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Danger Zoning: Denial of Crematory Plans by Local Planning and Zoning Commissions

A town zoning commission in Wilkes-Barre, Pennsylvania recently denied a local funeral home owner’s proposal to establish a crematory inside the town.  The story in the Citizen’s Voice, a local newspaper, reported on the denial.  This is not the only instance in which a town has denied a plan to establish a crematory inside a city.  For example, in Peters Township in Pennsylvania, the city planning commission sent a recommendation to deny a request for a special exemption for a crematory (the planning commission also denied a proposed amendment to the zoning ordinance that would have allowed the crematory).  See Andrea Zrimsek, Planning Commision Votes to Deny Crematory, Zoning Ordinance Amendment, Peters Patch (Mar. 16, 2011) 

Often, these proposals are opposed, not just by zoning commissions, but by local residents.  In fact, in both of the cases mentioned above, it appears that one of the driving factors in the commissions’ decisions was public opposition from local residents. While residents express a variety of concerns, the largest concern generally seems to be air quality and emission issues.  In addition to emissions concerns, residents are often worried about the possibility of mercury being released into the air, which can occur when a corpse with mercury amalgam dental fillings is cremation.

Despite the fact that the most frequent public concern regarding crematories seems to be emissions issues, there is very little uniformity in how crematories are regulated.   First, there is relatively little emissions regulation for crematories on the federal level, other than general EPA emissions rules.  While the EPA specifically regulates “other solid waste incineration units,” (“OSWI”), crematories fall outside this definition because the EPA does not consider human remains to be “solid waste.”  This means that the EPA’s solid waste combustion unit emissions regulations, as well as requirements for operator training and performance testing and monitoring also do not apply to crematories.  See Standards for Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid 70 Fed. Reg. 74,870, 74,881 (Dec. 16, 2005) (to be codified at 40 C.F.R. pt. 60).  The lack of federal regulation means that crematory regulation generally occurs at the state or local level.

At the state and local level there is little uniformity in crematory regulation.  Some jurisdictions, such as New York and California have extensive regulation for crematories.  Others have very little, only imposing general emissions limits.  This means that often the decisions about whether a plan to operate a crematory is or is not approved falls to local planning or zoning commissions, who often are left with little or no statutory guidance.  This lack of statutory guidance leads to a serious problem for potential operators: lack of predictability.

As noted above, public opinion seems to have a large amount of sway in zoning decisions.  In Wilkes-Barre, Mr. Leffler presented evidence and live testimony regarding crematory emissions and safety but was still denied.  Comments from local residents quoted in the news article seem to indicate that residents might oppose the crematory proposal regardless of any evidence about safety, because of their instinctual beliefs about crematory emissions.

The large amount of uncertainty and the large role that public opinion seems to have taken on in zoning and city planning decisions highlights the need for clear statutory guidance at the local level.  Clear statutory rules would provide planning and zoning commissions with the guidance they need to make accurate decisions, and can provide a greater level of certainty for business owners when considering whether to spend the time and money to put a proposal together.  If clearer statutory guidance is not developed, I believe stories like this will continue to occur.

Donald C. Morgan 

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