Does New York's requirement that a city or village consent to locate a new cemetery apply statewide, or only inside Suffolk County?

Plain-English summary

The town attorney for Deer Park asked the AG about an interpretive puzzle in the cemetery siting statute. Not-for-Profit Corporation Law § 1506(b) has two subdivisions. The first says no cemetery may be located in any city or village without the consent of the city legislative body or village trustees. The second says no cemetery may be located in any town outside of an incorporated village in Suffolk County without consent of the town board. The question was whether the Suffolk County limit in subdivision 2 also limited subdivision 1, leaving only Suffolk County cities and villages with a consent requirement.

The AG concluded no. The two subdivisions do different work. Subdivision 1 is a statewide rule for city and village siting. Subdivision 2 adds a layer in Suffolk County: a town board there must consent to a cemetery in the unincorporated parts of the town. Because cities are separate from towns as a matter of New York municipal organization, the two provisions do not overlap and there is no inconsistency. The AG cited the Court of Appeals' canon from People ex rel. NY C & H RR Co. v Woodbury: when statutory words are free from ambiguity and clearly express legislative intent, they get their naturally intended meaning.

So in practice, anywhere in New York, a new cemetery in a city needs city legislative consent, and a new cemetery in a village needs village trustee consent. In Suffolk County, a new cemetery in the unincorporated portion of a town also needs town board consent. Outside Suffolk County, a town does not have that veto on cemeteries in its unincorporated areas.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does Suffolk County get its own town-consent rule?

The opinion does not explore the legislative history. New York's statute books contain a number of Suffolk-specific provisions reflecting local land-use pressures and the size of unincorporated areas there. The point of the opinion is interpretive, not policy: the second subdivision adds a Suffolk-only requirement and does not nullify the statewide consent rule for cities and villages.

What does "incorporated village" mean for this rule?

It means a village formally incorporated under New York's Village Law, distinct from the surrounding town. A cemetery proposed inside such a village is governed by subdivision 1 (village trustee consent). A cemetery proposed in the parts of a Suffolk County town that fall outside any incorporated village picks up subdivision 2's additional town board consent requirement.

What if a cemetery is proposed at the boundary of a city and a town?

The opinion does not directly address that, but the analytical framework follows the formal municipal lines. The portion of any parcel inside a city falls under subdivision 1's city-consent rule. A portion in unincorporated Suffolk County town territory adds subdivision 2's town board consent. Outside Suffolk County, town territory itself triggers no consent requirement under § 1506(b).

Does the consent rule apply to existing cemeteries that want to expand?

The statute speaks to whether a cemetery "shall hereafter be located." Expansion of an existing cemetery onto previously undedicated land is generally treated as a new siting, but the opinion does not address that question directly. Cemetery corporations and municipal counsel should check current cemetery regulation under § 1506 and the Cemetery Board's rules.

Is the cemetery consent rule subject to zoning?

This opinion is limited to the consent requirement under § 1506(b). Cemeteries are also subject to local zoning and to oversight by the New York State Cemetery Board under separate provisions of the Not-For-Profit Corporation Law. The consent requirement is independent of those other approvals.

Background and statutory framework

Not-for-Profit Corporation Law § 1506(b) reads in full:

"Consent of local authorities. (1) No cemetery shall hereafter be located in any city or village without the consent of the local legislative body of such city, or the board of trustees of such village. (2) No cemetery shall hereafter be located in any town, outside of an incorporated village in Suffolk county, without the consent of the town board of such town."

The AG applied the canon from People ex rel. NY C & H RR Co. v Woodbury, 208 NY 421 (1913): unambiguous statutory text gets its naturally intended meaning. Subdivision 1, by its terms, applies in "any city or village" without limitation; subdivision 2, by its terms, applies in "any town, outside of an incorporated village in Suffolk county." The two rules sit alongside each other.

Citations

• Not-For-Profit Corporation Law § 1506(b)(1) (statewide city/village consent for cemetery siting); § 1506(b)(2) (Suffolk County town-board consent for unincorporated-area siting).
• People ex rel. New York C & H RR Co. v Woodbury, 208 NY 421 (1913) (statutory interpretation: unambiguous text gets natural meaning).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-7_pw.pdf

Original opinion text

NOT-FOR-PROFIT CORPORATION LAW § 1506(b).
Section 1506(b) of the Not-For-Profit Corporation Law
requires on a State-wide basis that the legislative body of a
city or village consent to the proposed location of a cemetery
within these municipalities. Additionally, in Suffolk County a
cemetery may not be located in an area of a town outside of an
incorporated village without the consent of the town board.
February 27, 1997

Randall V. Coffill, Esq.
Town Attorney
Town of Deer Park
P. O. Box 3139
Port Jervis, NY 12771

Informal Opinion
No. 97-7

Dear Mr. Coffill:
You have asked whether section 1506(b) of the Not-for-Profit
Corporation Law, relating to the location of cemeteries, is
applicable outside Suffolk County.
Section 1506(b) of the Not-for-Profit Corporation Law
states:
Consent of local authorities. (1) No cemetery
shall hereafter be located in any city or
village without the consent of the local
legislative body of such city, or the board
of trustees of such village. (2) No cemetery
shall hereafter be located in any town,
outside of an incorporated village in Suffolk
county, without the consent of the town board
of such town.
You have inquired whether the provisions of subdivision 2,
which require the consent of the town board of any town in
Suffolk County before a cemetery may be located in the area of
the town outside of any village, restricts the application of
subdivision 1 to cities and villages in Suffolk County.
We see no basis for this interpretation of the statute.
Under subdivision 1, before a cemetery may be located in any city
or village, the consent of the local legislative body of the city
or of the board of trustees of the village is required. By its
terms, this provision applies on a State-wide basis.

2

Subdivision 2 requires the approval of the town board of any
town in Suffolk County prior to the location of a cemetery in any
area of that town outside of an incorporated village. It is
clear that this additional requirement of town board approval
only applies in Suffolk County.
There is no inconsistency between the provisions of
subdivision 1 and subdivision 2 of section 1506(b).
Subdivision 1 applies throughout the State, requiring approval of
cemeteries in incorporated areas by the village or city where
they are proposed to be located. Subdivision 2 adds a
requirement that applies only in Suffolk County -- approval by
the town board of a cemetery to be located in the area of the
town outside any village. In that cities are legally separate
from towns, there is no overlap between the two subdivisions.
Subdivision 2 is an additional requirement in Suffolk County.
When the words of a statute are free from ambiguity, and
express plainly and clearly the legislative intent, they must be
accorded their naturally intended meaning. People ex rel. New
York C & H RR Co. v Woodbury, 208 NY 421 (1913).
We conclude that section 1506(b) of the Not-For-Profit
Corporation Law requires on a State-wide basis that the
legislative body of a city or village consent to the proposed
location of a cemetery within these municipalities.
Additionally, in Suffolk County a cemetery may not be located in
an area of a town outside of an incorporated village without the
consent of the town board.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Yours very truly,

JAMES D. COLE
Assistant Attorney General
in Charge of Opinions