By Dillon, J.P.; Cohen, Connolly, Christopher, JJ. IN THE MATTER OF FERNCLIFF CEMETERY ASSOCIATION, app, v. TOWN OF GREENBURGH, ET AL., res — (Index No. 2868/15) APPEAL by the petitioner, in a proceeding pursuant to CPLR article 78 to review a determination of the Town of Greenburgh Zoning Board of Appeals dated August 7, 2015, after a hearing, confirming a determination of the Town of Greenburgh Building Inspector dated December 16, 2013, denying the petitioner’s application for a building permit, from a judgment of the Supreme Court (Rolf Thorsen, J.), dated November 15, 2016, and entered in Westchester County. The judgment denied the petition and dismissed the proceeding. Turner & Turner, White Plains, NY (Frederick W. Turner and Bleakley Platt & Schmidt, LLP [William H. Mulligan, Jr., and James W. Glatthaar], of counsel), for appellant. Timothy W. Lewis, Greenburgh, NY (Edward M. Lieberman of counsel), for respondents. CONNOLLY, J. For the reasons that follow, we hold that the sale of land designated for cemetery purposes to persons or entities with no affiliation to the cemetery, and with no authority of their own to operate a cemetery, constitutes an unequivocal affirmative act of abandonment of the right to use that land for cemetery purposes. I. Factual and Procedural History On February 13, 1902, the petitioner, Ferncliff Cemetery Association, was incorporated for the purpose of operating a cemetery in the respondent Town of Greenburgh. On April 7, 1902, by resolution, the Westchester County Board of Supervisors gave “consent” to the petitioner to use certain lands comprising approximately 101 acres in the Town for “[c]emetery purposes.” At the time the petitioner obtained consent to use those lands for cemetery purposes, the 101-acre property was owned by a group of private individuals, including John C. Witte, who was a founding director of the petitioner. By deed dated October 26, 1903, those lands, comprising the entirety of the cemetery property, were transferred from John C. Witte and others to Ferncliff Realty Company, a for-profit corporation formed by Witte and others, inter alia, “[t]o construct, equip, improve, promote and develop…cemeteries.” By deed dated December 28, 1907, Ferncliff Realty Company transferred the same lands comprising the entirety of the cemetery property to Grove Hill Realty Company, also a for-profit corporation, “subject to the rights of the [petitioner].” In 1908 and 1909, the original 101 acres designated for cemetery purposes were divided into two distinct and separate parcels. A large portion of the property, in excess of 63 acres, on the north side of Secor Road was conveyed to the petitioner. The petitioner has undisputedly used the large parcel on the north side of Secor Road for cemetery purposes in a continuous and uninterrupted manner. The issues in this case pertain to a portion of the approximately 33-acre parcel located on the south side of Secor Road, which has been untethered from the petitioner’s sphere of control for several decades. By deed dated November 20, 1908, Grove Hill Realty Company sold a portion of the lands originally designated as cemetery property, comprising approximately 33 acres and lying to the south of Secor Road, to Adolph Lewisohn, a private individual. Notably, those 33 acres were transferred to Lewisohn “in fee simple” and “free from encumbrances,” with no express reservation of any rights of the petitioner. The 33 acres on the south side of Secor Road were then further divided into smaller parcels through a series of conveyances. At one point, the property located on the south side of Secor Road went through foreclosure and, ultimately, Nathan Shulman became the owner of a portion of the lands on the south side of Secor Road. By deed dated April 4, 1950, Shulman conveyed a 12.5-acre parcel to Grove Hill Realty Company, the entity that was responsible for dividing the original 101-acre parcel through conveyances in 1908 and 1909. With the exception of the 12.5-acre parcel conveyed to Grove Hill Realty Company, the balance of the 33-acre parcel to the south side of Secor Road was formally subdivided to create a housing development then-entitled “Country Club Homes at Hartsdale.” As is chronologically relevant to the facts of this case, in 1963, the Town Board of the Town amended its zoning regulations to provide, subject to certain exceptions not raised by the parties as relevant to this case, that cemeteries then in existence were permitted uses, but that the “[l]and area of existing cemeteries may not be increased.” The Town’s current zoning ordinance words this prohibition on the expansion of cemeteries as follows: “Cemeteries and crematories in existence on January 1, 1963, are permitted, provided that the land area of the cemetery shall not be increased” (Greenburgh Town Code §285-36[B]).
By deed dated November 30, 1971, Grove Hill Realty Company conveyed the aforementioned 12.5-acre parcel to the petitioner. Accordingly, as of November 30, 1971, and continuing through today, the petitioner has been the common owner of approximately 63 acres to the north side of Secor Road and approximately 12.5 acres to the south side of Secor Road. The 12.5-acre parcel to the south of Secor Road lies within a residential zoning district permitting the construction of single-family homes. In 1994, the petitioner applied for permission to construct a “maintenance facility” on the 12.5-acre parcel. In connection with the application, the petitioner sought a use variance to relieve it from the zoning restriction that the property be used only for single-family homes. However, that application was withdrawn in the face of community opposition. In 2001, the petitioner applied for and obtained a building permit to construct a “New Single Family Residence (Caretaker’s Cottage)” on the 12.5-acre parcel. That structure was built, and continues to occupy the site. On December 10, 2013, the petitioner applied for a building permit to remove the existing cottage on the property and replace it with a new 5,000 square-foot “caretaker cottage with attached garage.” The proposed attached garage would be used “to store equipment, materials and supplies associated with the caretakers’ duties.”
