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Volume 1 - Opinions of Counsel SBEA No. 24

Opinions of Counsel index

Cemeteries exemption (use for cemetery purposes) - Real Property Tax Law, § 446; Real Property Law, § 450:

Cemetery lands and portions thereof which are to be used for interments within a reasonable time, are entitled to the exemption provided by section 450 of the Real Property Law, and such exemption includes levies for cost of capital improvements.

The exemption from taxation and from special ad valorem levies and special assessments on cemetery lands is provided by section 450 of the Real Property Law which is incorporated by reference in section 446 of the Real Property Tax Law. Subdivision 1 of section 421 of the Real Property Tax Law also provides an exemption on real property owned by a corporation or association organized exclusively for cemetery and other purposes recited therein, and where such property is being used exclusively for such exempt purposes. An analysis of the cases, however, indicates that whenever the courts were called upon to determine the liability of cemetery lands for levies for local improvements, the determination appears to have been based on the provisions of section 450 of the Real Property Law, rather than on the provisions of the Real Property Tax Law (Matter of City of New York, Jerome Avenue, 192 N.Y. 459, 85 N.E. 755; People ex rel. Buffalo Burial Park Assoc. v. Stilwell, 190 N.Y. 284, 83 N.E. 56; People ex rel. Oak Hill Cemetery Assoc. v. Pratt, 129 N.Y. 68, 29 N.E. 7; Matter of White Plains Presbyterian Church, 112 App. Div. 130, 98 N.Y.S. 63; In re Perry Avenue, 118 App. Div. 874, 103 N.Y.S. 1069; In re Grandview Avenue, 165 N.Y.S. 238).

In interpreting the provisions of section 450 of the Real Property Law, the courts have held that cemetery lands are exempt from taxation and from special ad valorem levies and special assessments for local improvements including assessments for the cost of capital improvements (In re Perry Avenue, supra; In re Grandview Avenue, supra; St. Stanislaus Church Society v. Erie County, 153 Misc. 511, 275 N.Y.S. 84).

As to improvements to cemetery lands, the case of People ex rel. Woodlawn Cemetery v. Chambers, 91 N.Y.S.2d 774 held that a service yard, on which structures for the storage of equipment used to maintain the cemetery had been built, was exempt under section 450 since its use was necessary and incidental to the maintenance of a cemetery. It appears that a building used to store cemetery records and afford offices for those operating a large cemetery is also necessary to its proper maintenance. In a more direct sense, a stone receiving vault is necessary to the operation of the cemetery. There also can be no question about the mausoleum as it is actually used for the burial of bodies.

We are of the further opinion that a chapel and a residence of a chaplain are not covered by section 450. The case of In re White Plains Presbyterian Church, 112 App. Div. 130, 98 N.Y.S. 63 held that a church building located in a cemetery was not exempt under section 450. Nor do we feel that the residence of a chaplain would be considered a cemetery use or a use necessary and incidental to the operation and maintenance of the cemetery so as to qualify.

However, a chapel clearly is used exclusively for religious purposes and entitled to the exemption accorded under section 421 of the Real Property Tax Law. A chaplain’s residence is a borderline case. Section 462 of the Real Property Tax Law provides the same exemption given by section 421 to property owned by a religious corporation while actually used by the officiating clergyman thereof for residential purposes. If a religious organization can show that the clergyman’s dwelling is the residence of an officiating clergyman, that is, one presiding over and directing spiritual affairs of the church as contrasted with temporal ones, then we believe the dwelling would qualify for exemption.

It should be noted that the exemption provided by sections 421 and 462 of the Real Property Tax Law includes exemption from special ad valorem levies and special assessments to the extent provided in section 490 of such law. Section 490 provides that real property exempted from taxation pursuant to the sections specifically recited therein shall also be exempt from special ad valorem levies and special assessments except for those levies imposed for cost of capital improvements to enumerated utilities. Therefore, it is by virtue of this exception in section 490 imposing liability for the cost of capital improvements, that real property exempted from taxation and special assessments pursuant to sections 421 and 462 is liable for levies for the cost of capital improvements.

It is noted that although the above statute provides an exemption upon lands “actually used and occupied for cemetery purposes”, it has been held that actual interments do not have to be made in the ground in order to be entitled to the exemption (Hope Cemetery Assoc. v. Rose, 117 Misc. 457; 191 N.Y.S. 623; People ex. rel. Buffalo Burial Park Assoc. v. Stilwell, supra; St. Stanislaus Church Soc. v. Erie County, 153 Misc. 511, 275 N.Y.S. 84). “Property acquired for cemetery purposes is exempt from the time of its acquisition, even though not used, and it is not essential to insure exemption that graves should be in it . . .” (In re Grandview Ave., 165 N.Y.S. 238, 241, and cases cited therein). However, the cases which exempted portions of unused cemetery land indicate that the courts were satisfied that although no interments have as yet been made, the unused cemetery land would actually be used for interments within a reasonable time (People ex rel. Buffalo Burial Park Assoc. v. Stilwell, supra; St. Stanislaus Church Soc. v. Erie Co., supra).

Accordingly, based on the foregoing authorities, it is our opinion that cemetery lands and portions thereof which are to be used for interments within a reasonable time, would be entitled to the exemption provided by section 450 of the Real Property Law and such exemption includes levies for cost of capital improvements.

February 5, 1971

NOTE:  Construes law prior to L.1981, c.920.

Updated: