the contract vendee of property located on Jericho Turnpike upon which the Diocese intended to establish a cemetery. By letter dated February 10, 1993 the Village responded, in part, that use of property for cemetery purposes is not a permitted use within the Village and if the Diocese intended to seek a change of zone, an application must be presented to the Board of Trustees. ¹ The Diocese filed a change-of-zone application as contract vendee in October, 1993. Much later, after the Diocese became the owner of the property, the Village, by Resolution, dated March 18, 1996, denied the Diocese's application.

The reasons for the passage of time between submission of the application and the Resolution are adequately set forth in the papers. No improper conduct can be imputed to the Village for the expanse of time between the two events.

In the Resolution, defendants noted that a cemetery is not a permitted use in the Village, that the Diocese had applied to change the zone to permit such a use, that the Village was required to use its zoning powers in accordance with its comprehensive plan, that the initial question is whether the Diocese's application is in accordance with the existing comprehensive plan, that the matter was considered by the Village Planner, who rendered his report, that a public hearing was held, and that at the hearing plaintiffs' presentation did not include a request for a change of the Village's comprehensive plan. ²

Therefore, Old Westbury Village Board concluded that the use of property in the Village for a cemetery is not in accordance with the comprehensive plan of the Village, that the Diocese has not demonstrated that the comprehensive plan should be changed to include a cemetery use because of the Village's change and growth, and that the proposed amendment is calculated to benefit an individual landowner, rather than a community as a whole.

In opposition to the position taken by the Village, the Diocese asserts as the basis for its present request for injunctive relief that it is faced with an emergency. It claims it is running out of burial space at its Cemetery of the Holy Rood. It also asserts that the Village needlessly delayed the Diocese's application and failed to take into consideration the religious nature of its application.

A party seeking injunctive relief must establish that irreparable harm will befall it absent the granting of such relief, that there is a likelihood of success on the merits of the underlying action, and that a balancing of the equities favors the moving party. (Betesh v. Jemal, 209 A.D.2d 568, 619 N.Y.S.2d 94.) By irreparable injury is generally meant harm which is immediate, specific, nonspeculative and nonconclusory. (Grumet v. Cuomo, 162 Misc.2d 913, 617 N.Y.S.2d 620.) The burden to be carried in obtaining injunctive relief is heavy when, as here, the relief sought is the same as the ultimate relief sought in the action. (Grumet v. Cuomo, supra.)

Plaintiffs admit that they have a sufficient number of grave sites to satisfy needs until well into 1998. Moreover, the papers read on this application make it clear that there are other presently existing cemeteries in Nassau and Suffolk Counties, including one owned by the Diocese located in Brookhaven Town, which can accommodate Catholics. Plaintiffs acknowledge that there is no religious requirement that members of the Catholic faith be buried in a Catholic cemetery. Thus, the Diocese's claims of an emergency and irreparable harm absent this motion being granted are not substantiated by the facts.

Neither is it disputed that there are other properties available in areas in Nassau County which are already zoned for cemetery use. That such properties might require the expenditure of more money to make cemeteries out of them than the property here cannot either make the Diocese's cemetery status an emergency situation or render the financial harm irreparable.

The Diocese knew as early as February 1993 that a cemetery was not a permitted use of land in the Village ³. Moreover, counsel for plaintiffs himself states that it has become almost a matter of accepted practice that the zoning process before the various boards in Nassau County proceed in a leisurely manner. ⁴ The Diocese admittedly accepted the risks involved in obtaining the requisite municipal approval to use the property as a cemetery at the time of purchase by unconditionally taking title from the United States Government.

Despite this, it appears that the Diocese has not moved with great dispatch in attempting to obtain required approvals. Its claim of delay and bias on the part of the Village is not established under the facts reflected in the papers before the Court.

Neither does a balancing of the equities favor the Diocese. Putting aside the impact on the Village, the potential for harm to the Diocese by reason of a denial of...