Tonawanda News

May 10, 2014

Appeals court rules that Amigone must stay in Town

By Jessica Bagley jessica.bagley@tonawanda-news.com
The Tonawanda News

Tonawanda News — An appellate division of the New York State Supreme Court upheld a ruling on Friday that prevented Amigone Funeral Home from moving its controversial crematory on Sheridan Drive in the Town of Tonawanda. 

Those who live near Amigone, located at 2600 Sheridan Drive, have complained about acrid smells and smoke coming from the facility for 20 years. The funeral home company first looked into moving the operation in 2012, after signing an agreement with the state attorney general’s office to halt operations for six months. 

When the contract was signed, Attorney General Eric T. Schneiderman said he reserved the right to file charges against Amigone if the company began using the crematory without moving it or installing additional environmental controls. 

Amigone then tried to move the crematory, but the state cemetery board rejected the company’s request. 

In its decision, the board said that combined funeral entities and crematories were prohibited in 1998, but that through a grandfathering exception, Amigone was allowed to continue operating its combined facility on Sheridan Drive.

“This provision only permits the funeral entity to continue to operate the same crematory it was operating before that date,” the document reads. 

As a result, the board said that there was “no authority for moving a crematory operation to a new location.”

Amigone then challenged the board’s decision, and in March 2013, Erie County Supreme Court Justice John Michalek announced that he would side with the state cemetery board’s ruling. In another attempt to move, Amigone appealed again, taking the matter to the fourth appellate division in Rochester. 

After hearing the case earlier this year, the appellate judges filed their decision on Friday, rejecting Amigone’s appeal.

“We conclude that the cemetery board’s interpretation of the statute, which comports with the statute’s plain language, purpose and legislative history, and gives meaning to every phrase, is sound,” the decision states. 

Many residents in the area were hoping that the crematory would be allowed to move to an industrial area so that the issue could be resolved, Rebecca Newberry, of the Clean Air Coalition, said.

“It’s just disappointing that the state won’t allow them to move,” she said. 

Another legal landmark in Amigone’s story occurred last month, when State Supreme Court Judge Henry Nowak dismissed a petition for a permanent injunction that would have prevented the company from restarting crematory operations at the town location. 

The state attorney general’s office filed the lawsuit in September, arguing that the injunction would prevent the company from conducting future harm against the nearby residents, who have complained of offensive odors, soot and excessive noise for decades.

But in his decision, Nowak ruled that a six-month assurance of discontinuance agreement, which Amigone and the state signed in July 2012, is still in effect. The terms of that agreement still stand, Nowak said, so an injunction is not necessary.

“If respondents wish to open the crematory at the current location, they must first provide two weeks actual written notice to the attorney general advising of any new plan to renew operation,” Nowak wrote. 

Amigone must also hire a consulting firm to develop recommendations for changes that would ensure the crematory’s operations are compliant with the law and address residents’ concerns. And at least seven days before reopening, Amigone must submit a report of the firm’s suggestions to the Department of Environmental Conservation and the attorney general.

Contact reporter Jessica Bagley at 693-1000 ext. 4150, or follow her on Twitter @JessicaLBagley.