N.Y. Not-for-Profit Corporation Law § 1509: Cemetery rules and regulations; charges and lot tax assessments

§ 1509. Cemetery rules and regulations; charges and lot tax assessments.

(a) Rules and regulations. The directors of a cemetery corporation

shall make reasonable rules and regulations for the use, care,

management and protection of the property of the corporation and of all

lots, plots and parts thereof; for regulating the dividing marks between

the lots, plots and parts thereof; for prohibiting or regulating the

erection of structures upon such lots, plots or parts thereof; for

preventing unsightly monuments, effigies and structures within the

cemetery grounds, and for the removal thereof; for regulating the

introduction and care of plants, trees and shrubs within such grounds;

for the prevention of the burial in a lot, plot or part thereof, of a

body not entitled to burial therein; for regulating or preventing

disinterments; for regulating the conduct of persons while within the

cemetery grounds; for excluding improper persons and preventing improper

assemblages therein. The directors may prescribe penalties for the

violation of any such rule or regulation, not exceeding twenty-five

dollars for each violation, which shall be recoverable by the

corporation in a civil action.

(b) Charges for services. The directors of a cemetery corporation

shall fix and make reasonable charges for any acts and services ordered

by the owner and rendered by the corporation in connection with the use,

care, including perpetual, annual and special care, management and

protection of lots, plots and parts thereof. In determining said charges

the directors shall consider the propriety and the fair and reasonable

cost and expense of rendering the services or performing the work for

which such charges are made.

(c) Cemetery board approval. (1) A cemetery corporation's rules,

regulations and original charges shall not become effective unless and

until approved by the cemetery board as hereinafter provided. (2) The

directors of any cemetery corporation, organized on or before August

thirty-first, nineteen hundred forty-nine, shall file in the office of

the cemetery board the name and address of the corporation together with

its rules, regulations and charges, and a statement showing the basis

upon which they were made, within ninety days after the time this

section as hereby amended takes effect. The directors of any cemetery

corporation organized on or after September first, nineteen hundred

forty-nine, shall file in the office of the cemetery board the name and

address of the corporation together with its rules, regulations and

charges, and a statement showing the basis on which they were made,

within ninety days after the date of the filing of the certificate of

incorporation in the department of state. (3) Within six months after

the date of such filing, the cemetery board shall make and file in its

office an order approving, disapproving or amending such rules,

regulations and original charges in whole or part. Such rules,

regulations and charges, if approved with or without amendment, shall

become effective as approved upon the filing of such order by the

cemetery board in its office. The cemetery board shall notify the

directors of the action taken by it and its reasons therefor by

registered mail addressed to the corporation at its principal office. In

making its determination as to the schedule of charges the cemetery

board shall consider the propriety and the fair and reasonable cost and

expense of rendering the services or performing the work for which such

charges are made. In passing upon the rules and regulations, the

cemetery board shall consider the interests of the members of the

corporation and the public interest in the proper maintenance and

operation of burial grounds. (4) The rules, regulations and charges of

any cemetery corporation existing on or before August thirty-first,

nineteen hundred forty-nine, shall remain in effect until the cemetery

board files in its office an order pursuant to the provisions of

subdivision three hereof. A cemetery corporation organized on or after

September first, nineteen hundred forty-nine, may enforce the rules,

regulations and charges filed by it in the office of the cemetery board

until the cemetery board files in its office an order pursuant to the

provisions of subdivision three hereof.

(d) Services not in list of charges. In the event that a cemetery

corporation provides any services not included in the list of charges,

and for which a charge cannot reasonably be fixed in advance, the

charges made therefor shall be reviewable by the cemetery board. In the

event that the cemetery board determines that an excessive, unauthorized

or improper charge has been made for such services or that the services

have not been properly performed, it may direct the cemetery corporation

to pay to the person from whom such charge was collected a sum

equivalent to three times the amount of the excess as determined by the

cemetery board, or in the case of work not properly performed, it may

direct the cemetery corporation to perform the work properly.

(e) Amendment and modification. (1) The rules and regulations of a

cemetery corporation may be amended or added to by the corporation by

filing such proposed amendments or additions in the office of the

cemetery board but no such amendment or addition shall be effective

unless and until an order approving such amendments or additions is made

by the cemetery board and filed in its office in the same manner as that

applicable to the original filing of the rules, regulations and charges

of the cemetery corporation. (2) The charges of a cemetery corporation

may be amended or added to by the corporation by filing an application

containing such proposed amendment or addition in the office of the

division of cemeteries and shall be processed in accordance with

subparagraph three of this paragraph. The cemetery board shall consider

the propriety and the fair and reasonable costs and expense of rendering

the services or performing the work for which such charges are made. The

effective rules, regulations or charges of a cemetery corporation may be

amended, modified or vacated by the cemetery board at any time. The

cemetery board shall notify the directors of the action taken by it and

its reasons therefor by registered or certified mail addressed to the

corporation at its principal office. In amending, modifying or vacating

any rule, regulation or charge, the cemetery board shall be guided by

the standards set forth in subparagraph three of paragraph (c) of this

section. (3) Any application setting forth the proposed amendment of, or

addition to, the charges of a cemetery corporation as provided for by

subparagraph two of this paragraph shall be processed in accordance

either with clauses A, B and C of this subparagraph or in accordance

with clause D of this subdivision.

A. Within thirty-five days following receipt of the application, the

board or the division may request from the cemetery corporation any

additional information or documentation deemed necessary to complete

such application, and such application shall not be complete for the

purposes of compliance with this subparagraph until the requested

information has been received. If no such request is made, the

application shall be deemed to be complete on the thirty-fifth day after

its receipt by the division.

B. An application setting forth the proposed amendment of, or addition

to, the charges of a cemetery corporation shall be deemed to be approved

for any cemetery corporation holding, including unrestricted funds, cash

and investments totalling less than four hundred thousand dollars, if

the board does not object to the proposed charges within sixty days

following: (i) the date on which the application shall have been deemed

to be complete or (ii) the date on which the requested information

necessary to complete the application shall have been received,

whichever is later. If the board objects to the proposed charges, it

shall notify the directors in writing with the reasons therefor, such

notice to be mailed by registered or certified mail to the corporation

at its principal office, not less than three business days before the

end of such sixty day period. If the board approves such amendment of or

addition to the charges, it shall do so by order.

C. An application setting forth the proposed amendment of, or addition

to, the charges of a cemetery corporation shall be deemed to be approved

for any cemetery corporation holding, including unrestricted funds, cash

and investments totalling more than four hundred thousand dollars, if

the board does not object to the proposed charges within ninety days

following: (i) the date on which the application shall have been deemed

to be complete or (ii) the date on which the requested information

necessary to complete the application shall have been received,

whichever is later. If the board objects to the proposed charges, it

shall notify the directors in writing with the reasons therefor, such

notice to be mailed by registered or certified mail to the corporation

at its principal office, not less than three business days before the

end of such ninety day period. If the board approves such amendment of

or addition to the charges, it shall do so by order.

D. A cemetery may apply to the cemetery board for an increase in any

or all of its approved charges by submitting a schedule to the cemetery

board showing its currently approved charges and the proposed charges

after applying the employment cost index to said charges as it appears

in the United States Department of Labor, Bureau of Labor Statistics,

Series ECU10001A, not seasonally adjusted, total compensation, civilian,

twelve month percent change for all workers schedule or any subsequent

schedule that may be adopted by the United States Department of Labor,

Bureau of Labor Statistics, as a replacement for the aforementioned

schedule. Any application by a cemetery under this subparagraph will

prohibit application under subparagraph two of this paragraph for one

year from the effective date of the approved increase under this

subparagraph. An application setting forth the proposed changes in

charges shall be deemed to be approved if the board does not object to

the proposed charges within sixty-days following the date on which the

application is submitted by a cemetery. If the board objects to the

proposed charges, it shall notify the directors in writing with the

reasons therefore, such notice to be mailed to the corporation at its

principal office, not less than three business days before the end of

such sixty day period. If the board approves such amendment of or

addition to the charges, it shall do so by order. The cemetery board

shall not approve application by a cemetery under this subparagraph if

(i) the proposed percentage increases exceed the employment cost index

percentages as provided in this subparagraph; (ii) there have been

invasions of the permanent maintenance fund by the cemetery that have

not been repaid or are not currently being repaid; (iii) the cemetery is

currently not in compliance with any court order or any cemetery board

order that is not under judicial review under paragraph (d) of section

1504; (iv) the cemetery has not filed in a timely manner its annual

reports with the division of cemeteries as required under section 1508

(Reports by cemeteries); (v) all assessments as required under paragraph

(c) of section 1508 (Reports by cemeteries) and vandalism fund payments

as required under subparagraph two of paragraph (h) of section 1507

(Trust funds) have not been paid.

(f) Lot tax assessment. (1) If the funds of a cemetery corporation

applicable to the improvement and care of its cemetery, or applicable to

the construction of a receiving vault therein for the common use of lot

owners, be insufficient for such purposes, the directors of the

corporation, not oftener than once in any year and for such purposes

only, may, upon the prior approval of the cemetery board, which shall

determine the necessity and propriety thereof, levy a tax on some basis

to be determined by the directors of such corporation, but no such tax

shall exceed two dollars on any one lot, except that with the written

consent of two-thirds of the lot owners or by the vote of a majority of

the lot owners present at an annual meeting, or at a special meeting

duly called for such purpose, such tax may be for an amount which shall

not exceed a total of five dollars per annum per lot, and the tax on any

one lot shall not exceed five dollars per annum but the taxes may be

levied upon each lot in the first instance for a sum sufficient for the

improvement and care of the lot, but no greater sum than five dollars

shall be collected in any one year. The whole tax levied may be

collected in sums of five dollars in successive years in the manner

herein provided. (2) Notice of such tax shall be served on the lot

owners or where two or more persons are owners of the same lot, on one

of them, either personally, or by leaving it at his residence, with a

person of mature age and discretion, or by mail, if he resides in a

city, town or village where the office of the corporation is not

located, or in case the residence or whereabouts of the owner cannot be

ascertained, by publication once a week for four successive weeks in a

newspaper published in the town where such cemetery is located, or if no

newspaper is published in such town then in some newspaper published in

the county where such cemetery is located. (3) If such tax remain unpaid

for more than thirty days after the service of such notice, the

president and secretary of the corporation may issue a warrant to the

treasurer of the corporation, requiring him to collect such tax in the

same manner as school collectors are required to collect school taxes;

and such treasurer shall have the same power and be subject to the same

liabilities in executing such warrant as a collector of school taxes has

or is subject to by law in executing a warrant for the collection of

school taxes. (4) If the taxes so levied remain unpaid for five years

after the levying of such tax the amount thereof with interest shall be

a lien on the unused portion of the lot which is subject to such tax,

and no portion of the lot so taxed shall be used by the owner thereof

for burial purposes, while any such tax remains unpaid. (5) If at the

expiration of five years from the date of the service of the first

notice of assessment as herein provided, any such assessment or the

interest thereon shall remain unpaid, the corporation may sell the

unused portion of such lot at public auction upon the cemetery grounds,

in the following manner: If the person owning such lot resides within

the state, a written notice, under the seal of such cemetery

corporation, if it have a seal, and the hand of the president or

secretary thereof, stating the amount of such tax or taxes unpaid and

that such unused portion of such lot will be sold at a time therein to

be specified, not less than twenty days from the date of the service of

such notice, shall be personally served upon such owner; if such owner

is not a resident of the state, or if the place of his residence cannot

with due diligence be ascertained, or if, for any other reason

satisfactory to the court, personal service cannot with due diligence be

made upon such owner, such cemetery corporation, or any of its officers,

may present a duly verified petition stating the facts to the county

court of the county in which such cemetery lands are situated, or to the

supreme court, and such court may upon satisfactory proof, by its order,

direct the service of such notice in the manner provided by the civil

practice law and rules for the substituted service of a summons. The

president or secretary of such corporation, or any suitable and proper

person appointed by it or by the court, upon filing proof of publication

and service of such notice as provided by section three hundred fourteen

of the surrogate's court procedure act may make such sale, and such sale

may be adjourned from time to time for the accommodation of the parties

or for other proper reasons. Previous notice of such sale shall be

posted at the main entrance of the cemetery. Prior to such sale such

corporation shall cause such lot to be resurveyed and replotted showing

the part thereof not used for burial purposes and only such unused

portion shall be sold. The cemetery corporation may at any such sale

purchase any such lots or parts of lots. The surplus remaining after

paying all assessments, interest, cost and charges shall be set aside by

the corporation, as a fund for the care and improvement of the portion

of such lot that has been used for burial purposes. In case the proceeds

of such sale shall amount to more than thirty dollars the person making

it shall make his report, under oath, to the court, of the proceedings

and shall state the amount for which such lot was sold and that it was

sold to the highest responsible bidder, together with the names of the

purchasers, and the court may and in a proper case shall, by order,

confirm the sale; in all other cases the person making such sale shall

file in the office of the county clerk of the county in which the

cemetery lands are situated a like report duly verified; on the filing

of such order of confirmation or such report, as the case may be, the

ownership of the unoccupied portion of such lot shall vest in the

purchaser thereof. (6) The directors of any such corporation may make a

contract with a lot owner which shall provide for the payment by him of

an agreed gross sum in lieu of further taxes and assessments and that

upon the payment of such gross sum the lot of such owner shall be

thereafter exempt from taxes and assessments.

(g) Purchases through office of general services. Notwithstanding the

provisions of any general, special or local law, any officer or agent of

a cemetery corporation subject to the provisions of this article

authorized to make purchases of commodities and services may make such

purchases through the office of general services subject to such rules

as may be established from time to time pursuant to section one hundred

sixty-three of the state finance law; provided that any such purchase

shall exceed five hundred dollars and that the cemetery corporation for

which such officer or agent acts shall accept sole responsibility for

any payment due the vendor. All purchases shall be subject to audit and

inspection by the cemetery corporation for which made. Two or more

cemetery corporations may join in making purchases pursuant to this

section and, for the purposes of this section, such groups shall be

deemed a cemetery corporation.